In the case of Bateman it was shown that negligence would then be used in matters of compensation where there was no duty of care and risk of death. Negligence is the failure to do what a reasonable person would do, so although Caldwell does not exist in matters of recklessness, the objectivity it represents is present in statute for cases of negligence. A matter of negligence can involve not foreseeing risk or even foreseeing the risk but not acknowledging the magnitude of it.
In some cases strict liability can be imposed so even if a risk is acknowledged and all means possible are taken to avoid it, if the crime is done the person will be liable. So the element of risk is irrelevant. An example is driving without due care and attention as presented by Section 1 of the Road Traffic Act 1972 (R v Lawrence (Stephen) 16). The problem with allowing subjectivity where there are risks involved is that the courts have to assess the extent to which it may affect the outcome of the crime and they have to believe the word of the defendant, as a claim that a risk was not foreseen cannot necessarily be proved.
Matters such as intent and knowledge can be inferred from actions, but appreciation of risk is purely in the head of the defendant. The defendants appreciation of risk is only truly considered in cases of recklessness and to a limited extent in cases of negligence. This is due to the fact that it is only in recklessness where a subjective approach is taken. Defences such as provocation, diminished responsibility, insanity and duress may be used in some cases to explain the lack of appreciation of the risk, depending on what the charges are.
They are defences that allow defendants to claim that they did not think as the circumstances put them in an impossible situation. In cases where there is foresight of risk but the act is carried out anyways, it is difficult to justify the actions of the defendant. If there is foresight of risk then it seems unreasonable for the defendant not to be held liable but at the same time they could claim that there was duress which caused them to take a risk to avoid harm themselves. Intention and knowledge are closely tied to appreciation of risk.
A defendant may not intend to cause harm but realise there may be a risk of it happening, or even have no intent to cause harm and not realise there is any risk at all. To some extent it is good that the courts can apply subjective reasoning, as it allows for the protection of those who are truly innocent, but it may also allow others who are not to find ways of manipulating the law. The element of risk is hard to define and control, and there are not any particular guidelines telling the courts what to do if the defendant did not think there might be any risk involved.
The courts face many problems when presented with risk takers. They have to consider intent as well as other characteristics of a person. They in some sense have to get into the minds of the defendants to prove what was going on at the time of the crime. If a defendant foresees a risk and takes it he may be guilty. If a defendant does not foresee an obvious risk he may or may not be guilty depending on the circumstances. For example in Woollin the risk should have been foreseen but it wasn’t so the charge was lowered.
In R v G the charge was quashed due to the age of the defendants. And in Adomako the charge was manslaughter even though the risk was not considered at all. This creates a problem for the courts as there are so many cases and they are all determined so differently that there is no clear indication of what precedence should be followed. They have to be able to read minds, interpret unclear statutes and apply inconsistent common law rules.