Introduction

Just as we have examined the contradictions and tensions within the law of intention, so we now repeat the task in relation to the other main form of mens rea, recklessness. Just as with intention, we will find that the law has had difficulty in achieving ‘clear and consistent definitions of words expressing its basic concepts’ (Williams, 1983, 73). As with intention, the law was consolidated and returned to a seemingly less conflicted state after twenty years of difficulty; yet the underlying problems may not have been resolved in this area either.

Between 1981 and the House of Lords’ decision in Caldwell and 2003 when it reversed itself in G and another, recklessness had two distinct and opposed meanings within the law. It could involve either doing an act and recognising that there is a risk that it may result in harm being caused, or doing an act without recognising the risk where that risk would be obvious to a reasonable onlooker. The ensuing problem was that while most common law offences and their statutory successors could be committed with the first, narrower, mental state, only some could be committed according to both forms, and there was no rhyme or reason as to their employment. Smith and Hogan (1999, 67) described the law prior to G and another as ‘indefensible’.