The Gazette 1990

GAZETTE

JULY/AUGUST 1990

tendered was not wrong in law

because it fell within the definition

of recklessness in

R. v- Caldwell

[1982] AC 341 which he submitted

was applicable to a charge of

assault occasioning actual bodily

harm. Counsel for the appellant

submitted that it had no application

to such a charge. "Recklessness"

in the

Cunningham

sense meant

that the accused had foreseen that

harm might be done and yet had

gone oh to take the risk.

R. -v- Venna

[1976] QB 421, a

case of assault occasioning actual

bodily harm, the Crown had sought

to distinguish offences which were

assaults and offences like unlawful

and malicious wounding contrary

to section 20 of the 1861 Act

whose statutory definition con-

tained the word "maliciously",

where recklessness sufficed to

support the charge. The Court had

held, following

R. -v-

Bradshaw

(1878) 14 Cox CC 83, that the

element of

mens rea

in the offence

of battery was satisfied by proof

that the defendant intentionally or

recklessly applied force to the

person of another.

The Court in

R. -v- Venna

had

said:

"We see no reason in logic or in

law why a person who reck-

lessly applies physical force to

the person of another should be

outside the criminal law of

assault. In many cases the

dividing line between intention

and recklessness is barely

distinguishable".

Counsel for the Crown argued in

Spratt

that that no longer applied

to cases under sec t i on 47,

although it still applied under

sec t i on 20 and sec t i on 23

( un l awf u l ly

and

ma l i c i ous ly

administering a noxious thing).

R. -v- Venna

had been approved

in the House of Lords, by Lord

Elwyn-Jones, Lord Chancellor, in

DPP -v- Majewski

[1977] AC 443

and by Lord Diplock in

R. -v-

Caldwell

[1982] AC 341 as

authority for the proposition that

recklessness was enough to

constitute the necessary mens rea

in assault cases.

Counsel for the Crown had relied

Seymour

[1983] 2 AC 493,

where Lord Roskill had said:

, " ' Rec k l es s' should today be

given the same meaning in

relation to all offences which

involve 'recklessness' as one of

the elements un-less Parliament

has otherwise ordained."

Their Lordships could not believe

that by the use of those words the

House of Lords had intended to

cast any doubt either upon the

decision in

R. -v- Cunningham

more importantly the decision in

-v- Venna

.Their Lordships consider-

ed themselves bound by the de-

cision in

R. -v- Venna,

and the

appe l l an t 's

c on v i c t i on

was

accordingly quashed.

Henchy J in

The People -v-

Murray

[1977] IR 360 at 403

cons i de r ed

the

issue

recklessness in the context of Irish

Criminal Law. Henchy J stated that

he did not consider it proper to

construe either section 38 of the

Offences against the Person Act

1861

or section 1 of the

Criminal

Justice Act, 1964

in such a way as

to make those sections hardly ever

applicable to assaults on or murder

of policemen in plain clothers. In

the case of such an assault or

murder the required mens rea as to

the victim's occupation and activity

was a matter of intention or, in the

alternative, recklessness. Henchy J

stated that just as a person who

does not intend an assault may be

held guilty of an assault if he has

been reckless as to whether his

physical activity would have that

effect (

-v-

Venna

[1976] QB421),

so a person may be found guilty of

the capital murder of a Garda if it

is shown (a) that he murdered the

Garda and (b) that he was reckless

as to whether his victim was a

Garda acting in the course of his

duty.

Henchy J considered the test of

recklessness in that context was

well stated in the Model Penal Code

- s 2.02 (2) (c) - drawn up by the

American Law Institute:

"A person acts recklessly with

respect to a material element of

an offence when he consciously

disregards a substantial and

un j us t i f i ab le risk t hat the

material element exists or will

result from his conduct. The risk

must be of such a nature and

degree that, considering the

nature and purpose of the

ac t o r 's c ondu ct and the

circumstances known to him, its

disregard involves culpability of

high degree."

In dealing with whether simple

ignorance will displace reckless-

ness, Henchy J referred to

Professor Glanville

Williams

(Criminal Law; The General Part;

2nd ed. p. 152) where he had

written:

" A person who does not know

for certain whether or not a fact

exists may t h i nk t hat its

existence is probable, or only

possible; or he may have given

no thought to the question of

probability or possibility. The last

will be particularly likely if he

does not know the criminal law

and so does not realise the

relevance

the

f act

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