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Professor Williams and Conditional Subjectivism

Published online by Cambridge University Press:  16 January 2009

R. A. Duff
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Extract

Professor Williams has done much to explicate and defend the subjectivist account of mens rea, which makes conscious risk-taking central to the idea of recklessness. It is thus not surprising that he should be critical of the rulings in Caldwell and Lawrence; nor would I quarrel with many of his objections to those decisions. My concern here is with his own views on the proper definition of “recklessness,” and on the proper use of that definition, in the criminal law: for his Textbook of Criminal Law suggests, and his discussions of Caldwell show, that he is willing to extend the concept of recklessness beyond the strict limits of subjectivism. Such an extension is indeed warranted: but I will argue that it can be explained and justified only by a more radical revision of subjectivism than he seems to allow (I ignore Lawrence and reckless driving here: Professor Williams is willing to accept an objectivist account of recklessness as gross negligence in the context of reckless driving, so long as it retains a suitably subjective meaning in other criminal contexts (R.R. 273–275)).

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Articles
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The Cambridge Law Journal , Volume 41 , Issue 2 , November 1982 , pp. 273 - 285
Copyright
Copyright © Cambridge Law Journal and Contributors 1982

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References

1 Caldwell [1982] A.C. 341;Google ScholarLawrence [1982] A.C. 510.Google Scholar

2 London, Stevens, 1978; referred to as T.C.L. in the text.

3 “Recklessness Redefined” [1981] C.L.J. 252Google Scholar (referred to as R.R. in the text); “Divergent Interpretations of Recklessness” [1982] New Law Journal 289, 313, 336 (referred to as D.I.R. in the text).

4 Criminal Damage Act 1971, s. 1 (2).

5 See Smith, J. C. [1981] Crim.L.R. 392.Google Scholar

6 [1977] 1 W.L.R. 605.

7 Report on the Mental Element in Crime (No. 89, 1978).

8 Parker [1977] 1 W.L.R. 600.Google Scholar

9 Compare Murphy [1980] Q.B. 434.Google Scholar

10 See Hart, H. L. A., “Negligence, Mens Rea, and Criminal Responsibility,” in Hart, , Punishment and Responsibility (Oxford, Clarendon, 1968), p. 136.Google Scholar

11 We could then say that Parker was rightly convicted ( [1977] 1 W.L.R. 600), even if he “ did not notice “ the risk of damage to the telephone receiver, on the grounds that that risk was integral to his action of banging it down as a violent expression of angry frustration.

12 Compare Professor Williams's argument in his Criminal Law: The General Part, 2nd ed. (London, Stevens, 1961), §§ 54–55,Google Scholar that ignorance (as opposed to mistake) is consistent with recklessness as to circumstances.

13 To say that the defendant “would have altered his conduct if he had not thought that what he did was safe “ is ambiguous as between the claim that he would have altered it if he had not had a positive belief that what he did was safe and the claim that he would have altered it if he had believed that it was not safe. The first of these claims does ascribe to the defendant a positive belief in the safety of his conduct: but I do not see why we should make that claim of the careless door-opener. The second claim is more likely to be true of him, but does not ascribe to him any positive belief that his conduct was safe.

14 Compare too the justification he offers in D.I.R. for not applying the conditionally subjective test to “cases of intoxicated clumsiness”: “The fact that such an accident befalls a drunkard gives rise to no particular fear that the. same accident will happen to him again “ (D.I.R. 290).

15 In “Recklessness” [1980] Crim.L.R. 282;Google Scholar“Implied and Constructive Malice in Murder” (1979) 95 L.Q.R. 418;Google Scholar “Recklessness and Rape” (1981) 3 Liverpool Law Review 49, where it is also argued that an unreasonably mistaken belief should not always be taken to negate recklessness (as against Professor Williams's argument in D.I.R. 336–338).

16 Professor Williams comments (R.R. 258, n. 13) on my discussion of recklessness in [1980] Crim.L.R. 282. In my own defence I would note, first, that I did not take recklessness to be a matter of “emotional attitudes” or affective feelings as distinct from actions, but rather to be a matter of the practical attitudes which are expressed in a person's actions; secondly, that I did not cite the example of someone who checks an advertisement without adverting to the possibility that it might be false or misleading “ in support of the view that inattention can be as culpable as subjective recklessness,” but rather to illustrate the point that an agent may genuinely fail to notice an obvious possibility which he could easily have noticed (nor did I argue that all such agents should be regarded as reckless); and, thirdly, that an assailant may be genuinely (and callously) unaware of or blind to the fact that his assault endangers his victim's life, but that I would argue that this should not preclude a finding that he was reckless as to that danger.

17 I must thank Professor Williams for his helpful comments on an earlier draft of this paper: they have, I hope, enabled me to avoid at least some confusions and misinterpretations.