Criminal Law Coursework Example | Topics and Well Written Essays - 2500 words

Criminal Law - Coursework Example f reckless mens rea as well as evaluate Herring’s viewpoint with regard to, whether the current provisions in law are satisfactory in as far as reckless mens rea is concerned. Legally, recklessness implies the taking unwarranted risk. The term has brought about numerous debates with regard to the best test to determine it. In course of development of criminal law two main tests have been introduced; subjective and objective tests. R v Cunningham [1957] 2 QB 396 formed the base of testing recklessness. The case introduced subjective test. This means that the defendant’s ability to gauge the risk at hand is questioned as well as the actual action taken that result in the risk. In this regard, Cunningham recklessness seeks to find out whether the person was in a position to foresee the risk involved but then went ahead with actions despite the ability to foresee risks1. The subjective test was carried out in many other cases but was reviewed under the M.P.C v Caldwell [1982] AC 341. This case introduced the objective test which introduced the notion of, Failure of the defendant to take notice of a risk that was obvious and one which any reasonable person should have seen2. Introduction of Caldwell recklessness brought squabbles since it conflicted with Cunningham recklessness. It eventually turned out that both tests had weakness. The problem of subjective test is that it is based on the accused individual’s perception with regard to the matter at hand. The prosecution is thus tasked with proving that the accused person was able to foresee the risk but went ahead to engage in the act. However, it is not easy to prove a person’s state of mind. This test meant that whenever an accused person could prove inability to foresee the risk, acquittal was the only option. On the other hand, Objective (Caldwell recklessness) was also unfair because it led to convictions of many accused persons who, genuinely, were not able to foresee any risk. This aspect was