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Essay Gross Negligence and Recklessness

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Gross Negligence and Recklessness

In imposing criminal liability for a failure to recognise the risks, obvious to a reasonable person, there are at least two factors:

the level of risk involved

The seriousness of the potential harm

Only where the possible harm is more serious and the risk is more obvious, do we distinguish recklessness from carelessness and impose liability. In assessing this, other issues may come in:

The social utility of the action

Thus, the surgeon who performs a necessary but dangerous operation may realise that there is a high probability of serious harm or even death but we do not blame him or her if the operation fails - we balance the risks that are …show more content…

The defendant was charged under s.23 Offences Against the Person Act 1861, which involves maliciously administering a noxious thing so as to endanger life. The trial judge directed the jury that malice was the equivalent to wicked and the Court of Appeal quashed the conviction - maliciously means intentionally or recklessly and the latter word required proof that the defendant had had some foresight of the risk and yet had still deliberately gone ahead.

This was supported in Stephenson (1979) where the accused, a tramp, went to sleep in a haystack. Being somewhat cold, he decided to light a fire and caused some 3500 of damage. There was medical evidence that the defendant was schizophrenic and that this involved a reduced ability to appreciate or foresee risks to that possessed by a normal person. The trial judge directed the jury that the defendant was reckless if he 'closed his mind to an obvious risk' but the Court of Appeal quashed the conviction with Lord Lane firstly looking at the recommendations of the Law Commission:

...A person is reckless if, a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and b) it is unreasonable for him to take it having regard to the degree and nature of the

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