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Recklessness Without the Risk

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Abstract

Risk is at the core of criminal recklessness, but its exact constitution comes into focus only in unusual cases. In rethinking criminal law, Larry Alexander and Kimberley Kessler Ferzan say that risk in criminal recklessness ought to be constituted by the subjective belief of the person whose action is being evaluated: the gravity of the harm risked and its probability of resulting is what the person believed it to be, not what it actually was. This means that recklessness can be found in the absence of any “real” risk. This article critiques the authors’ argument for subjective risk in recklessness. They exaggerate the arbitrariness in identifying risk non-subjectively and do not sufficiently acknowledge risk as an inter-subjectively constituted practical concept. Fixing risk subjectively, as advocated by the authors, nonetheless may appear useful for inchoate criminal liability. The article considers and rejects this idea of occasionally subjectivising risk in recklessness.

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Notes

  1. Clifford v DPP [2013] IESC 43.

  2. Criminal Justice (Public Order) Act 1994, Sect. 6 (Ireland). A “breach of the peace” in this context means unlawful violence in a public place: DPP v Thorpe [2007] 1 IR 502.

  3. Jeremy Horder, “Crimes of Ulterior Intent,” in A.P. Simester and A.T.H. Smith (eds.), Harm and Culpability (Oxford: Oxford University Press, 1996), pp. 153–168.

  4. Clifford v DPP [2013] IESC 43, para. 5.19, emphasis added.

  5. Larry Alexander and Kimberly Kessler Ferzan with Stephen Morse, Crime and Culpability: A Theory of Criminal Law (Cambridge: Cambridge University Press, 2009).

  6. People (DPP) v Murray [1977] IR 360, People (DPP) v Cagney and McGrath [2008] 2 IR 111.

  7. R v G [2004] 1 AC 1034.

  8. Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (Oxford: Oxford University Press, 7th Ed., 2013), p. 176; Liz Campbell, Shane Kilcommins, and Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Dublin: Clarus Press, 2010), p. 146; Conor Hanly, An Introduction to Irish Criminal Law (Dublin: Gill & Macmillan, 3rd Ed., 2015), pp. 93–94.

  9. Alexander and Ferzan, Crime and Culpability, pp. 27–28.

  10. Paul H. Robinson, “Prohibited Risk Creation and Culpable Disregard or Inattentiveness: Challenge and Confusion in the Formulation of Risk-Creation Offenses,” Theoretical Inquiries in Law 4(1) (2003): pp. 367–396.

  11. [1957] 2 QB 396.

  12. The charge in Cunningham, in addition to theft, was that the defendant “unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger her life.”

  13. [1957] 2 QB 396, 401.

  14. A.P. Simester, J.R. Spencer, Findlay Stark, G.R. Sullivan, G.J. Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (Oxford and Portland: Hart Publishing, 6th Ed, 2016), p. 148; Ashworth and Horder, Principles of Criminal Law, p. 177.

  15. Ashworth and Horder, Principles of Criminal Law, p. 176.

  16. Section 2.02(2)(c) of the MPC defines “recklessly”: “A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that 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 actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”

  17. Findlay Stark, Culpable Carelessness: Recklessness and Negligence in the Criminal Law (Cambridge: Cambridge University Press, 2016), p. 90, in describing the standard approach: “Reckless defendants are aware of the risks attendant upon their behaviour, risks that, in the circumstances, it is not justifiable to take.”

  18. Findlay Stark, Culpable Carelessness, p. 10, citing R.A. Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Oxford: Blackwell, 1990), p. 43.

  19. R v G [2004] 1 AC 1034, 1057. This is from the formulation of recklessness, endorsed by Lord Bingham in R v G, in clause 18(c) of the Criminal Code Bill annexed by the Law Commission to its Report “A Criminal Code for England and Wales Volume 1: Report and Draft Criminal Code Bill” (Law Com No 177, April 1989).

  20. The defendant must avert to the kind of risk that is unjustified in the circumstances but need not appreciate its precise shape or magnitude, hence only a rough matching across Limbs 1 and 2 is required: Constable of Avon v Shimmen [1986] Crim LR 800.

  21. Alexander and Ferzan advocate a downgrade of “substantiality” from a separate description of the risk alongside “unjustified” to being merely a factor that goes to whether the risk is “unjustified.” This matches the textbook description of practice in England and Wales where the substantiality of the risk is a sub-element of its unreasonableness. See Simester, et al., Simester and Sullivan’s Criminal Law, p. 149; Ashworth and Horder, Principles of Criminal Law, p. 177.

  22. I note the tradition critiquing the criminal law’s assumption of an independent controlling site of cognition in the mind. See Duff, Intention, Agency and Criminal Liability.

  23. Ashworth, Principles of Criminal Law, p. 177; Campbell, et al., Criminal Law in Ireland, p. 133.

  24. Alexander Sarch, “Review of Findlay Stark, Culpable Carelessness,” Criminal Law and Philosophy 12(4) (2018): pp. 725–730.

  25. Law Commission for England Wales’ working paper No 31 (General Principles: The Mental Element in Crime) (on page 48), quoted in R v G [2004] 1 AC 1034, 1047. Emphasis added.

  26. Alexander and Ferzan, Crime and Culpability, pp. 27–28, Peter Westen, “The Ontological Problem of ‘Risk’ and ‘Endangerment’ in Criminal Law,” in R.A. Duff and Stuart Green (eds.), Philosophical Foundations of Criminal Law (Oxford: Oxford University Press, 2010), p. 309, 311; Robinson, “Prohibited Risk Creation and Culpable Disregard or Inattentiveness: Challenge and Confusion in the Formulation of Risk-Creation Offenses.”

  27. Alexander and Ferzan, Crime and Culpability, pp. 27–31.

  28. Alexander and Ferzan, Crime and Culpability, p. 27, citing to the original appearance of the example in Larry Alexander, “Insufficient Concern: A Unified Conception of Criminal Culpability,” Cal L Rev 88(3) (2000): pp. 931–954.

  29. Alexander and Ferzan, Crime and Culpability, p. 28.

  30. See Alexander and Ferzan, Crime and Culpability p. 153, on legal and moral ignorance. See also Larry Alexander and Kimberley Kessler Ferzan, Reflections on Crime and Culpability: Problems and Puzzles (Cambridge: Cambridge University Press, 2018), Chapters 3 and 6, for the authors’ revisiting of the ignorance question. See elsewhere for Alexander’s strong statement against moral mistake having exculpatory effect: Larry Alexander, “Recipe for a Theory of Self-Defense: The Ingredients, and Some Cooking Suggestions,” in C. Loons and M. Weber (eds.), The Ethics of Self-Defense (New York: Oxford University Press, 2016), pp. 20–50, 22.

  31. Alexander and Ferzan, Crime and Culpability, pp. 29–31.

  32. Alexander and Ferzan, Crime and Culpability, p. 28.

  33. Alexander and Ferzan, Crime and Culpability, p. 30, fn. 11.

  34. Alexander and Ferzan, Crime and Culpability, p. 29.

  35. Eric Johnson, “Is the Ideal of Objective Probability Incoherent?,” Law and Philosophy 29(4) (2010): pp. 419–432; Westen, “The Ontological Problem of ‘Risk’ and ‘Endangerment’ in Criminal Law,” p. 309.

  36. Johnson, “Is the Ideal of Objective Probability Incoherent?”; Westen, “The Ontological Problem of ‘Risk’ and ‘Endangerment’ in Criminal Law.”

  37. Alexander and Ferzan, Crime and Culpability, pp. 81–85.

  38. Westen, “The Ontological Problem of ‘Risk’ and ‘Endangerment’ in Criminal Law,” p. 321.

  39. Larry Alexander and Emily Sherwin, The Rule of Rules: Rule and the Dilemmas of Law (Duke University Press, 2001); Larry Alexander, “What Are Constitutions, and What Should (and Can) They Do?,” Social Philosophy and Policy 28(1) (2010): pp. 1–24.

  40. Maris Köpcke Tinturé, “Law Does Things Differently,” American Journal of Jurisprudence 55(1) (2010): pp. 201–224; John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 2nd Ed, 2011), p. 286.

  41. I note Alexander and Ferzan, Crime and Culpability’s favouring of standards over rules, pp. 295–306; but standards, like rules, are in the business of selecting binding legal obligations from manifold moral possibilities, they just don’t go as far as rules in the specification of obligations.

  42. Sven Ove Hansson, “Risk,” The Stanford Encyclopedia of Philosophy (Fall 2018 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2018/entries/risk/>.

  43. As does Lord Diplock in Caldwell [1982] 1 AC 341, p. 351: “… it would have been apparent to him that there was a real risk of its having the relevant harmful consequences …”

  44. “… regardless of the actual risk he is imposing …” Alexander and Ferzan, Crime and Culpability, p. 28.

  45. Westen, “The Ontological Problem of ‘Risk’ and ‘Endangerment’ in Criminal Law,” p. 321.

  46. David M. Treiman, “Recklessness and the Model Penal Code,” American Journal of Criminal Law 9(3) (November 1981): pp. 281–386, p. 318.

  47. On the moral-prudential notions of refraining from action because of the limitations of one’s epistemic situation, see Alexander A. Guerrero, “Don’t Know, Don’t Kill: Moral Ignorance, Culpability, and Caution,” Philos Stud 136(1) (2007): pp. 59–97.

  48. Alexander and Ferzan, Crime and Culpability, p. 70.

  49. Larry Alexander and Kimberley Ferzan, “Confused Culpability, Contrived Causation, and the Collapse of Tort Theory,” in John Oberdiek (ed.), Philosophical Foundations of the Law of Torts (Oxford: Oxford University Press, 2014), pp. 406–425.

  50. Alexander and Ferzan, Crime and Culpability, Chapters 5 and 8.

  51. Alexander and Ferzan, Crime and Culpability, pp. 263, 327; Alexander and Ferzan, Reflections on Crime and Culpability, pp. 7–8.

  52. Joel Feinberg, “Equal Punishment for Failed Attempts: Some Bad but Instructive Arguments Against It,” Ariz. L. Rev. 37(1) (1995): pp. 117–134, 119.

  53. Florida Statute Sect. 316.192.

  54. Arkansas Code, Title 27 (Transportation), Subtitle 4 (Motor Vehicular Traffic), Chapter 50 (Penalties and Enforcement), Sub-chapter 3 (Offenses and Penalties Generally). Several state codes employ similar terminology to Arkansas and Florida. In contrast, Arizona uses “reckless” in its definition and Alaska follows the MPC definition of recklessness closely for reckless driving.

  55. Road Traffic Act 1988, Sect. 2A (England, Wales and Scotland).

  56. People (DPP) v Cagney [2008] 2 IR 111.

  57. Baruch Fischoff, “Hindsight Does Not Equal Foresight Knowledge: The Effect of Outcome on Judgment Under Uncertainty,” J. Experimental Psychol. 1(3) (1975): pp. 288–299, cited in Robinson, “Prohibited Risk Creation and Culpable Disregard or Inattentiveness.”

  58. Non-Fatal Offences Against the Person Act 1997, Sect. 13 (Ireland).

  59. Scottish Law Commission, A Draft Criminal Code For Scotland With Commentary (The Stationery Office 2003) Section 43. Note also Sect. 43(2): “It is not necessary for the purposes of this section that another person should be within the area of risk provided that there is a risk of such a person being within that area.” This is proposed law, not existing law.

  60. MPC, Sect. 211.2.

  61. [1982] 1 AC 341.

  62. Robinson, “Prohibited Risk Creation and Culpable Disregard or Inattentiveness.”

  63. Westen, “The Ontological Problem of ‘Risk’ and ‘Endangerment’ in Criminal Law.”

  64. Findlay Stark, “The Reasonableness in Recklessness,” Criminal Law and Philosophy (2019) Online First https://doi.org/10.1007/s11572-019-09501-z, drawing on John Oberdiek, Imposing Risk: A Philosophical Analysis (Oxford: Oxford University Press, 2017). See also, as analysed by Stark, Eric Johnson, “Is the Idea of Objective Probability Incoherent?,” Law and Philosophy 29(4) (2010): pp. 419–432; Westen, “The Ontological Problem of ‘Risk’ and ‘Endangerment’ in Criminal Law.”

  65. Alexander, “Insufficient Concern,” p. 963; Alexander and Ferzan, Crime and Culpability, p. 289.

  66. Holly Lawford-Smith, “Book Review: Crime and Culpability: A Theory of Criminal Law,” Austl. J. Leg. Phil. 35 (2010): pp. 152–158.

  67. DPP v Morgan [1976] AC 182.

  68. Celia Wells, “Swatting the Subjectivist Bug,” Criminal Law Review 20 (1982): pp. 209–220.

  69. The repealed Sexual Offences (Amendment) Act 1976, Sect. 1(2) (England and Wales).

  70. Stark, “The Reasonableness in Recklessness,” citing Alec Walen, “Crime, Culpability and Moral Luck,” Law and Philosophy 29(4) (2010): pp. 373–384, 381. See Alexander and Ferzan, Reflections on Crime and Culpability, p. 2 for the authors’ clarifications about motivating reasons and an act’s culpability.

  71. Stark, “The Reasonableness in Recklessness.”

  72. Stark, “The Reasonableness in Recklessness.”

  73. R v Whybrow [1951] 35 Cr App R 141; R v Mohan [1976] QB 1.

  74. Bebhinn Donnelly-Lazarov, A Philosophy of Criminal Attempts: The Subjective Approach (Cambridge: Cambridge University Press, 2015), Chapter 8; Paul H. Robinson, Structure and Function in Criminal Law (Oxford: Clarendon Press, 1997), pp. 157–164.

  75. [1975] AC 476, [1973] UKHL 4.

  76. R v Shivpuri [1987] AC 1, [1986] UKHL 2.

  77. Think of Anderton v Ryan [1985] AC 560 but with the VCR purchased straightforwardly in a shop, with a receipt, and so on.

  78. Stark, “The Reasonableness in Recklessness.”

  79. This partially endorses the critique of varying meaning of mens rea terms in Findlay Stark, “It’s Only Words: On Meaning and Mens Rea,” Cambridge Law Journal 72(1) (2013): pp. 155–177, updated and adapted as Chapter 3 of his book, Culpable Carelessness, to which I’ll refer. Stark says that Caldwell—which in effect set up different forms of recklessness for different offences—left recklessness uncertain “both for courts applying the law ex post and from the ex ante perspectives of citizens hoping to avoid criminal liability” (p. 74). While uncertainty in court about recklessness clearly raises a fair adjudication legality concern about equal and predictable treatment of defendants, I don’t see an equivalent ex ante fair notice concern for citizens because the defendant in Caldwell, for instance, is not entitled to certainty about whether advertence is required for the amplified criminal damage liability his arson attracted.

  80. Donnelly-Lazarov, A Philosophy of Criminal Attempts, Chapter 6.

  81. Stark, “The Reasonableness in Recklessness,” citing Walen, “Crime, Culpability and Moral Luck.”

Acknowledgements

My thanks to Beatrice Krebs and Christopher Cowley for the invitation to join the collection arising from the Recklessness and Negligence Workshop at the University of Reading in 2018. Many thanks are due to Christopher Cowley and two anonymous reviewers for hugely helpful comments. An earlier version of the article was presented to the Irish Jurisprudence Society on 28 February 2019. I thank participants at that workshop, in particular, Oran Doyle, Adina Preda, and Suryapratim Roy, for rich discussion and feedback.

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    David Prendergast

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Prendergast, D. Recklessness Without the Risk. Criminal Law, Philosophy 14, 31–50 (2020). https://doi.org/10.1007/s11572-019-09510-y

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