Objectivization of liability for recklessness in the criminal law of England and Wales (a comparative perspective)

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 2
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 2

Andrzej Lewna – M.A., Nicolaus Copernicus University in Toruń, Faculty of Law and Administration (graduate); University of Manchester (L.L.M. graduate); University of Gdańsk, Department of Criminal Procedure and Criminalistics (Ph.D. candidate); advocate trainee

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recklessness, mens rea, objectivism, subjectivism, subjective elements of a crime, guilt


The aim of this paper is to present a structural analysis of two different legal notions of recklessness, historically developed in the substantive criminal law of England and Wales, and to critically evaluate those notions from a standpoint of individualization principle, taking into account the comparison to the formula currently embodied in Polish Criminal Code of 1997. To this end, the paper opposes two definitions of mens rea in the form of recklessness that evolved within the common law of England and Wales. Interpretative problems resulting from the adoption of the objective formula are transmitted into Polish legal context, in particular with regard to the position of the rules of due care within the current wording of Article 9 § 2 of Polish Criminal Code. It is stated that the emphasis on these rules by the Polish legislator is undesirable, possibly leading to similar excessive objectivization of criminal liability, that historically appeared in the common law of England and Wales.