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Recklessness in criminal cases

Produced in partnership with Christopher Sykes of 33 Chancery Lane

Practice notes

Recklessness in criminal cases

Produced in partnership with Christopher Sykes of 33 Chancery Lane

Practice notes

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The subjective test for recklessness

Certain statutory and common law offences allow the prosecution to prove the mens rea on the basis of ‘recklessness’. In essence, recklessness means the taking of an unjustified risk by the accused that leads to unlawful harm or damage.

The subjective test for recklessness was reaffirmed by the House of Lords in R v G. Before R v G, there were two tests for recklessness, with the applicable test depending on the substantive offence charged. The two tests were for:

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subjective recklessness as established by R v Cunningham. This test required the prosecution to prove that the accused had foreseen the risk themselves
•
objective recklessness as established by R v Caldwell. This test required the prosecution to prove that the risk would have been obvious to a reasonable person. The prosecution were not required to prove that the accused themselves foresaw the risk

The House of Lords in R v G held that the objective test could cause unfairness in circumstances where a

Christopher Sykes

Barrister, 33 Chancery Lane

Christopher acts for the prosecution and defence in cases of business crime and investigations. He has been instructed by the FCA as junior and disclosure counsel in complex prosecutions. He has gained experience of investigations through his work with the Enforcement Decision Making Committee of the Bank of England and the Fraud Investigation Service of HMRC. He has been led by senior members of Chambers in defending private prosecutions for fraud and in confiscation proceedings. He has defended individuals facing allegations of civil contempt in the High Court for breach of freezing injunctions. He is panel counsel for the SFO.

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Alongside his business crime practice, Christopher offers extensive experience and expertise in the practice area of professional discipline and regulation. He is frequently instructed by the GDC to present the case in substantive, interim, and High Court matters. He is regularly instructed to act for the defence by the CSP. Christopher gained in-house experience of regulatory enforcement through his secondment as a case presenter for the GOC.

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Christopher brings to these roles the experience gained as a criminal advocate appearing in the magistrates’ courts, Crown Courts, and Court of Appeal. He has secured successful outcomes for clients facing the most serious criminal allegations, including kidnap and terrorism.

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Christopher contributed to the drafting of “The UK Anti-Bribery Handbook” (Bloomsbury, 2022) and Blackstone’s Criminal Practice 2020.

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Jurisdiction(s):

United Kingdom

Key definition:

Recklessness definition

What does Recklessness mean?

Recklessness is unjustified risk taking.

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