Ratio Decidendi
The test for recklessness in criminal damage under s.1 Criminal Damage Act 1971 is subjective, not objective. The defendant must have been subjectively aware of the risk of the relevant consequence (damage to property or endangerment of life) and it must have been unreasonable for them to take that risk given their circumstances. The objective Caldwell test of recklessness — which held that a defendant was reckless if an obvious risk existed and they either did not advert to it or recognised it and took it — was overruled as it was capable of producing unjust convictions and was inconsistent with the general principle that criminal responsibility requires proof of subjective fault. The Caldwell test had also excluded the 'lacuna' where a defendant truly gave no thought to the risk; under the correct subjective approach, if the defendant did not perceive the risk, they cannot be convicted of reckless criminal damage.
حقائق
G and R were two boys aged 11 and 12 respectively. On 21 August 2000, they camped out overnight without their parents' knowledge. In the early hours, in the back yard of a shop in Nantwich, they lit some newspaper and put it under a large plastic wheelie bin. They then left, believing the newspapers would burn themselves out safely. Instead the fire spread and caused approximately £1 million of damage to the shop and adjacent buildings. The boys had not appreciated that there was any risk that the fire would spread. They were charged with arson (criminal damage by fire) contrary to s.1(1) and s.1(3) Criminal Damage Act 1971 being 'reckless as to whether any such property would be destroyed or damaged'. Applying the objective Caldwell test, the Crown Court convicted them on the basis that the risk of the fire spreading would have been obvious to a reasonable adult, and they were convicted of arson. They appealed.
فیصلے کا خلاصہ
The House of Lords unanimously allowed the appeal and overruled R v Caldwell [1982] AC 341. Lord Bingham gave the principal speech, with Lords Browne-Wilkinson, Steyn, Hutton, and Rodger agreeing. Lord Bingham undertook a careful analysis of the Caldwell decision, the Law Commission Report that preceded the Criminal Damage Act 1971, and the CLRC Eighth Report. He held that the objective Caldwell test had departed from the Law Commission's recommendation that recklessness should be subjective, and had produced outcomes inconsistent with principle and justice. The case of the boys — who genuinely had not perceived the risk — illustrated the injustice most starkly: a fair criminal justice system should not convict of serious offences persons who lacked awareness of the relevant risk. Lord Bingham formulated the correct subjective test: a person acts recklessly within s.1 if they are aware of a risk that property will be destroyed or damaged (or that life will be endangered) and it is, in the circumstances known to them, unreasonable to take that risk. The appeals were allowed and the convictions quashed.
اہم اقتباسات
"It is not clearly blameworthy to do something involving a risk of injury to another if... one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment."
— Lord Bingham at [32]
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) 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."
— Lord Bingham at [41]
"The Law Commission's definition of recklessness... was a subjective definition. Caldwell departed from that definition and in my opinion erred in doing so."
— Lord Bingham at [33]
بعد کا علاج
Definitively overruled Caldwell and restored subjective recklessness for criminal damage offences. Now applies to all offences requiring recklessness unless Parliament has expressly provided otherwise.
Applied in R v Brady [2006] EWCA Crim 2413, where the Court of Appeal confirmed that the subjective test from R v G applies to criminal damage offences including arson, and that if there is evidence the defendant did not appreciate the risk the jury must be directed accordingly.
Applied in R v Parker [1977] and reconsidered in light of R v G: where a defendant 'closes their mind' to an obvious risk this may constitute subjective recklessness, but the starting point remains whether they were actually aware of the risk.
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