R v Cunningham (1957) - subjective recklessness

MPC v Caldwell (1982) - objective recklessness

Elliot v C (a minor) (1983)

R v Lawrence (1982)

R v Reid (1990)

Shimmens Case (1986)

R v Cunningham (1957)

This case was once the leading authority on recklessness. D broke a gas meter to steal the money in it and gas seeped out into the house next door. Dís mother in law was sleeping there and became so ill that her life was endangered. D was convicted of ëmaliciouslyí administering a noxious thing so as to endanger life ëunder S.23 of the OAPA 1861í and appealed. 

The Court of Appeal held that malice must not be taken as to mean 'wickedness', but as requiring either (1) an intention to do the particular harm that was done, or (2) reckless as to whether such harm should occur or not.

Recklessness in this sense means - foreseeing that harm might occur, and going ahead with the act anyway. This is called a subjective test, i.e. the accused is reckless if HE realised there was a risk of gas escaping and endangering someone, and went ahead with his action anyway. (Conviction quashed because of misdirection by the trial judge).

see also MPC v Caldwell.

MPC v Caldwell (1982)

This case created a new and wider test for recklessness. D was an ex-employee of a hotel and held a grudge against its owner. He started a fire at the hotel, which caused some damage and was charged with arson. The old Cunningham test of recognising thereís a risk and going ahead anyway, was extended to include a second limb; namely that the D does an act which creates an obvious risk, and has not given any thought as to the possibility of there being such a risk. This is known as an objective test i.e. the risk was so obvious that any reasonable person would have seen it.

See also R v Cunningham.

R v Lawrence (1982)

This case was decided immediately after Caldwell. D was convicted of causing death by reckless driving. He had knocked down and killed a pedestrian while riding his motorcycle along a busy urban street. He appealed on the basis that the judge had misdirected the jury on the meaning of ërecklesslyí. The House of Lords extended the test from an obvious risk to an obvious and serious risk.

R v Reid (1990)

The Caldwell test was further adapted and analysed in this case, D had been driving his car along a busy main road near Hyde Park in London. He tried to overtake a car on the inside lane but the lane narrowed to accommodate a taxi-drivers hut. Dís car hit the hut and spun off into the oncoming traffic. Dís passenger was killed and he was convicted of causing death by reckless driving. He appealed but the House of Lords rejected his appeal. However the Lords did make it clear that it was no longer necessary to use the exact wording of Caldwell, as amended by Lawrence, to explain the test to the jury. Courts were free to move away form those words altogether if it would assist the jury to understand the meaning of the test.

Elliot v C (a minor) (1983)

This case made it clear that the risk had to be obvious to a reasonable person, not to the actual D. Here, D was a 14-year-old girl with learning difficulties. She played with matches and white spirit and set fire to a neighbourís shed, which was destroyed. 

The magistrates acquitted her because they found that although she gave no thought to the risk of damage, she would not have been capable of appreciating it.

An appeal on a point of legal principle by the prosecution was allowed by the Divisional Court, on the grounds that the Caldwell test was purely objective and the fact that the girl was not capable of appreciating what the risk was irrelevant.

Shimmens Case (1986) (Caldwell lacuna or loophole)

The D had been learning martial arts and wanted to show off his news kills to his friends. He boasted that he could kick at a shop window but exercise such control as just to miss breaking the glass. He was wrong, the glass shattered and he was charged and convicted with criminal damage. At his trial it was argued that he lacked the relevant mens rea of Caldwell recklessness for the offence. He claimed to have thought about whether there was a risk and to have mistakenly concluded there was none ñ so when he acted, he did not think that he was taking a risk. The court did not believe his version of events and convicted him under the Caldwell limb of recklessness ñ thus they did not have to decide whether or not the loophole existed .

(Extra Note:- the issue was eventually tackled in Reid (1990), where the House of Lords recognised that the loophole did exist and held that people would only fall within it if they thought about the risk, and due to a bona fide (genuine honest mistake, and decides there was none) In effect this creates a 3rd limb of recklessness).