The modern definition of recklessness has developed from
R v Cunningham [1957] 2 QB 396 in which the definition of 'maliciously' for the purposes of the
Offences against the Person Act 1861 was held to require a subjective rather than objective test when a man released gas from the mains while attempting to steal money from the pay-meter. As a result, the gas leaked into the house next door, and partially asphyxiated the man's mother-in-law. The Court of Criminal Appeal reversed the conviction by the trial judge because "maliciously" was read to mean that the result was a reasonably foreseeable consequence of the defendant's actions, saying: This type of recklessness is called "Cunningham recklessness". The current test in England and Wales is thus one of subjective recklessness, as reaffirmed by the House of Lords in
R v G [2003].
R v Caldwell and R v Lawrence In
R v Caldwell [1982] AC 341 a new definition of recklessness was adopted. In late 1979, Caldwell, a disgruntled former hotel employee who had recently been fired by his boss, got very drunk one night and decided to set fire to his former employer's hotel, intending to damage the property. When he set the blaze there were ten guests asleep inside the hotel, and though the fire was extinguished quickly, Caldwell was charged not only with
arson, contrary to section 1(1) of the
Criminal Damage Act 1971 (to which he pleaded guilty), but with the more serious charge of arson with intent to endanger human life, contrary to section 1(2) of that Act. Caldwell was convicted under section 1(2), which requires that the defendant shall: {{quote|{{ordered list|list_style_type=lower-alpha The
House of Lords was mainly concerned with the extent to which self-induced
drunkenness could be a defence to offences of
specific intent and
basic intent, the latter encompassing recklessness. The Lords ultimately ruled that self-induced intoxication could be a defence to specific intent, but not to basic intent, i.e. recklessness. The discussion of recklessness in this case tends to be largely
obiter dicta. However Lord Diplock said at 354F that it would be proper to direct a jury that a defendant charged with an offence under section 1(1) of the Criminal Damage Act 1971 is "reckless as to whether or not any property would be destroyed or damaged" if: {{quote|{{ordered list|list_style_type=lower-alpha To that extent, the test is one of
obviousness, i.e. if it would have been obvious to the reasonable person, the defendant will be punished for failing to foresee it. The decision in
Caldwell was followed in
R v Lawrence [1982] AC 510 in which the defendant was charged with the offence of
causing death by reckless driving contrary to section 1 of the
Road Traffic Act 1972. Following his speech in Caldwell at 354C,
Lord Diplock said at 526E:
Archbold Criminal Pleading, Evidence and Practice, 1999, para 17–52 et seq., refers to this definition of recklessness as "Caldwell/Lawrence recklessness", and at para 17–57 as "Diplock recklessness" and at para 17–56 as the "Caldwell test". This form of recklessness is also called "objective recklessness". In
Elliot v C (a minor) a 14-year-old schoolgirl of low intelligence, who was tired and hungry, inadvertently burned down a garden shed. It was accepted that she did not foresee the risk of fire, and that she had not considered the possible consequences of her action. The court reluctantly followed
Caldwell. It held that a defendant is reckless as to whether property is destroyed if he or she fails to give any thought to the possibility that there is a risk that property will be destroyed that would be obvious to a reasonably prudent person, even though that risk would not have been obvious to the defendant (by reason of age or lack of experience or understanding) if he had given any thought to the possibility that there was risk that property would be destroyed. The focus of this test is the nature of the defendant's conduct rather than his mental state and it became the subject of major criticism. For example, how was the direction to apply to the defendant who had considered the risk and only continued to act after deciding (wrongly as it would later appear) that no risk existed? See
Chief Constable of Avon and Somerset v Shimmen 84 Cr App R 7, [1986] Crim LR 800, DC and
R v Merrick [1996] 1 Cr App R 130, CA. In the continuing judicial debate, Lord Keith observed in
R v Reid (1992) 3 AER 673 (a reckless driving case) that an absence of something from a person's state of mind is as much part of their state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognised risk. Lord Keith stressed that Lord Diplock qualified the model direction as "an appropriate instruction" only, seeking to introduce different standards for different offences. It was further argued that the model direction breached Article 6 of the
European Convention on Human Rights in cases involving a
minor or other persons of reduced capacity. The requirement is that "everyone is entitled to a fair and public hearing". But to judge the moral and legal
culpability of a child by reference to the understanding and life experience of an adult is irrational and, therefore, unfair. In effect, it imposes
strict liability. However,
Z and others v United Kingdom (2002) 34 EHRR characterises Article 6 as procedural rather than substantive.
Restriction of this test to criminal damage and reckless driving This test was intended to be of general application. In
R v Seymour (E), Lord Roskill said that the word "reckless" was to be given the same meaning in relation to all offences which involved recklessness as one of their elements unless an
Act of Parliament otherwise provided. However, the Court of Appeal acted so as to limit its application to offences involving
criminal damage and
reckless driving. After a period of confusion, in
R v Satnam and Kewal, the Court of Appeal held that this test did not apply to the meaning of the word "reckless" in the definition of
rape in section 1 of the
Sexual Offences (Amendment) Act 1976. The definition in section 1 of the
Sexual Offences Act 2003, which supersedes the 1976 Act in cases arising after 1 May 2004, replaced the test of recklessness as to consent with one of lack of reasonable belief in consent. In
R v Prentice and Sullman,
R v Adomako,
R v Holloway, the Court of Appeal ruled that the above statement of Lord Roskill was
obiter and did not apply to cases of
manslaughter consisting of breach of duty. When
R v Adomako went to the House of Lords, it was said that, in cases of involuntary manslaughter, a trial judge need not direct a jury in accordance with the definition of recklessness in
Lawrence.
Abolition of reckless driving The
Road Traffic Act 1991 abolished the offences of
reckless driving and
causing death by reckless driving and replaced them with new offences of
dangerous driving and
causing death by dangerous driving. The change in nomenclature was a reversion to old terminology of former offences, i.e. apparently replacing a
mens rea requirement with a fault element requiring dangerousness.
Section 2A of the
Road Traffic Act 1988 (inserted by the 1991 Act) now contains a definition of dangerous driving which is wholly objective and speaks of things being "obvious" to a competent and careful driver.
R v Caldwell overruled The decision in
Caldwell was overruled by the House of Lords in the case of
R v G, described below. The objective test that it introduced was phased out, and a form of subjective recklessness was introduced instead for cases involving criminal damage. The majority of
mens rea of recklessness is now 'tested' using the Cunningham test.
R v G and another [2003] UKHL 50 Two boys, aged 11 and 12 years, were camping without their parents' permission when they entered the back yard of a shop in the early hours of the morning. Lighting some newspapers they found in the yard, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins standing against the shop wall, where it spread up the wall and on to the roof of the shop. Approximately £1m damage was caused. The children argued they expected the fire to burn itself out and said they gave no thought to the risk of its spreading. When their appeal reached the House of Lords, Lord Bingham saw the need to modify Lord Diplock's definition to take account of the defence of
infancy, which contains the concept of "mischievous discretion". This rule requires the court to consider the extent to which children of eight or more years are able to understand the difference between "right" and "wrong". The Diplock test of "obviousness" might operate unfairly for 11- and 12-year-old boys if they were held to the same standard as reasonable adults. Bingham stated that a person acts 'recklessly' with respect to: {{quote|{{ordered list|list_style_type=lower-roman He expressly brings the test back to a subjectivity in that an accused is to be judged on the basis of their age, experience and understanding rather than on the standard of a hypothetical reasonable person who might have better knowledge and understanding. Nevertheless, the test remains
hybrid because the credibility of the accused's denial of knowledge and understanding will always be judged against an
objective standard of what you would expect a person of the same general age and abilities as the accused to have known. In
Booth v Crown Prosecution Service (2006) All ER (D) 225 (Jan), the Divisional Court upheld a pedestrian's conviction on a charge under the
Criminal Damage Act 1971 that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him. This shows that the likely main priority of pedestrians being their own safety under the
Highway code's near-universal right of way to road vehicles in the carriageway does not always supersede the duty to make other considerations, such as damage to a road vehicle. == See also ==