⇒ In general terms, being reckless refers to the taking of an unjustified risk.

⇒ There has been difficulty in determining what recklessness meant → at one stage there were two definitions of recklessness, known as Cunningham recklessness and Caldwell recklessness. However, the House of Lords has abolished Caldwell recklessness and so there is now only one kind of recklessness used.

⇒ There are two elements that need to be shown for Cunningham recklessness:

1. The defendant was aware that there was a risk that his or her conduct would cause a particular result.
2. The risk was an unreasonable one for the defendant to take.

⇒ In other words, Cunningham recklessness (or subjective recklessness, as it is sometimes known), will arise if the accused consciously takes an unjustified risk.

⇒ The first element only requires that the accused foresaw that there was a risk; it does not have to be foreseen as highly likely to occur. Furthermore, the question is whether the accused foresaw the risk, not whether the risk was obvious or would have been foreseen by a reasonable person (see, for example, R v Stephenson).

⇒ The second element is fairly straightforward as it is unlikely for there to exist a situation where it would be reasonable for the defendant to take a risk that a person will be injured.

⇒ NOTE: Caldwell recklessness is now abolished. However, it should be discussed for academic purposes...

⇒ The case of Caldwell changed the definition of recklessness: whereas in Cunningham recklessness was proved subjectively, in Caldwell recklessness was proved objectively.

⇒ In other words, in Caldwell recklessness, if there was an obvious risk of harm resulting from the defendant’s actions, regardless of whether the defendant had foreseen the harm, he/she would be acting recklessly. Thus, Caldwell recklessness differed from Cunningham recklessness because it included defendants who were not aware of an obvious risk.

⇒ Caldwell recklessness fell into disrepute because it punished defendants for failing to notice a risk which would have been obvious to a reasonable person. See, for example, Elliott v C.

⇒ Until this case, subjective (Cunningham) and objective (Caldwell) recklessness operated side by side. The House of Lords decided, in this case, that Caldwell recklessness had to go. See the case facts, R v G and R.

⇒ In Attorney-General’s Reference (No 3 of 2003) the Court of Appeal confirmed R v G and R and abolished Caldwell recklessness not just for criminal damage, but for all crimes which had used Caldwell recklessness. Thus, R v G and R now applies to all cases of criminal damage and Cunningham applies to all other offences involving recklessness.