Subject: "Risk takers" present problems for the courts. Critically discuss this statement with reference to the courts' management of defendants who claim "I did not think", "I did foresee a risk and took it but I intended no harm", "Awareness of a risk of harm could not have crossed my mind" and "It never occurred to me".
According to Jonathan Herring , "Mens rea" is a Latin phrase which means "guilty mind" and is used to describe the element of a criminal offence that relates to the defendant's mental state". It refers to what the defendant was thinking while acting, and is essential to a criminal conviction. "Mens rea" is the culpable state of mind which needs to be with the "actus reus" in order to constitute a criminal offence. The mens rea required varies from crime to crime and there are four different types of mens rea defined: intention, recklessness, negligence and knowledge.
"Risk takers" are normally only concerned with two types of mens rea: recklessness and negligence. They both refer to the way the accused appreciated the risk he/she took in doing his actions: did he/she foresee the risk and still go ahead with his actions? Was the risk he/she took unreasonable? Did the accused fail to consider a risk which would have been obvious to a reasonable person? Did the accused behave the in same way as a reasonable person would have?
[...] G and another overruled Caldwell recklessness and highlighted the fact that it was no longer relevant not only in criminal damages, but also for all crimes which had used Caldwell recklessness. To conclude, we can say that defining the mens rea of a defendant despite from being an essential part of a criminal conviction raises a lot of issues about the precise definition of its forms. When “risk takers” are concerned, it is hard to determine their exact state of mind at the time of the offence, as being confusing, or borderline between two kinds of mens rea. [...]
[...] Cunningham, Byrne J explained that recklessness meant that accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of Moreover, M. Brodie[4] argued that: mens rea of some kind is necessary” ii) For Mens rea, it is required that the appellant must intend to do the particular kind of harm that was done or, alternatively that he must foresee the that that harm may occur yet nevertheless continue recklessly to do the act iii) The judge misdirected the jury as to the meaning of the word “maliciously”. [...]
[...] In this case, the House of Lords made it clear that the test on gross negligence was completely objective, and does not depend on proof of Caldwell recklessness even though cases like R. v. Misra[9] have raised such an issue later on. Even though the definition of the different mens rea required by the criminal offences of “risk takers” seems to cover every case, it has not been always easy to precisely determine the mens rea of particular defendants. It has happened that cases are on the borderline between two types of mens rea, creating confusion on how they should be qualified. [...]
[...] “Risk takers” who claim to the Courts did not think” or did foresee a risk and took it but I intended no harm” can therefore be classified as reckless and their mens rea can in theory be qualified as Cunningham recklessness or Caldwell recklessness. However, we are going to see later that it is not always easy to follow the same logic for every case and the defendant's mens rea can be difficult to determine. “Risk takers” are not only charged with recklessness, their mens rea can also be qualified as negligence which is falling below the standard of ordinary reasonable man, either doing something he would not do, or not doing something he would do. [...]
[...] In the first part of this document, we can study the different types of mens rea required by the criminal offences of “risk takers”, and in the second part we are going to focus on the criticisms addressed to them and the problems they present to the Courts. As mentioned above, “Risk takers” may be convicted with two different mens rea, according to the circumstances of their actions: recklessness and negligence. According to Jonathan Herring[2], “risk-taking is at the heart of recklessness”. [...]
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