Gross Negligence and Recklessness

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Gross Negligence and Recklessness

In imposing criminal liability for a failure to recognise the risks,

obvious to a reasonable person, there are at least two factors:

the level of risk involved

The seriousness of the potential harm

Only where the possible harm is more serious and the risk is more

obvious, do we distinguish recklessness from carelessness and impose

liability. In assessing this, other issues may come in:

The social utility of the action

Thus, the surgeon who performs a necessary but dangerous operation may

realise that there is a high probability of serious harm or even death

but we do not blame him or her if the operation fails - we balance the

risks that are undoubtedly being taken against the social utility of

the activity. We regard skilled surgical care as socially useful and

do not regard the surgeon who kills a patient as reckless whereas a

player of 'Russian Roulette' would certainly be so, despite the odds

of 6-1 against, since that is an action of no social value whatsoever.

At this point, I am using the terms, 'reckless' and grossly negligent'

as synonymous but the former term has had an uncertain history. It can

be regarded as simply 'gross negligence' involving a major deviation

from the standards of the reasonable man, not a state of mind at all.

Alternatively it can be limited to those cases where the defendant

subjectively recognises the possibility of harm, subjectively

appreciates the risk but goes ahead anyway - in other words, instead

of gross negligence, it involves the conscious running of an

unjustifiable risk and as such is foresight.

In Cunningham (1957), the defendant tore...

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...is much higher

(more than mere carelessness) and the potential harm will be serious.

This standard applies to manslaughter

Caldwellrecklessness again involves the inadvertent taking of a risk,

which a reasonable person would not take. Again, the level of risk is

high and the potential for harm serious. This test has been

considerably restricted in recent years.

Cunninghamrecklessness involves the advertent taking of unjustified

risks, realising the risk but going ahead. The latter was much nearer

the idea of foresight, as was discussed in relation to malice

aforethought and murder (Hyam). This has an important role to play in

offences against the person under the 1861 Act and property offences

such as deception, which can involve lying recklessly (s.15 Theft Act

1968)

Finally intention - purposive conduct

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