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Recklessness today The test for the mens rea of recklessness is a subjective one. However, whether or not it is reasonable for the defendant to take the risk which he is aware of is a question for the jury to decide. NEGLIGENCE Negligence is conduct or behaviour that falls below the standard to be expected of the reasonable man, thus it is objectively tested. One usually encounters negligence in the civil law and there is justifiably a question as to whether negligence can correctly be used to describe a form of mens rea in order to incur criminal liability.