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Q1. Caldwell [1982] AC341 was, in its time, regarded as one of the most important of criminal law cases. Can it now be consigned to history?
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Subject: Criminal Law Q1. Caldwell [1982] AC341 was, in its time, regarded as one of the most important of criminal law cases. Can it now be consigned to history? The case of Caldwell is considered to be one of the most important landmarks as it illustrates a turning point in how criminal recklessness is judged and sentenced This was because a new classification was created which did not restrict recklessness to subjective recklessness. This essay will discuss why Caldwell was important and whether in our modern day with the addition of newer cases this 1982 case should be consigned to history. Up to the decision of Caldwell, the prevailing approach of the courts was to limit recklessness, where it was referred to as an offence, but only in its subjective state. This limit was set by the Law Commission in 1978 , when it proposed that the test for recklessness was in subjective terms and was supported by The Criminal Law Revision Committee in 1980, whose Fourteenth report: Offences against the Person adopted the same meaning. In Cunningham , the court of Criminal Appeal approved the test, expounded by Professor Kenny in 1902. This states, “…in any statutory definition of a crime, “malice” must be taken not in the old vague sense of “wickedness” in general but as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (for example the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)”. It is important to note that the brackets make it explicit that the quote is being used in its subjective sense . The subjective state of recklessness is only present in the conscious mind when someone undertakes an unjustifiable risk. So a subjectively reckless person would be someone who could foresee and identify the risk(s) that may follow as a consequence of his action and he nevertheless proceeds with his action. If such a scenario as above can be found, intrinsic aspects such as being in a bad mood or uncaring towards the consequence, whether created as a product from the risk, materialise or not are made irrelevant and the charge of subjective recklessness will hold. It also follows that a person who consciously undertakes a risky exercise and is fully aware of the risks, but hopes the consequences will not be realised, is also considered to be subjectively reckless as the risk needed to create recklessness is simply any foreseeable possible risk that could occur. If in such a case, the foreseeable risk is virtual certainty, then the accused would be presumed to have intended the consequence to occur and there would be an overlap of concern between intention and subjective recklessness. However if one foresees the risk, in relation to a particular consequence not of itself sufficient to constitute subjective recklessness to that consequence, as with Caldwell, the risk would have to be unjustified. For example, in Reid, Law Lords, Keith, Ackner and Goff stated that undertaking a justified risk to avert an emergency would not be regarded as reckless. Such a case would have to be judged under generalisation and judged objectively. It is noteworthy to point out that even in a subjective recklessness state, the concept of objectivity is present. As with this sort of case and normal procedure, the idea that objectivity is present in something subjective, which creates many questions, such as, how beneficial to the victim or society is it necessary that the accused achieve the “reckless goal”? The answer is that if the risk were so slight that an ordinary person, having considered the matter, would have taken it, the accused would not be reckless.
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