In R v Caldwell (1982) AC 341, the defendant had been sacked by his employer in a hotel, and sometime after this, he drunkenly set the hotel on fire. According to him, he had only intended to destroy the hotel property. He did not know that at the time of committing the offense, guests were sleeping in some of the hotel rooms. He was charged with arson to cause danger to human life, under section 1 of the Criminal Damage Act 1971.
One of the considerations before the House of Lords was whether self-induced drunkenness can be used to excuse the accused of recklessness. Lord Diplock directed that recklessness under the statute in question meant that the defendant’s act brings forth an obvious risk of damage to property and that the defendant either does not think of the probability of risk or recognizes it but continues to commit the act. In other words, the view of recklessness, in this case, was objective rather than subjective (Brady, 1996).
In the overruling case R v G (2003) UKHL 50, two minors aged 11 and 12 lit some newspapers and left them burning. The newspapers were close to a garbage bin near a shop’s wall. The boys thought that the fire would go out by itself, but it spread and burnt items in the shop worth about a million pounds. The issue before the House of Lords was whether an accused person could be convicted under the Criminal Damage Act 1971 on the grounds of recklessness as to the destruction of the property without giving thought to the risk and whether the age and nature of the accused made them not to be aware of the obvious risk even if they had given it some thought.
What reasons did the House of Lords give for overruling their decision in Caldwell? In the first place, Lord Bingham posed the reason that it is a rule that for an accused person to be convicted of any serious offense, his or her state of mind must be found to have been culpable. He added that the fact that a person does an act with a deliberate intent of causing injury to another should be an obvious reason for conviction, and one cannot rule out this element of men’s rea.
In instances where the accused person disregarded an unacceptable form of risk, Lord Bingham also stated that this could also be said to amount to culpability. But he doubted the automatic culpability of the accused where such a person did not perceive the risk at all except for situations of self-induced drunkenness. For example, to him, a person should not be convicted for reasons such as stupidity or some deficiency in imagination as to fail to see the imminent danger (Brady, 1996).
To apply Caldwell, in this case, would imply using the objective test in determining whether the young boys were reckless in leaving the fire burning. But the fact that these were minors meant that the House of Lord’s induced defense of infancy. The use of Lord Diplock’s test as to whether the accused was conscious of the obviousness of the risk would have been unfair to the two boys. They could not be subjected to the comparison of a reasonable person under their age. Lord Bingham quoted what the judge in the lower court stated, which acknowledged that the rule in Caldwell did not leave any allowance for instances of age or immaturity.
Thus, Lord Bingham in R v G modified the term recklessness as comprising an act where the individual is aware of the risk and, knowing that the risk exists, goes ahead to unreasonably do the act. By this redefinition, he effectively changed the test back to the subjective mode. This consequently allowed the House of Lords to introduce the defence of infancy on the basis of the accused persons’ ages. Instead of looking at what a reasonable person would have done, now the court looks at the particular circumstances of the case and analyse the level of experience or understanding of the accused at the time of committing the act.
A second reason given by Lord Bingham as to the position in Caldwell was that the Diplock test was unfair in the circumstances. He even noted that the trial judge who had convicted the minors in the lower court had been reluctant in doing so. The jury that had convicted the young boys had been guided to apply the law as it was, and they could not introduce sympathy by considering the age of the boys since the law as per the statute and in Caldwell required them to convict on that basis. Thus, the contention here was that it would be unfair for a conviction against a child to be based on the objective test which requires one to measure the culpability of the child by applying the mind of a reasonable person.
A third reason that was given in rejecting the Diplock test in Caldwell was that there was serious and continued criticism of the decision. The Lords agreed that the scholarly criticism of the Caldwell decision was not to be ignored, even though this did not mean that the criticism ought to have eventually led to the overruling (Williams, 1981). Thus, the comments of serious law scholars about the Caldwell decision played some role in reversing the Caldwell decision. Further, besides the scholarly criticism, dissenting opinions and commentaries of judges such as Lord Wilberforce and Lord Edmund in Caldwell brought about concerns as to the usefulness of the decision. The criticism revolved around the harshness and unfairness of applying an objective test in all recklessness cases.
The interpretation of recklessness in Caldwell had been applied directly in R v Lawrence (1981) 1 All ER 974. But it was applied differently in Elliot v C (1983) 1WLR 937. The court here stated that the test for recklessness is a test of whether the risk would be obvious to a reasonable person, as opposed to whether the risk was obvious to the defendant. The latter is the subjective test. The 14-year-old girl in this case was held not to have given any thought to her action before setting fire to a garden shed.
She was not considered by the court to be, at the time of committing the act, a reasonable individual with the capacity to appreciate the obvious risk that would result in burning the garden shed. Hence, the reasoning in Elliot can be said to have influenced the decision to reverse the Caldwell decision to permit the subjective approach especially in instances of offenses committed by minors (Brady, 1996).
In determining the decision in R v G as it did, the House of Lords brought the concept of culpability in terms of recklessness to the question of the extent to which it ought to be used. Are we now to ask ourselves whether a person’s conduct portrayed a substantial or serious and also unjustifiable lack of interest in the risk involved when doing a particular act? Is the concept of a reasonable standard being used to determine the scope of recklessness being done away with? The answer is that the decision to overrule Caldwell was based on the unique circumstances of the case and thus courts should not do away with the aspect of objective analysis. In situations where the accused person is either minor or a lunatic, the subjective approach might be considered in determining recklessness.
This reasoning was posited by Lord Steyn in R v G, who stated that if it was inappropriate to ignore the age of a child when determining recklessness, it meant that even an insane adult could be subjected to the same test as a reasonable person. The effect would be a defective system of justice. The distinction is made between recklessness and negligence, in that recklessness comprises conscious disregard for some substantial and unjustified risk, while negligence comprises a failure to be aware of the imminent risk. The difference is in the awareness as to the risk.
Another concern considering that the House of Lords in R v G was that there had been a misinterpretation of the meaning of the term ‘reckless’ by Lord Diplock and his fellow majority judges. The Lords agreed that the nature of the misinterpretation in Caldwell called for an overhaul of the use of the decision since it directly affected a major principle of law. Thus, to Lord Bingham for instance, had the misinterpretation been of less serious effect, it would have been applied despite the defect.
But had the misinterpretation been of the serious defect as was in the present R v G, it was necessary to reverse the decision. This reason should be of concern to any person affected by the application of the law since it means that if a defective principle is laid down by the higher courts, the wrong principles would be perpetrated and the concept of stare decisis would henceforth be a tool for defective legal systems of justice.
Lord Steyn in R v G argued that restoring the position before Caldwell, which is, the foresight of the resulting consequences as being essential in determining recklessness, was necessary. He also posited the view that the element of a mental state of the defendant’s mind could not be overridden by any rule and by purporting to do so was detrimental to justice. Inquiry as to the defendant’s mental state at the time of committing the offense is a requisite component of convicting the defendant, and Diplock’s approach had left no room for this inquiry (Williams, 1981). He too considered the concerns of scholars in the issue. He also added that there are circumstances where the objective test can and is applicable.
He cited R v K (2002) 1 AC 462 in which the court held that even though a young girl below age 16 is not legally considered to be in a position to consent to an offense of assault, the accused person may use the defense that he reasonably believed that the girl was above the age of 16. But this objective approach could not be made the general rule.
Combining the objective recklessness standard with the issue of lack of experience and understanding would not be in the best interest of the children. The reason, as stated before, is that it would be impracticable and probably unjust to subject minors to the same standard as adults. In other words, the test of a reasonable person is not to be imposed on minors when determining the issue of recklessness, since it would mean that the minors are considered to have the same level of understanding as to the adults (Williams, 1981).
In the case of Booth v Crown PS (2006) All ER 225, the defendant was a pedestrian who had dashed onto a road without first looking for any passing vehicles, and as a result of this, the vehicle was damaged after it hit him. He was charged under the Criminal Damage Act 1971. Using the subjective test, if the pedestrian had stopped to give some thought to the probable risk of crossing the road when there was a passing vehicle at that very moment, he would have averted the injury. Thus pedestrian was, therefore, found to be responsible for damages and was thus expected to pay for his recklessness.
Reference List
Booth v Crown PS (2006) All ER 225.
Brady, J., B. 1996. Recklessness: Law and Philosophy. Springer. 15(2), Pp. 183-200.
Criminal Damage Act 1971.
Elliot v C (1983) 1WLR 937.
R v Caldwell (1982) AC 341.
R v G (2003) UKHL 50.
R v K (2002) 1 AC 462.
R v Lawrence (1981) 1 All ER 974.
Williams, G.1981. Recklessness Redefined. The Cambridge Law Journal 40(2), Pp. 252-283.