Discuss the Advantages and Disadvantages of Using the Subjective Test for Criminal Recklessness, as Used in the Case

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Discuss the advantages and disadvantages of using the subjective test for Criminal Recklessness, as used in the case of G and R (2003)

This essay will briefly discuss the meaning of criminal recklessness within the criminal law and the types of recklessness, and see what the current law states today. The essay will examine the advantages and disadvantages of using the subjective test (which is currently known today as Cunningham recklessness) regarding criminal recklessness which was used in the case of Gemmell and Richards (2003) 3 WLR 1060.

Within the criminal law offences require either proof of intention or proof of recklessness as the law is there to punish the people or organisations that end up causing damage or harm by taking reckless and unjustifiable risks, whereby it could result in a crime occurring towards a person or property (Molan, 2001). However, not all crimes will be punished through the criminal law therefore, it has to be decided if the risk they took was justifiable enough and their actions were beneficial socially by taking the risk in the first place. Hospitals have to take justified risks everyday whereby things can go wrong especially within the operating theatre. (Cross, 2010)

Recklessness is a type of Mens Rea (guilty mind) whereby the person takes risks that then leads to an Actus Reus (guilty act) occurring. Subjective and Objective are two types of recklessness that is considered within the criminal law and over time the law on recklessness has developed and changed and then fully evolved itself. Subjective asks if the defendant had foreseen the risks but went ahead and did it anyway which caused the crime as well as taking into consideration their emotional state of mind, the circumstances, as well as the level of their education. Objective with its much wider range in terms of the defendant’s behaviour says they don’t have to foresee the risk they just had to be proved in acting recklessly.

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