The Extent to Which the Decision of the House of Lords in Gemmell and Richards has Clarified the Meaning of the Concept of Recklessness in English Criminal Law
The concept of ‘recklessness’ or being ‘reckless’ has been described
as causing injury without intending to do so. But not every case of
foresight amounts to recklessness as in order for a defendant to be
reckless then the risk of the action they have taken must be an
unreasonable one. A certain foresight of certainty must be taken into
account in which, is the action in which the defendant partaken in one
with a foreseeable outcome?
But all depend on the circumstance as driving 30mph on a busy road may
be reasonable while driving at 50mph may not be due to the increased
risk of accidents and the more serious the injuries would be if they
were to crash the car at a higher speed.
Also another fact is if the risk is minimal or only and ‘outside
chance’ then running the risk is more than likely going to be
unobjectionable but even that slight risk is enough to be put forward
as recklessness if the harm is serious enough and the act has no
But this has caused much confusion over the years do the need for
foresight as it was said that in recklessness that while the
defendant must foresee the possibility of doing the actus reus but he
need not seek or be motivated to bring it about.
Pre-1982 there was a understandable subjective test that the defendant
was guilty if they thought about the risk and then carried on with
their action and they were not guilty if you didn’t think about the
In Cunningham (1957) the defendant interfered with the coin-operated
gas meter in an unoccupied house in order to steal money from it. The
gas escaped, seeping into an adjoining house, and endangered the life
of the person living there. He was charged with “Maliciously
administering a noxious thing so as to endanger life”.
It was said by the court of appeal that “malice” required either
intention or recklessness and the latter meant that
“the accused has foreseen that the particular kind of harm might be
done, and yet has gone on to take the risk of it”
And so the court held that "maliciously" imports an awareness that an
act may have the consequence of causing some physical harm to some
other person, even if the harm foreseen was relatively minor.
This was backed up by Stephenson (1979) in which a schizopherenic
tramp lit a fire in a large haystack to keep warm, and in doing so
burnt down the barn casing £4000 worth of criminal damage and so at
the time two questions needed to be asked did he intend it? No he did
not, and was he reckless (subjectively as one the rule at the time)
and so no he wasn’t. Due to his condition the defendant might not of
been aware of the risk in the haystack.