Recklessness (law)

In criminal law, recklessness (also called reckless disregard, dolus eventualis or unchariness) is one of the four possible classes of mental state constituting mens rea (the Latin for "guilty mind"). To commit an offence of ordinary as opposed to strict liability, the prosecution must be able to prove both a mens rea and an actus reus; i.e., a person cannot be guilty of the offence for one's actions alone. There must also be an appropriate intention, knowledge, recklessness, or criminal negligence at the relevant time (see concurrence). Recklessness may constitute an offense against property or involve significant danger to another person.

The precise definition of recklessness has been contested and has evolved. It generally involves a person pursuing a course of action while consciously disregarding that the action gives rise to a substantial and unjustifiable risk.

Criminal law recognizes recklessness as one of the mens rea elements to establish liability. It shows less culpability than intention, but more culpability than criminal negligence. The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:

The most culpable mens rea elements will have both foresight and desire on a subjective basis. Recklessness usually arises when an accused is actually aware of the potentially adverse consequences to the planned actions, but has gone ahead anyway, exposing a particular individual or unknown victim to the risk of suffering the foreseen harm but not actually desiring that the victim be hurt. The accused is a social danger because they gamble with the safety of others, and the fact they might have acted to try to avoid the injury from occurring is relevant only to mitigate the sentence. Note that gross criminal negligence represents such a serious failure to foresee that in any other person, it would have been recklessness. Hence, the alternative phrase "wilful blindness" acknowledges the link representing either that the accused deliberately engineered a situation in which they were ignorant of material facts, or that the failure to foresee represented such a danger to others that it must be treated as though it was reckless.

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