The Cunningham recklessness test is now the accepted test for recklessness. The case of Elliot was a very convincing argument for the Cunningham recklessness. However, is this subjective test too easy on defendants? Surely it is easy to get convictions under the objective Caldwell test?Wednesday, 8 July 2009
Is the subjective 'Cunningham test' too easy on offenders?
The Cunningham recklessness test is now the accepted test for recklessness. The case of Elliot was a very convincing argument for the Cunningham recklessness. However, is this subjective test too easy on defendants? Surely it is easy to get convictions under the objective Caldwell test?
Subscribe to:
Post Comments (Atom)
both the caldwell and cunningham tests have pros and cons. The cladwell objective test could be seen to be unfair because it is hard to judge everyone by the standards of a 'reasonable man.' Seen in the case of Elliot v C 1983. Furthermore, what is a reasonable man and what range of responses would a reasonable man foresee. However, the cunningham subjective test could be seen to be too easy on offenders, convicting them of recklessness only if they failed to forsee the prohibited consequences. Is it fair that a person would be convicted if they were more perceptive and aware than another. This creates uncertainty in the law. The cunningham subjective test, is surely objective anyway due to the nature of the English legal system. The court uses a jury to decide facts and guilt and no matter how much direction is given to them by the judge, they will decide the case on what they believe to be 'forseeable consequences.' if they are 'reasonable men' then the two tests are surely the same thing?!
ReplyDeleteJack
Nakita
Kayleigh
Ian and sam think that the subjective Cunnigham test should be accepted for all cases as relates directly t ointerntion and how you can not be conviced if you dont forsee the consequence. Also , as expressed in elliot 1983, if the caldwell test was not overulled then this would have been an unfair conviction as she was only of fourteen years old with learning difficulties. Therefore it would be unjust to compare her to a reasonable adult.
ReplyDeleteHowever, after much discussion and blood, sweat, and tears we eventually came to a reasonable agreement that the Caldwell test shoud also be taken into consideration, along side the Cunningham test, for any person over the age of 18 and who doesnt suffer from any learning difficulties or disabilities.
Thankyou, discussion done! Over and out ;)
Ian and Sam :D