Culpable and reckless conduct
The offence has no specific definition but deals with acts involving a criminal degree of recklessness which cause injury to other persons or create a risk of such injury. It will often be charged in parallel with other offences such as Wilful fire raising where it is clear that a criminal offence has occurred but the exact offence(s) committed need to be determined by the facts proven in court. The offence carries a maximum punishment of life imprisonment but the circumstances (and thus the eventual sentence applied) of individual cases will often fall short of requiring such a punishment and might not proceed beyond the Sheriff court which has limited sentencing powers.
The offence does not deal with events which involve only civil liability such as injuries caused by negligence which does not amount to a criminal act. It does apply to many events which, had they occurred in England and Wales, would have been the same offence whether they were caused intentionally or recklessly but in Scotland fail to fall within the substantive offence due to a lack of intention. This is demonstrated in many cases where an offender is charged with another offence (e.g. Wilful fire raising) as well as this offence and the eventual offence(s) for which the offender might be committed is determined by the proven intentions.
While there is no statutory definition, a summary of what constitutes the offence can be inferred from a draft Scottish Legal Code which drew upon current law and proposed the following for a statutory offence of Recklessness :-
- For the purposes of criminal liability ⎯
- (a) something is caused recklessly if the person causing the result is, or ought to be, aware of an obvious and serious risk that acting will bring about the result but nonetheless acts where no reasonable person would do so;
- (b) a person is reckless as to a circumstance, or as to a possible result of an act, if the person is, or ought to be, aware of an obvious and serious risk that the circumstance exists, or that the result will follow, but nonetheless acts where no reasonable person would do so;
- (c) a person acts recklessly if the person is, or ought to be, aware of an obvious and serious risk of dangers or of possible harmful results in so acting but nonetheless acts where no reasonable person would do so.
- Reckless endangerment An offence in the United States of America with similar definition.
- A Draft Criminal Code for Scotland with Commentary, pub. Scottish Law Commission 2003