The Gazette 1990

JULY/AUGUST 1990

GAZETTE

R. -v- Venna had been approved in the House of Lords, by Lord Elwyn-Jones, Lord Chancellor, in DPP -v- Majewski [1977] AC 443 and by Lord Diplock in R. -v- Caldwell [1982] AC 341 as authority for the proposition that recklessness was enough to constitute the necessary mens rea in assault cases. Counsel for the Crown had relied on Seymour [1983] 2 AC 493, where Lord Roskill had said: , " ' Rec k l es s' should today be given the same meaning in relation to all offences which involve 'recklessness' as one of the elements un-less Parliament has otherwise ordained." Their Lordships could not believe that by the use of those words the House of Lords had intended to cast any doubt either upon the decision in R. -v- Cunningham or more importantly the decision in R. -v- Venna .Their Lordships consider- ed themselves bound by the de- cision in R. -v- Venna, and the appe l l an t 's c on v i c t i on was accordingly quashed. Henchy J in The People -v- Murray [1977] IR 360 at 403 cons i de r ed the issue of recklessness in the context of Irish Criminal Law. Henchy J stated that he did not consider it proper to construe either section 38 of the Offences against the Person Act 1861 or section 1 of the Criminal Justice Act, 1964 in such a way as to make those sections hardly ever applicable to assaults on or murder of policemen in plain clothers. In the case of such an assault or murder the required mens rea as to the victim's occupation and activity was a matter of intention or, in the alternative, recklessness. Henchy J stated that just as a person who

tendered was not wrong in law because it fell within the definition of recklessness in R. v- Caldwell [1982] AC 341 which he submitted was applicable to a charge of assault occasioning actual bodily harm. Counsel for the appellant submitted that it had no application to such a charge. "Recklessness" in the Cunningham sense meant that the accused had foreseen that harm might be done and yet had gone oh to take the risk. In R. -v- Venna [1976] QB 421, a case of assault occasioning actual bodily harm, the Crown had sought to distinguish offences which were assaults and offences like unlawful and malicious wounding contrary to section 20 of the 1861 Act whose statutory definition con- tained the word "maliciously", where recklessness sufficed to support the charge. The Court had held, following R. -v- Bradshaw (1878) 14 Cox CC 83, that the element of mens rea in the offence of battery was satisfied by proof that the defendant intentionally or recklessly applied force to the person of another. The Court in R. -v- Venna had said: "We see no reason in logic or in law why a person who reck- lessly applies physical force to the person of another should be outside the criminal law of assault. In many cases the dividing line between intention and recklessness is barely distinguishable". Counsel for the Crown argued in Spratt that that no longer applied to cases under sec t i on 47, although it still applied under sec t i on 20 and sec t i on 23 ( un l awf u l ly and ma l i c i ous ly administering a noxious thing).

does not intend an assault may be held guilty of an assault if he has been reckless as to whether his physical activity would have that effect ( R. -v- Venna [1976] QB421), so a person may be found guilty of the capital murder of a Garda if it is shown (a) that he murdered the Garda and (b) that he was reckless as to whether his victim was a Garda acting in the course of his duty. Henchy J considered the test of recklessness in that context was well stated in the Model Penal Code - s 2.02 (2) (c) - drawn up by the American Law Institute: "A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and un j us t i f i ab le risk t hat the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the ac t o r 's c ondu ct and the circumstances known to him, its disregard involves culpability of high degree." In dealing with whether simple ignorance will displace reckless- ness, Henchy J referred to Professor Glanville Williams (Criminal Law; The General Part; 2nd ed. p. 152) where he had written: " A person who does not know for certain whether or not a fact exists may t h i nk t hat its existence is probable, or only possible; or he may have given no thought to the question of probability or possibility. The last will be particularly likely if he does not know the criminal law and so does not realise the relevance of the f act

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