On Recklessness In British Criminal Law

It can be seen from the precedent cases in Britain, recklessness of British Criminal Law mainly has two forms: subjective recklessness and objective recklessness. Subjective recklessness means that the defendant has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it. And the risk must be one that it was unreasonable for the accused to take. Objective recklessness means the defendant performed an act that created a serious risk of harm either he recognized that there was some risk of that harm occurring, but nevertheless went on to take it; or he did not even address his mind to the possibility of there being any such risk and the risk was in fact obvious. During a long period, these two forms of recklessness are in a struggling state. Several typical cases in British history show the development of recklessness. They are : Cunningham(1957), Stephenson(1979), Caldwell (1982),Lawrence(1992),Reid(1992), RvG(2003). There is only subjective recklessness before 1982. After that, objective recklessness appears and develops rapidly. It strikes subjective reckless in many fields, but it didn't stand leading status in finally. In a contrary, it went to die. Now, objective recklessness just applies to two or three crimes. Subjective recklessness gets the leading status again. Recklessness in statute is also subjective recklessness. In academe, there are not only disagreements to objective recklessness but also to subjective recklessness, but more scholars support subjective recklessness.Subjective recklessness contains two parts. One is the defendant has foreseen the risk, the other is the risk is unreasonable. Objective recklessness includes subjective recklessness. The other part that the defendant did not even address his mind to the possibility of there being any such risk and the risk was in fact obvious is superposition to negligence. And there is a lacuna between objective recklessness and negligence. The lacuna is not objective recklessness but negligence. We can punish objective recklessness because the defendant doesn't recognize the obvious and serious risk. Of course the defendant punished should not be the person who has no cognitive ability such as the person who suffers from psychosis or the person who is too young to recognize but the person who can recognize in natural situation. The nature of recklessness is a kind of indifferent attitude which can be reflected from the action being to cause harm. When the result is the aim of the behavior, it is intention but not recklessness. But when the result is not the aim of the behavior, and the behavior can foresee the result is happening inevitably, it is division between intention and recklessness. When the result happens inevitably, it is intention. When the result happens possibly, it is recklessness. The difference between subjective recklessness and negligence is the behavior has foreseen the risk or not. The part of objective recklessness which distinguishes from subjective recklessness is actually negligence. Recklessness in Britain is similar to the criminal mental states of China. Objective recklessness is similar to indirect intention and overconfident default in China. The part of objective recklessness which distinguishes from subjective recklessness is similar to negligence fault in China.The criminal mental states of China such as indirect intention and overconfident fault are difficult to be distinguished clearly in theory or practice. To solve this problem, the Scholar Chu Huaizhi suggests we can use subjective recklessness for us. We will not distinguish indirect intention from overconfident fault. But it is not wise to copy recklessness. However, some theories of Subjective reckless and objective recklessness are valuable to China.