Recklessness in Scots Criminal Law: Subjective or Objective?

Abstract

The mens rea of recklessness is generally defined either subjectively or objectively. A subjective approach says a person is reckless where he takes an unjustified risk of which he was actually aware. An objective approach says a person is reckless where he takes an unjustified risk of which he either was aware or ought to have been aware. He “ought” to have been aware of the risk where the reasonable person would have been aware of it.

This article offers an analysis of the relevant authorities with a view to ascertaining which of the above approaches currently represents the position in Scotland. Part B argues that Scots law has traditionally adopted an objective approach to recklessness. Part C then analyses various cases that are sometimes used as authority for the proposition that recklessness in Scots law is not entirely objective.

In the end, it is concluded that, while Scotland has historically taken an objective approach, the current position is in fact unclear. It is suggested that this uncertainty is largely attributable to the decision in Transco v HM Advocate, which, contrary to the weight of earlier authority, and without offering any adequate justification for departing from that authority, elected to adopt a subjective model of recklessness.

Given the uncertainty of the present position, and the key role played by recklessness in Scots criminal law, there is a significant need for clarification.

Keywords: Mens rea, culpability, blameworthiness, criminal law, recklessness, criminal intent, criminal mind, objectivism, subjectivism, scots law