For a person to be convicted of a criminal act it must be proven beyond all reasonable doubt that two elements were present; the Actus Reus and the Mens Rea with some exceptions, such as, strict liability offences. The Actus Reus being the guilty act and the Mens Rea the guilty mind. Each element is built upon its own principles which need to be satisfied on their own merit before the overall element will be satisfied. Focusing on the Mens Rea elements; intention; a subjective concept as to what the defendant intended at the time of committing the offence as opposed to what the reasonable person thought to have intended , and recklessness; taking of unreasonable risks . Recklessness, in particular has been openly subjected to criticism, in particular the subjective and objective tests have evolved recklessness over time through the application and development of the principle via the English Legal system.
The term reckless dates back to the 19th Century when the case of Pemblition originally coined it in order to interpret the term malicious. The Defendant was charged with ‘unlawfully and maliciously committing any damage, injury, or spoil to or upon any real or personal property whatsoever’ . He was convicted despite the jury finding he had not intended to break the window in question. On appeal, the conviction was quashed with Lord Colderidge CJ finding; “‘if the jury had come to a conclusion that the prisoner was reckless of the consequences of his act’ then they could have found the defendant guilty. The interpretation of the court was that ‘maliciously’ required proof of intent, but also accepted intent could be shown by proof of a recklessness disregard for a foreseeable risk. This decision was followed in Welch and further in Harris where its meaning was developed further to become subjective;…
“If you think that the prisoner set fire to the frame of the picture with a knowledge that in all probability the house itself would thereby be set on fire, and that he was reckless and utterly indifferent as to whether the house caught on fire or not, that is abundant evidence from which you may draw the inference that he intended the probably consequences of his act”,
…as it stayed at the turn of the century until one of the most important cases in the history of recklessness.
The case of Cunningham was a defining moment for the term recklessness. The defendant while stealing money from a gas meter, tore it off the wall leaving pipes exposed. Gas seeped into the basement of the adjacent house affecting the resident. He was charged and convicted of “unlawfully and maliciously administering a noxious thing so as to endanger life” . However, the conviction was quashed as Judge Oliver J had misdirected the jury on the meaning of maliciously; “maliciously” meant “wickedly” doing something which he has no business to do and perfectly well knows it. ‘Wicked’ is as good a definition as any other which you would get”. On appeal, Judge Byrne J said;
“In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (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 has gone on to take the risk of it)”
This meant that when the term ‘malicious’ is used within a statute it was necessary to establish whether the defendant intended the harm or whether he was reckless as to the harm occurring. Cunningham went on to lay down a subjective test for recklessness, it was not enough for someone to foresee a risk of harm; they must have foreseen the risk and committed the act, regardless.
The Law Commission considered the test and subsequently approved the above passage with recommendations that the term malicious be avoided and the term reckless used as an alternative. Although it appears to be a minor change it was actually quite a significant one; the term ‘reckless’ was recommended to become a principle of Mens Rea of its own right, whereby previously it was used as an aid to interpret the term ‘malicious’. Arguably Cunningham is one of the most important cases for establishing the law of recklessness. With regards to the later decision in Caldwell , the Law Commission did not believe the subjective test was leading to unjustified acquittals. The proposals were largely accepted, so much so that the Malicious Damages Act was replaced by the Criminal Damage Act with the words ‘maliciously’ being replaced by ‘intentionally’ and ‘recklessly’. As no definition of reckless was provided within the act, it was assumed, whether rightly or wrongly, that the law remained the same and the rules of Cunningham applied.
As was the case in Stephenson , the Defendant, a schizophrenic, attempting to sleep in a hollow at the side of a haystack, in a bid to keep warm, lit a fire which unfortunately took hold causing £3,500 worth of damage. He was charged and convicted of Criminal Damage . On appeal, the conviction was quashed given the trial judge had said the defendant could be found guilty even if ‘[he had] closed his mind to the obvious risk from his act’, creating more of an objective test than subjective. Lord Lane said; “We wish to make it clear that the test remains subjective, that the knowledge or appreciation of risk of some damage must have entered the defendant’s mind even though he may have suppressed it”, emphasising that the test was a subjective one.
A new definition of recklessness emerged from the ruling of Caldwell , somewhat oddly giving the ruling only three years prior in Stephenson , with it being of an objective nature. The defendant employed by a hotel was dismissed giving rise to a grievance. He got drunk and set fire to the hotel. Luckily the fire was dampened in time with no real harm occurred to the residents. The Defendant argued that due to his intoxication the comprehension that there were people in the hotel at the time did not cross his mind. He plead guilty to an offence under s1(1) , but denied the offence under s1(2) of the Criminal Damage Act. He was convicted nonetheless, his appeal eventually reached the House of Lords where Lord Diplock sought to change the law on recklessness. He did so by stating the form of recklessness derived from Cunningham was only intended to help interpret the word malicious within the old statutes and therefore it need not apply to the more modern statutes were the term reckless was used despite already having been applied in recent cases in relation to the 1971 Act, for example Stephenson . He argued; “the only person who knows what the accused’s mental processes were at the time of committing the crime is the accused himself and probably not even he can recall them accurately when the rage or excitement under which he acted has passed.” and sought to broaden the test for recklessness, thus the objective test was born; “(1) He does an act which in fact creates an obvious risk that property will be destroyed or damaged, and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and he nonetheless gone on to take it.” From then on, recklessness in relation to the criminal damage act would be interpreted objectively, through the eyes of a ‘reasonable man’ as opposed to those of the defendant.
Lord Diplock’s new test was specific to criminal damage, however he intended for it to be used more widely across other areas of law as he believed subjective recklessness had served its intended purpose and was ‘not helpful’ and therefore only objective recklessness should be used. However this attracted a lot of criticism, Lord Browne – Wilkinson, for example, commented that the new test was ‘not very helpful’, but they need not have worried. For instance, Lawrence , decided the same day as Caldwell applied the test for the offence of reckless driving and decided it would be used moving forward, however this became obsolete when the offence was changed to dangerous driving in the new Act . Similarly, it was designated to be used in attempted rape cases following the decision in Pigg however, provisions set out in the Sexual Offences (Amendment) Act and the decision in Morgan together with confirmation from Satnam made it clear a more subjective approach was to be used. The objective test continued to only be in use for the offence of criminal damage once the other offences in which it had been adopted, diminished. It became open to much more criticism especially given the injustices it was causing such as in Elliot which involved a minor with low intelligence. It was unfair, to say the least, to have her compared to the ‘reasonable man’ who did not have the same characteristics as her. Unfortunately the conviction was upheld due to the precedent of Caldwell . Interestingly, Goff J stated; “I would be lacking in candour if I were to conceal my unhappiness about the conclusion which I feel compelled to reach.” The law stayed this way until the groundbreaking case of R v G
The facts of the case were; two minors entered the back yard of a shop in the early hours, lit some newspapers and left them under a wheelie bin then left the yard. The fire spread, causing approximately £1m worth of damage. They were charged with Arson. On appeal, Lord Bingham stated the main question to be decided was; ‘What did Parliament mean when it used the term ‘reckless?’. In answering, Lord Bingham decided, having referred to The Law Commission Report, ‘the term ‘reckless’ was to replace ‘malicious’ and to be given the same meaning provided by Cunningham ’. He went on to say he felt the House of Lords had fallen into an ‘understandable but demonstrable error’ by following Caldwell , but this did not give cause for appeal as the objective test had been approved on many occasions. However, on this occasion he felt it right to overrule such a precedent and set out his four reasons for doing so; ‘(1) it is a ‘salutary principle’ of the law that it had to be proven, especially in cases of serious crime, that the defendant had the necessary mens rea to commit the crime. (2) the objective test set down by Caldwell led to unfairness, especially in cases involving a child. (3) he could not ignore the criticism made by the judiciary and academics. (4) the decision in Caldwell was a misinterpretation of the Criminal Damage Act as the judges failed to refer to the Law Commission Report when making their decision.’
In conclusion, the law on recklessness has undergone much development since it first arose in the 19th Century. It became its own area of law as a result of Cunningham with the test to establish if a defendant was reckless to be a subjective one. It was then developed in statutory law replacing the term ‘malicious’. The law on recklessness took a turn for the worst when it became an objective test following the decision in Caldwell much to the judiciary and academia’s distaste. It was widely criticised, repealed by new offences and even led to grave injustices until the House of Lords bravely overruled Caldwell . They rightly made the decision that recklessness should be subjectively tested as was originally decided by Cunningham . It is arguable that the decision from R v G was not a development but simply a correction to the law and returning it to where it should never have strayed.