What a good question!
If I remember correctly to prove recklessness you need to prove 3 things:
- There is an objective test where a reasonable person test is applied, I would suggest that in this case, “the reasonable Pilot” and would the outcome/consequences have been reasonably foreseeable by the reasonable Pilot… I haven’t done one of these for Pilots but in similar professional situations it often comes down to a bun fight with either side producing expert reasonable pilots who are there to respectively shoot you down or support your position. I would suggest that if “something” were to happen you might find it difficult to find a reasonable Pilot to support you.
- There is also a subjective test where the court itself would try to establish your state of mind at the time of the “occurrence”. I.e. what you were thinking; if they came to the conclusion that you were aware of any risks it may not be beneficial to your case, and if there was an occurrence when you have done something “odd” to an aircraft it may be very difficult to convince the court that you thought everything was “safe”.
- I think the final test is the first two weighed up together.
To summarise, and again if I remember correctly if you are aware that a harm may occur as a result of your actions and you ignore it and do it anyway, I think the phrase wilful blindness applies here, you could be in for a hard time.
Trying to convince a jury and or a Judge that you did something and you hadn’t realised it would cause harm could be really tricky, I would suggest that civilians would always side with the voice that is on the righteous side of safety.
Rule of thumb, if your intent on doing this, do a risk assessment, detail what your going to do, reduce the risks as far as possible, if your still intent and cannot reduce the risk any further then all your left with is the known risk which can be foreseen, can you justify it? & latent error which cannot be reasonably foreseen.