The Pros And Cons Of Recklessness In Criminal Law

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Tom believes himself that he had the actus Reus (The actus Reus in criminal law consists of all elements of a crime other than the state of mind of the defendant. In particular, actus Reus may consist of: conduct, result, and a state of affairs or an omission) of the offence but that he did not have the mens rea (Latin for "guilty mind"; guilty knowledge or intention to commit a prohibited act). If tom is found to have the necessary mens rea, he can be charged with assault causing harm under S.3 of the Non-Fatal offences against the person act of 1997. It states under S.3 that it is defined as a person who assaults another causing him or her harm shall be guilty of an offence . If tom is convicted of this offence he faces “ on summary conviction,…show more content…
In terms of this particular story recklessness is the most reasonable conclusion for tom’s action. The next step is to examine whether it was a form of subjective or objective recklessness? Recklessness is defined as “A mental state characterized by a conscious and dangerous disregard of others’ safety, resulting in creation of a substantial risk of harm. Recklessness amounts to a greater degree of fault than negligence) . In terms or recklessness Tom may be testes for the two forms which include either subjective of objective recklessness. These tests were carried out in two cases the first was R V Cunningham which took a subjective test leading to the phrase of the “Cunningham recklessness. Cunningham recklessness asks the accused “did the defendant foresee the harm that in fact occurred, might occur from his actions, but nevertheless continue regardless of the risk”. In time this form of recklessness was questioned and so preceded this was the case of MPC V Caldwell . Caldwell expanded on what recklessness was by stating that “A person is reckless as to whether property is destroyed or damaged where: (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that…show more content…
A case which has a similar thought process as Tom is “Chief constable of Avon and Somerset V Shimmer . Both Shimmer and Tom had “miscalculated” the risk actually involved. Shimmer was then convicted of being reckless and causing criminal damage. Tom’s case is very similar in the form that tom believed he would make it past Mary without hurting her, but in fact ended up driving over her leg. Due to the evidence of the Shimmer case, I believe that Tom would be convicted of assault by means of recklessness. Even though Tom’s defence of him not seeing the risk before taking it would not hold up in court as “a reasonable man” would have seen the risk that could have happened with the actions he took. Also his wife Sandra who witnesses the entire incident should have placed more emphasis on the rick Tom was taking and the possible outcome as a result of the risk he was
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