Recklessness

"An historic victory for common sense."

This is how the House of Lords judgement in the case of R v G and another (2003) has been described. It is not an overstatement to say that this case has revolutionised the area of recklessness and set important precedent for the future. In order to gage the impact that R v G and another (2003) has had, I shall give an historical overview of the law associated with recklessness leading to the case. I shall then endeavour to explain the impact of the judgement in R v G and why the House of Lords came to this decision.

The term Œreckless' was first created to deal with the (now rather archaic) term Œmalicious', that used to be prevalent in many statutes in the 19 th century (for example the Malicious Damage Act (1861) ). One of the first cases to use the term Œreckless', was that of R v Pembliton (1874) , in which the defendant was charged with ³unlawfully and maliciously committing any damage, injury, or spoil to or upon any real or personal property whatsoever², contrary to the Malicious Damage Act (1861) . The jury convicted the defendant, despite finding that he had not intended to break the window in question. On appeal to the Court of Crown Cases Reserve, the defendant's conviction was quashed, with Lord Coleridge CJ finding that ³Šif the jury had come to a conclusion that the prisoner was reckless of the consequences of his actŠ², then they could have found the defendant guilty. Thus the court in Pembliton interpreted Œmaliciously' as requiring proof of intention, but was inclined to accept that intention could be shown by proof of reckless disregard of a perceived risk. This decision was followed in the case of R v Welch (1875) . The development of the law of recklessness with regards to the interpretation of Œmaliciously' continued with the case of R v Harris (1882) in which (with facts quite similar to that of R v G) the defendant set fire to a house, contrary to the Malicious Damage Act (1861) . In the case, the judge directed the jury that:

³If you think that the prisoner set fire to the frame of the picture with a knowledge that in all probability the house itself would thereby be set on fire, and that he was reckless and utterly indifferent whether the house caught fire or not, that is abundant evidence from which you may draw the inference that he intended the probable consequences of his act.²

As in the previous cases, the ratio in R v Harris states that the term Œmalicious' can be interpreted as allowing a conviction if the defendant was subjectively (which can be gleaned from the phrase "the prisonerŠ with a knowledge Š") reckless in whether an act was committed or not. One of the most important sources in the early development of the law on recklessness was not, in fact, a case, but an academic work. In his book ŒOutlines of Criminal Law' (published in 1902), Professor Kenny addressed the meaning of "maliciously", with particular reference to arson. As much of the information in the book was based on the judgement in the case of R v Harris and because a particular passage in the book was quoted, and used, substantially in very important cases in the area of recklessness, I feel it is worth quoting:

³It is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so.²

Thus, the state of the law in the area of recklessness at the turn of the century was that it was a subjective test that helped to establish mens rea in crimes where the required mens rea was for the defendant to do an act Œmaliciously'.

         The next case that I wish to mention is one of the most important cases in the history of recklessness. It is also just as important in defining recklessness as it stands today, as the rational from the case is still binding. In the case of R v Cunningham (1957) , the defendant stole money from a gas meter and in doing so, he tore the meter from the wall and left the gas pipes exposed. Coal gas then seeped into the basement of the house next door and affected a woman living there. The defendant was charged and convicted of "unlawfully and maliciously administering a noxious thing so as to endanger life" country to s23 Offences Against the Person Act (1861) . However, his conviction on appeal was quashed, as the judge had misdirected the jury by telling them that the word Œmalicious' simply meant Œwicked', instead of giving it its more precise legal meaning. The court of appeal decided that:

³In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).²

This thus means, that the courts decided that when the word Œmaliciously' is used in a statute, it was necessary to establish that the defendant either intended to do the harm in question or he had been reckless as to whether this harm would occur. Crucially, in Cunningham, the court laid down a subjective test to decide whether the defendant had been reckless or not. Thus on this test, Cunningham could only be convicted if he knew of the risk from the gas but, nevertheless, went on to take it. It was not enough to prove that he ought to have foreseen such a risk, as the test is subjective. Thus, it can be seen that R v Cunningham was one of the most important cases in establishing recklessness as an area of law.

Following on from Cunningham, the subjective test was used in many cases. The rules laid down in Cunningham were also considered by the Law Commission, who approved the above passage in Cunningham, with regards to the test required for recklessness. They also recommended that the word Œmaliciously' should be avoided and that the word Œrecklessly' should instead be used. Although this change may seem minor, it was actually a major change for the area of recklessness. This is because, whereas the term Œrecklessly' had always previously been used as an aid to the interpretation of the word Œmaliciously', the Law Commission were recommending that recklessness become an area of mens rea in its own right. Crucially, with regards to the later decision in MPC v Caldwell (1982) , the Law Commission did not believe that the subjective recklessness test was leading to unjustified acquittals. The Law Commissions proposals were largely accepted, with the Malicious Damage Act (1861) becoming the Criminal Damage Act (1971) , in which the words Œintentionally' and Œrecklessly' replaced the word Œmaliciously'. However, as there was no definition of recklessness provided in the act, it was presumed that the law (despite the change in wording) remained the same and therefore that the Cunningham recklessness test still applied.

This is the view that was taken in the case of R v Stephenson (1979) , in which the defendant, a schizophrenic, had tried to go to sleep in a hollow he had made in the side of a haystack. Feeling cold, he lit a fire, which set fire to the stack and caused £3,500 worth of damage. The defendant was charged and convicted under s1&3 Criminal Damage Act (1971) , but his conviction was quashed on appeal. This was because the trial judge had stated that the defendant could be found guilty if he ³closed his mind to the obvious fact of risk from his act², a test which the court felt was more objective (i.e. through the eyes of a reasonable man) rather than subjective in approach. It is quite interesting to note the judgement of Lord Lane in this case; who was emphatic that the test was subjective, as can be seen in the following quote:

³We wish to make it clear that the test remains subjective, that the knowledge or appreciation of risk of some damage must have entered the defendant's mind even though he may have suppressed it.²

Given the forcefulness of this statement, the decision in one of the most important recklessness cases after Cunningham, which occurred only three years later seems rather perplexing. In the case of MPC v Caldwell (1982 ) , the defendant had been employed by a hotel, but was subsequently dismissed by the owner and as a consequence of this, the defendant had a grievance against him. One night, Caldwell got very drunk and set fire to the hotel, where guests were living at the time, but luckily the fire was discovered in time and so no serious harm was done to any people, or to the hotel. Caldwell was prepared to admit to the lesser charge of criminal damage (under s1(1) Criminal Damage Act (1971) ), but denied the charge of causing criminal damage with intent to endanger life or being reckless as to whether life would be endangered (under s1(2) Criminal Damage Act (1971) ) on account of the fact that he was so drunk at the time, that the thought there might be people in the hotel had never crossed his mind. Despite this, the jury found him guilty and he was sentenced to three years imprisonment. The case eventually reached the House of Lords, where Lord Diplock was to completely change the law on recklessness. He did this by stating that the form of recklessness used in the case of R v Cunningham was only intended to help interpret the meaning of the word Œmaliciously' which was used in the old statutes. Thus, Lord Diplock argued that as such the old meaning (as per Cunningham) was not applicable to the 1971 act, even though it had been used in many cases (e.g. Stephenson (1979) ) since then. Lord Diplock argued that:

³the only person who knows what the accused's mental processes were at the time of committing the crime is the accused himself and probably not even he can recall them accurately when the rage or excitement under which he acted has passed.²

As such, Lord Diplock believed that there should be a wider test for recklessness and he decided that a person would be reckless under the Criminal Damage Act (1971), if:

³(1) He does an act which in fact creates an obvious risk that property will be destroyed or damaged, and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and he nonetheless gone on to take it.²

This new test that was proposed by Lord Diplock therefore established a new type of recklessness which is called objective recklessness. Under objective recklessness, the risk of the defendant's actions are seen through the eyes of a Œreasonable man', rather than through the eyes of the defendant, as is the case with subjective recklessness.

         Although Caldwell only established an objective test for recklessness for criminal damage cases, it was Lord Diplock's intention to judge all recklessness according to this test. He argued that subjective recklessness had served the purpose for which it was intended (i.e. to help interpret the term Œmaliciously') and that as it was ³not helpful² to classify recklessness into subjective and objective, it should be completely replaced with objective recklessness. However, Lord Diplock's attempts to clarify the law on recklessness and make his objective test the one to be used for all types of recklessness attracted a lot of criticism from both judges and academics. Professor Glanville Williams called the change in the law ³regrettable², Lord Browne-Wilkinson said that the test was ³not very helpful² and Professor Smith commented that the test made the eyes of the jury ³glaze over² when it was put to them.

         However, it seems as though the detractors of the objective test did not have too much to worry about, as although the objective test was used in many areas of law, these gradually diminished. For example, in R v Lawrence (1982) , which was decided on the same day as Caldwell, it was decided that the objective test was the one to be used for the charge of reckless driving contrary to s1 Road Traffic Act 1972 . However, this was made obsolete when the offence was reclassified as dangerous driving as a result of the Road Traffic Act 1988 . Similarly, the objective test was designated as the one to use in attempted rape cases, as a result of the decision in R v Pigg (1982) . However, this was abandoned in later cases, where it was decided that the decision in DPP v Morgan (1976) and the provisions in the Sexual Offences (Amendment) Act (1976) , had made it clear that a more subjective approach had to be taken in such cases. This was confirmed in the later case of R v Satnam (1983) .

One by one the offences for which the objective, Caldwell, test were to be used diminished as fast as they had arisen and eventually the only offence for which an objective test for recklessness was still in use was that of criminal damage. The continued use of this in only this area of law came in for much criticism. This is because, as the objective test had not (as Lord Diplock hoped) been adopted for other areas of recklessness, its continued use in the area of criminal damage began to look more and more like an anomaly. In addition, the use of the objective test was causing a lot of injustice, an example being in the case of Elliott v C (a minor) (1983) . In this case, the defendant, a 14-year-old girl of low intelligence had run away from home and was staying in a shed. Feeling cold, she poured some white spirit on the floor and set light to it to make a fire, with the result being that the shed was destroyed. As it was an offence of criminal damage, the recklessness test was objective and through the eyes of a Œreasonable man', despite the fact that her immaturity and low intelligence meant she did not have anything like the characteristics of a Œreasonable man'. The Divisional Court reluctantly upheld the defendant's conviction for aggravated criminal damage, because the court was bound by the precedent, regarding the objective test, set in Caldwell. However, Goff LJ stated that:

³I would be lacking in candour if I were to conceal my unhappiness about the conclusion which I feel compelled to reach.²

This then was the position of the law regarding recklessness, before the groundbreaking case of R v G and another (2003) was decided.

         As the case is of such importance, I believe it is necessary to quote the facts of the case in full, in order to gain a full understanding of the events that led to this significant change in the law. Thus, the facts of R v G and another (2003) , as stated in the judgement, are as follows:

³On the night of the 21-22 August 2000 the appellants, then aged 11 and 12 respectively, went camping without their parent's permission. In the early hours of 22 August they entered the back yard of the Co-op shop in Newport Pagnell. They found bundles of newspapers, which they opened up to read. The boys then lit some of the newspapers with a lighter they had with them. Each of them threw some lit newspaper under a large plastic wheelie-bin. The boys left the yard without putting out the burning papers. The newspapers set fire to the first wheelie-bin and the fire spread from it to the wheelie-bin next to the shop wall. From the second bin the fire spread up under the overhanging eave, to the guttering and the fascia and then up into the roof space of the shop until eventually the roof of the shop and the adjoining buildings caught fire. The roof collapsed. Approximately £1m worth of damage was caused. The appellants' case at trial was that they expected the newspaper fires to extinguish themselves on the concrete floor of the yard. It is accepted that neither of them appreciated that there was any risk whatsoever of the fire spreading in the way it eventually did.²

The majority of the rational of the House of Lords decision was delivered by Lord Bingham of Cornhill and so it is from his judgement that I will largely be quoting. Lord Bingham decided that the main task confronting the House of Lords in the appeal, was to decide:

³What did parliament mean when it used the word Œreckless' in s1(1) & (2) Criminal Damage Act (1971) ?²

In order to deduce this, Lord Bingham decided to refer to the Law Commission's report which led to the passing of the 1971 Act. As a result of this he decided that the Law Commission's report:

³Šreveal a very plain intention to replace the old-fashioned and misleading expression Œmaliciously' by the more familiar expression Œreckless' but to give the latter expression the meaning which R v Cunningham (1957) 2 QB 396 and Professor Kenny had given to the former.²

Thus, Lord Bingham decided that the parliament's intention (as deduced through the Law Commission's report) was that the term Œreckless' should be given a subjective test as per Cunningham. As such, he felt that the House of Lords had fallen into an ³understandable but clearly demonstrable error.² Despite Lord Bingham's identification of the decision in Caldwell as erroneous, he then goes onto explain that this did not necessarily determine the appeal in R v G. This is because the reasoning in the case had been approved on many occasions since by the House of Lords (e.g. in R v Lawrence ) and invitations to reconsider the reasoning had been rejected. However, Lord Bingham felt that on this occasion it would be right to overrule the past precedent and find in favour of the defendants and he gave four reasons for this. Firstly, Lord Bingham stated that it is a ³salutary principle² of the law that it had to be proven, especially in cases of serious crime, that the defendant had the necessary mens rea to commit the crime. Lord Bingham went on to say:

³It is clearly blameworthy to do something involving a risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another ifŠ one genuinely does not perceive the risk.²

This was a very clear attack on the principles of an objective test for recklessness. The second argument used by Lord Bingham was that the objective test laid down by Caldwell was capable of leading to unfairness and he added that R v G was an obvious example of this. In order to support this, Lord Bingham cited the attitude of both the judge and the jury, who both felt uneasy about convincing the boys, but nevertheless felt compelled to under the law as it stood then. Lord Bingham added:

³It is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension.²

The third argument used by Lord Bingham was that he did not feel he could ignore the criticism of Caldwell given by academics, judges and practitioners, some of which I quoted earlier in this essay. He added that:

³Ša decision which attracts reasoned and outspoken criticism by the leading scholars of the day, respected as authorities in their field, must command attention.²

The final argument utilised by Lord Bingham was, as already mentioned, the decision by the House of Lords in Caldwell was a misinterpretation of the Criminal Damage Act (1971) , due to the fact that the judges involved in the decision failed to consult the Law Commission's report which led to the passing of the act. He justified using the seldom utilised Practice Statement of 1966 to overrule Caldwell, by saying:

³If [the misinterpretation in Caldwell] offended no principle and gave rise to no injustice there would be strong grounds for adhering to the misinterpretation and leaving parliament to correct it if it chose. But this misinterpretation is offensive to principle and is apt to cause injustice. That being so, the need to correct the misinterpretation is compelling.²

After presenting these arguments, Lord Bingham the went on to say why less radical options, such as having an objective recklessness test that would consist of Œa reasonable person with the characteristics of the defendant', would not work. Instead he concluded that it was better to completely overrule R v Caldwell (1982) and revert to subjective recklessness, as laid down by R v Cunningham (1957) , justifying this by saying that:

³I cannot accept that restoration of the law as understood before R v Caldwell would lead to the acquittal of those whom public policy would require to be convicted.²

These argument being so, Lord Bingham decided to overrule the case of R v Caldwell (1982) , using the rights granted to the House of Lords under the Practice Statement (Judicial Precedent) (1966) , allow the defendant's appeal and thus quash their convictions. The other judges, Lord Browne-Wilkinson, Lord Steyn, Lord Hutton and Lord Rodger of Earlsferry consented with Lord Bingham of Cornhill's decision and reasoning for coming to that decision.

In conclusion, the law regarding recklessness has undergone much development since it was first used as a means to interpret the term Œmaliciously' which was prevalent in many 19 th century statutes. With the case of R v Cunningham (1957), it was created as a separate area of law in its own right and it was decided that the test to establish if a defendant was reckless was a subjective one, Œthrough the eyes of the defendant'. Recklessness was further developed in the Criminal Damage Act (1971) , which established that the term Œrecklessly' was to be used instead of the term Œmaliciously' with regards to criminal damage. In addition, it was thought that the Criminal Damage Act (1971) also denoted recklessness to be tested subjectively. The law on recklessness was seemingly settled, but controversy surrounding it was rudely reawakened in the case of R v Caldwell (1982) , in which the House of Lords decreed that the correct test to be used for recklessness was an objective one, Œthrough the eyes of a reasonable person'. However, this did not find much support either in the academia or in the judiciary and so objective recklessness was eventually confined only to cases of criminal damage. As a result of this, the use of an objective test for recklessness for criminal damage began to look more and more like an anomaly that was causing injustice. Perhaps this is why the House of Lords decided to take the brave step, in the recent case of R v G and another (2003) of overruling Caldwell and establishing that subjective recklessness was the type to be used for all offences. However, I believe that the decision in R v G and another (2003) should perhaps not be seen as a development of the law, but rather as a correction to the law, returning it to where it was, before it strayed off the correct path of subjective recklessness and into the wilderness of objective recklessness.

Essay written by Paul Powlesland (A2)

Footnotes ...

Dr Peter Jepson. ŒPeterjepson.com'.

LR 2 CCR 119.

LR 1 QBD 23.

15 Cox CC 75.

2 QB 396.

QB 695.

Lord Lane. R v Stephenson (1979). QB 695.

AC 341.

AC 510.

2 All ER 591.

AC 182.

78 Cr App Rep 149.

2 All ER 1005.

1 WLR 1234.