Recklessness Explained

Essay written by Sandra Day (November 2003)

Introduction

The law to recklessness has developed and changed over a very long time and for much of this time the two types of recklessness have been Cunningham Recklessness and Caldwell recklessness , however this has recently changed. In this essay I am going to talk about the history of recklessness, how the case of R v G and another 2003 has affected it and the proposals for reform which were considered as a result of the case.

The History on the Law on Recklessness

The law on recklessness has a long and complicated history. It started in section 51 of the Malicious Damage Act 1861 which stated that 'whoever shall unlawfully and maliciously commit any damage, injury, or spoil being to an amount exceeding five pounds, shall be guilty of a misdemeanour.' The first person to be charged under this act was in the case of R v Pembliton 1874 . In this case the defendant had been fighting in the street and thrown a large stone at the people he was fighting, however it missed them and it hit a window which caused damage exceeding five pounds. Even though he did not intend to break the window the jury convicted him but later the conviction was quashed as he did not intend to 'unlawfully and maliciously' break the window. This was seen when Blackburn said 'I think it is impossible to say in this case that the prisoner has maliciously done an act which he did not intend to do.'   This made the courts interpret that 'maliciously' meant that intention needed to be proved but they were inclined that intention could be shown by proof of reckless disregard of a perceived risk. This approach was followed in R v Welch 1875 in which the courts decided that the defendant intended to kill, maim or wound a mare and he still carried on recklessly and not caring at all about whether the mare was injured or not.  

The Outline of Criminal Law published in 1902 said the meaning of 'maliciously' in reference to arson. It stated that' it is essential to arson that the incendiary either should have recognised the probability of its taking fire and have been reckless as to whether or not it did so.' This was brought about by the case of by the case of R v Child 1871 where it was held that that the defendant had not intended to set fire to the house and he thought that his actions would not cause that effect. Another case that the Outline of Criminal Law used was the case of R v Faulkner 1877 where the defendant was stealing some rum by candlelight and he spilt some of it and it caught fire. It relied on R v Pembliton and it was noted that he did not intend to cause the fire and his conviction was quashed. After the outline was published, not a lot changed ion the law of recklessness until the case of R v Cunningham1957 . In this case the defendant stole money from a gas meter and in doing so, tore the meter from the wall and left the gas pipes exposed and the gas leaked and affected the woman living next door. His appeal was successful as he said that the word 'maliciously' was used to mean wicked and it was said that he could have been found guilty if (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 had gone on to take the risk of it.)' this statement was accepted to be accurate and it was accepted and became the Cunningham test which is still used today. The case of R v Mowatt 1968 shows more development in the law on recklessness. The defendant struck the victim he was robbing and was charged with wounding with intent to cause grievous bodily harm. The trial judge failed to give any direction on the meaning of 'maliciously' and the jury convicted him and he tried to appeal on this point but that failed. It failed because the courts held that an act may have the consequence of causing some physical harm to some other person, even if the harm foreseen was relatively minor.

In 1971 the Law Commission published an Act which is very important to the history of recklessness. In this they stated that the Cunningham recklessness was acceptable and the fact that the word 'malicious' should be replaced with the word 'reckless or wilful'. This was done because 'malicious' was seen to be out of date and it confused the juries too much. It states that 'what is implicit in 'maliciously' in the present law will appear explicitly as intention or recklessness in the new code.' It also gives a definition of recklessness which is 'a person is reckless if'

(a) Knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and

(b) It is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.'

However this did not replace the approach of unintentional damage. In R v Briggs 1977 the defendant damaged a car and his appeal was successful as the judge did not explain the term 'reckless' and the fact that the defendant's state of mind has to be taken into account. The definition of when a man is reckless was changed in the case of R v Parker 1977 and was changed again in R v Stephenson1979 . The defendant had tried to sleep in a hollow he had made in the side of a haystack and he lit a fire whish set fore to the stack and damaged property worth £3500. However he suffered from a long history of schizophrenia and expert evidence at trial suggested that he may not have had the same ability to foresee or appreciate risks as the mentally normal person. In this case it was established that 'a man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act. It is however not the taking of every risk which could properly be classed as reckless. The risk must be one which it is in all the circumstances unreasonable for him to take.'  

A case which was to change the law on recklessness was the case of R v Caldwell 1982 in which the defendant having a grudge against the owner of the hotel where he worked, got very drunk and set fire to the hotel where the guests were living at the time and he was indicted on two accounts of arson. He pleaded that he was too drunk at the time to realise that his actions could cause that response and the judge said that 'no less blameworthy for a man whose mind was affected by drink to give his mind to the risk of damaging property than for a man whose mind was so affected to appreciate that there was a risk of damage to property but not to appreciate the seriousness of the risk or to trust that good luck would prevent the risk occurring.' This means that if a person is heavily drunk so that he was not in the right frame of mind then intention cannot be proved. The case also said that that to decide whether a person was reckless or not it was necessary to consider the mind of an ordinary prudent individual. This means that would a normal bystander see the risk of the defendant actions and if so they should be found guilty. This was implied straight away as on the same day the case of R v Lawrence (Stephen) 1982 was heard and he won his appeal as the jury did not use the Caldwell test of recklessness. It was decided that his actions should have been compared to a reasonable person to see if their was a clear risk or not and this was not done.

The Caldwell test however has been questioned and criticised about its unfairness in many cases. In Elliot v C (a minor) 1983 the defendant was a fourteen year old girl with low intelligence who had entered a shed in the early morning, poured white spirit on the floor and set it alight. The resulting fire had flared up and she had left the shed, which was destroyed. The Caldwell test was applied and as a reasonable person means a healthy adult she was found guilty in the appeal even though Robert Goff felt constrained by the decision in R v Caldwell and he expressed his unhappiness in doing so and plainly did not consider the outcome to be just. This injustice was also seen in the case of R v Stephen Malcolm R 1984 as the defendant was only a child and he was found guilty as he was compared to an adult. They tried to appeal that the law should be changed to make the comparison to a person with similar characteristics and age as the defendant. However the courts said that if the house had wished to modify the R V Caldwell principle the opportunity existed before in Elliot v C and they did not do anything and therefore they would not do anything now. The modification of the Caldwell test was also rejected in R v Coles and it looked like that it was never going to change until R v G and Another 2003.   

R v G and Another 2003

A major point to note about this case is that one of the defendants was aged eleven and the other was aged twelve. The defendants went camping without their parent's permission and in the early hours of the morning they entered the back yard of the

Co-op shop in Newport Pagnell and they found bundles of newspapers. They then lit some of the newspapers with a lighter and they threw it under a larger plastic wheelie bin which was situated next to another bin which was near the wall of the shop. The defendants left without putting the pieces of lit paper out and these made the wheelie bins catch fire, which spread to the shop wall and then the roof which collapsed and caused £1 million worth of damage. The boys pleaded in court that they thought that the pieces of paper would burn out themselves on the concrete and neither of them realised the risk whatsoever that their actions would cause the shop to burn down.

At the trial Judge Maher ruled that he was bound by to direct the jury in accordance with R v Caldwell 1982 which meant that the jury had to answer a question to find out if the boys were reckless or not. This question was 'would it be obvious to a reasonable bystander watching the building the risk that the burning papers would cause the shop roof to collapse and burn the shop down?' This as in so many of the cases in the history after Caldwell recklessness was established shows the injustice in the law. The judge said that the reasonable person had to be an adult who has experience the lessons learnt by growing up, and the jury should not take their ages, their lack of maturity, their own inability to assess a situation or their good characters into account. Even the judge said that 'this is a harsh test to apply to youngsters' he has no choice and he had to say to the jury that sympathy was not allowed to cloud their answer to the question and because of this the boys were found guilty even though the court established that they did not intend to burn down the building and they did not see the consequences of their actions. The Judge showed this disapproval of using Caldwell recklessness by saying 'I am satisfied in my mind that this is just one of those childish 'pranks' which just went horribly wrong'. His disapproval of the system can also be seen as he gave the defendants light sentences of one year supervision order each.

The case then went to the Court of Appeal to appeal against the fact that the Caldwell test is too harsh and it does not consider youths or the mentally handicapped. However the Court of Appeal was not open to depart from it and so the appeal went to the House of Lords. Here they said that even though that there were many invitations before this case to change the Caldwell test and Parliament did not do anything about it, the judge said that the Caldwell test needs to change. He brought up four different points to show why he thought this way. Firstly he said that 'the conviction of serious crime should depend in proof not simply that the defendant caused a harmful result to another but that his state of mind when acting was capable.' However he carried on and said that it was not so clear to see the blame of one person harming another when he does not genuinely see the risk involved and it is not fair to convict a person when they have just acted silly or have a lack of imagination. Secondly this case showed that Lord Diplock's verdict leads to obvious unfairness and it heavily offended the jury's sense of fairness and it was unfair to convict the children and for them to receive the normal penalty. Thirdly in the history of recklessness there have been many criticisms and complaints made about the Caldwell recklessness and in this appeal the judge said that they should not go unnoticed and that the correction in the law was urgently required. Lastly the definition of 'reckless' which was established in the 1971 Act and in R v Caldwell was a misinterpretation which can easily cause injustice. This is because the Caldwell test made it possible for a person to escape liability if they are heavily drunk so that they are in a state where he cannot see the risk he can cause to others. Also it is unfair to the young and the mentally handicapped as no special consideration is shown to them. If it was then a different result might have been passed.

By looking at these the judge agreed to the appeal and quashed the appellant's convictions. He also changed the meaning of recklessness by saying 'a person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to-

•  a circumstance when he is aware of a risk that it exists or will exist;

•  a result when   he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk.'  

Then ideas were conducted about how the law should be reformed to deal with Caldwell recklessness.

Proposals for Reform

Many different ideas were brought up to help reform the Caldwell test. First of all the House came up with the idea that they could modify the Caldwell test for children. This would mean that instead of the reasonable person being an adult it would be a child the same age as the defendant. However this idea was criticised for a number of reasons. First of all the modification would offend the principle that conviction should depend on proving the state of mind of the defendant to be guilty. Secondly if the test changed to meet the needs of immature children, then it would also need to be changed to meet the needs of the mentally handicapped. Also if this modification was put in placer it would create a lot of argument concerning the qualities and characteristics to be taken into account for comparing the two. Finally it would mean that the misinterpretation of the law would only be replaced with another. Therefore it was not considered to be put into action.

Another method of reform would be to make sure that the defendant would only be regarded as having acted recklessly his failure to give any thought to the obvious risk that property would be damaged and if he had thought about it, the defendant would notice the risk. Again this idea came across some strong criticism as it does not represent the correct interpretation of the law. It can also be seen to make the process even more complicated and be subjected to even more criticism than Caldwell and it is a more speculative task to decide whether the risk would be obvious if he had thought about his actions and if the job of the jury is made more complicated, then they are more likely to make mistakes. Again the House decided that this would be an unpractical way forward and therefore they did not implement it.

The last idea that the house came up with would be to go back to the way the law of recklessness was dealt with before Caldwell was decided. This meant that they would overrule the decision in Caldwell. This idea was found to be the best way forward for many reasons and it was expressed by many different Lords. For example it was said that the Caldwell does not make any special allowance is to be made to the jury if the defendant is a youth or a mentally handicapped person and this is a major injustice in the law as it meant that they did not get a fair trial. This was seen in the case of R v G and another as the jury were bemused that the boys should be treated in the same way as an adult and it was contrary to common sense and the only way that the judge could be lenient to the boys was to give them alight sentence. This system is not acceptable in out modern legal system. This was also seen in the case of Elliot v C (a minor) as in the appeal the judge had no choice but to follow Caldwell even though that it was grossly unfair to the mentally handicapped girl. It was also mentioned that when Caldwell was decided they adopted an interpretation of section one of the 1971 act which was beyond the range of feasible meaning. If the case adopted the wrong meaning of the act then it should be changed to the correct meaning otherwise it makes the law much more confusing.

Another point in favour of overruling Caldwell brought up was the European Convention of Human Rights. In article six of the Human Rights it states that 'all citizens have the right to a fair trial.' Even though Caldwell was implemented before the Human Rights it is clear that it causes an infringement on our human rights and it would justify the reappraisal of Caldwell. Also it can be said that the developments that have been brought up show that Lord Diplock used an 'esoteric meaning' of recklessness and the fact that in the Caldwell case the law took a wrong turn. It is also important to note that many Lords felt that the law of Caldwell was wrong as well. For example Lord Hutton said that following the reasons brought forward he would allow the appeal to take place and Lord Rodger of Earlsferry said that it the best course would be to overrule Caldwell. Therefore the House of Lords decided that they should overrule the case of Caldwell and set the law back on the track that Parliament originally intended to follow. This has been done and in my opinion it was the best way to reform the law as it made it simpler to understand.   

Conclusion

In my personal opinion the abolition of Caldwell recklessness and the courts now just using Cunningham recklessness to find guilt is a good idea and it should have happened a long time ago. There were too many problems caused by the decision in Caldwell and many judges complained, and yet it took so long for Parliament to do anything about it. They saw a mistake in the law and it should have been dealt with a lot easier to make the law much easier for the general public to understand and fairer on the younger and mentally handicapped defendants.