“The case of Caldwell is unduly harsh in its effects, but has increasingly become irrelevant to the law on recklessness”. How far do you agree with this statement? Give reasons for your answer.
"The case of Caldwell is unduly harsh in its effects, but has increasingly become irrelevant to the law on recklessness" How far do you agree with this statement? Give reasons for your answer.
The case of Caldwell has had a major impact on the law on recklessness. Before Caldwell, it was generally agreed by case law and by academic opinion that the test for recklessness was subjective: i.e. the defendant must himself have realised the risk. It was not an objective test based on the standards of the reasonable man. Any liability based on those objective terms was classed as liability for negligence. This was known as Subjective recklessness, or Cunningham recklessness. For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk. He must realize that there is a risk involved but if he continues to carry on with his conduct, then he is reckless. In Cunningham (1957), the defendant tore a gas meter off the wall of an unoccupied house in order the steal the money. The gas was left gushing out and it seeped into the neighbouring house where it was breathed in by the victim who was nearly gassed. The defendant was charged under s.23 Offences Against the Person Act 1861, which involves maliciously administering a noxious thing so as to endanger life. The trial judge directed the jury that malice was the equivalent to wicked and the Court of Appeal quashed the conviction - maliciously means intentionally or recklessly and the latter word required proof that the defendant had had some foresight of the risk and yet had still deliberately gone ahead. This was supported in Stephenson (1979) where the accused, a tramp, went to sleep in a haystack. Being somewhat cold, he decided to light a fire and caused some damage. There was medical evidence that the defendant was schizophrenic and that this involved a reduced ability to appreciate or foresee risks to that possessed by a normal person. The trial judge directed the jury that the defendant was reckless if he 'closed his mind to an obvious risk' but the Court of Appeal quashed the conviction with Lord Lane firstly looking at the recommendations of the Law Commission:
...a person is reckless if, a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.
However in 1981, this settled state of the law was thrown into some confusion by the House of Lords. In Caldwell (1981) the accused had done some work for the owner of as hotel but had then quarrelled with him. He got drunk and then had set fire to the hotel in revenge. He was charged with two offences - the first under s.1 (1) Criminal Damage Act 1971 - criminal damage - but also under s.1 (2) of the same act which is criminal damage with the additional element of 'intentionally or recklessly endangering life'. Caldwell pleaded guilty to the lesser charge of criminal damage but not guilty under s.1 (2) - the defence was that he was so drunk that he had not thought about the danger to life at all. The trial judge directed the jury that drunkenness was no defence - the Court of Appeal allowed the appeal and that left the House of Lords to decide on the meaning of recklessness and the relevance of drunkenness. The case of MPC v Caldwell created new and much wider tests for recklessness.
If recklessness is a variety of subjective foresight, then under Majewski (1977) the defendant should be acquitted, as the intoxication raised a doubt as to whether the accused foresaw any risk to life. But if recklessness involved a more objective, gross negligence test, evidence of drunkenness would be irrelevant. In a majority judgment, Lord Diplock (with Lords Keith and Roskill concurring) considered and rejected the Cunningham approach and the suggestion that the Criminal Damage Act of 1971 was in fact drafted with that very decision in mind. He argued that in popular speech there is no distinction between ...
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If recklessness is a variety of subjective foresight, then under Majewski (1977) the defendant should be acquitted, as the intoxication raised a doubt as to whether the accused foresaw any risk to life. But if recklessness involved a more objective, gross negligence test, evidence of drunkenness would be irrelevant. In a majority judgment, Lord Diplock (with Lords Keith and Roskill concurring) considered and rejected the Cunningham approach and the suggestion that the Criminal Damage Act of 1971 was in fact drafted with that very decision in mind. He argued that in popular speech there is no distinction between the person who recognises a risk and goes on nevertheless and the person who never addresses his mind to the obvious risk at all. The law, said Diplock, should not perpetuate 'fine and impracticable distinctions'. Reckless was a word in ordinary speech and means not only taking foreseen and unnecessary risks but also the failure to see such risks:
* there must be an obvious risk, depending on the circumstances in which the defendant acted. This is a risk which would be obvious to the reasonable person - Sangha (1988)
* once the obvious risk is proved, it matters not whether the accused realised that there was a risk and decided to take it or whether he never realised that there was a risk at all - either way the defendant is liable.
* only if the defendant adverted to the possibility of risk but decided that there was no risk, might there be an avenue of escape.
There is a powerful dissent from Edmund-Davies and Wilberforce, arguing that recklessness might be an everyday term but it is also a legal term, defined in countless cases as well as by reform committees. The statute was in fact drafted by the Law Commission who clearly had the Cunningham decision in mind - indeed quite recently the Law Commission have produced a proposal for the codification of the whole of the criminal law in which recklessness is still defined in this sense. Precedent and reason might have been on the side of the dissentients but the Caldwell test of recklessness was upheld by the House of Lords in Lawrence (1982) where the accused was charged with causing death by dangerous driving contrary to s.1 Road Traffic Act 1972 - he had been driving a motor cycle at speeds between 60-80 mph in a town street when he knocked over and killed a pedestrian crossing the road. Diplock again delivers the major judgment. These two decisions took the 1980s critics' award for judicial disaster - some of the kinder comments have been 'pathetically inadequate', 'slap-happy' and 'profoundly regrettable'. In essence, Diplock's rationale was founded firstly on the premise that there is no difference in moral culpability between the defendant who adverts to a risk and the one that does not. Secondly he suggested that it was not a practicable distinction for use in a jury trial. The answer to the first seems to be that moral philosophy clearly draws a distinction between the deliberate risk-taker and the person who fails to appreciate that there is any risk. There must be a distinction between those capable of observing certain standards and those who did not possess that capacity. If you do not differentiate, then the schizoid tramp or the inadequate, backward child is judged by the same standards as the prudent individual.
This point is illustrated in Elliott v. C (1983) where the accused was a 14-yr old girl in a remedial class at school. She had gone out with an older girl, hoping to spend the night at her house. Unable to do so, she stayed out all night. At about 5 am she poured white spirit on the floor of a garden shed, lit it and it flared up out of control. The shed was destroyed. The magistrates, considering her age, understanding, lack of experience and exhaustion, considered that the thought of risk had not entered her head. But they also found that it was a risk that should have been obvious had she given any thought to the matter. They acquitted on the grounds that the risk had to be obvious to that particular defendant. The Divisional Court allowed the prosecutor's appeal - the defendant was reckless if the risk was one that was obvious to a reasonably prudent person. She was charged with arson and the court held the test of a reasonable man took no account of her particular characteristics. The case of Coles (1994) also showed the Court of Appeal's willingness to adhere to precedent regardless of where that might lead or the gross injustices which might result. (Michael J. Allen, Criminal Law, p.74)
Lord Diplock referred to the accused either recognising the risk and continuing or not recognising the risk at all. Within this reasoning there is a gap - what if the accused adverted to the risk but decided that it was safe to proceed? This is illustrated in Chief Constable of Avon and Somerset Constabulary v Shimmen (1986) where the accused was showing off his Korean martial arts skills. He lashed out with his foot anticipating that it would stop two inches short of the shop window. He miscalculated and broke the window. Shimmen is not reckless within the precise wording of Lord Diplock's definition in Caldwell because he has given considerable thought to the risk but come to the wrong conclusion as to its significance. The Divisional Court sent the case back to the justices with directions to convict but without ruling on this point. This "lacuna" or "loophole" in the Caldwell principle was considered by the House of Lords in R v Reid (1992), the most recent attempt to test the lacuna was in R v Merrick (1996). There is a problem with the lacuna, the case of R v Merrick has been criticized as unrealistic. In practice, replacing electrical equipment often creates a temporary danger, which cannot be avoided, yet technically each time in criminal law the electrician is reckless. Whether such a lacuna still exists is a moot point.
Although the point is not discussed formally, it seems that the standard of recklessness required under the common law presumption is Cunningham recklessness. This is consonant with the move in recent years toward subjective assessment of fault, something noted and endorsed by the House of Lords. Given their Lordships' view that a genuine mistake exculpates, by negativing mens rea, even if that mistake is unreasonable, it is hard to see how there is any room for Caldwell recklessness in cases where the statute is silent and the common law presumption of mens rea applies. So what offences are based on Caldwell recklessness? Caldwell recklessness now only applies to the offence of criminal damage. It was sufficient for causing death by reckless driving (now replaced with causing death by dangerous driving: Road Traffic Act 1991) as seen in R v Lawrence (1981). Caldwell recklessness formerly applied to cases of Manslaughter as seen in R v Seymour (1983). However in R v Adomako (1995) Lord Mackay LC explained that Seymour should not be followed as underlying statutory provision (Road Traffic Act 1972) had been repealed.
Lord Diplock argued that there were three good reasons for extending the test for recklessness. First, a defendant may be recklessness in the ordinary sense of the word, meaning careless, regardless or heedless of the possible consequences, even though the risk of harm had not crossed his mind. Secondly, a tribunal of fact cannot be expected to rule confidently on whether the accused's state of mind has crossed 'the narrow dividing line' between being aware of risk and not troubling to consider it. Thirdly, the latter state of mind was no less blameworthy than the former.
There are many suggestions for reform of the law on recklessness. The Law Commission draft Criminal Liability (mental element) Bill provides a redefinition of mens rea generally, and defines recklessness in subjective terms, in accordance with Cunningham rather than Caldwell recklessness. However, in 1996 when reviewing the law on manslaughter, the Law Commission confronted the issue of liability for consequences that are neither intended nor knowingly risked. It concluded that criminalizing the inadvertent causing of death where the risk of death or serious injury is obviously foreseeable and where the defendant has the capacity to advert to the risk. The suggestion for reversion to Cunningham alone is very popular. Smith and Hogan argue that a distinction should be made between someone who knowingly takes a risk, and someone who simply gives no thought to the fact that there might be a risk. They might both be blameworthy, but not, in Smith and Hogan's opinion, equally so. They recommend reverting to the stricter Cunningham definition for recklessness. If the purpose of Caldwell is to insure that people do not get away with giving no thought to a risk of which they should have been aware, a fairer test of what constitutes an obvious and serious risk might be 'in the circumstances, should the defendant (given such characteristics as age, or any mental incapability) have realized there was a risk? This would ensure that blameworthy thoughtlessness would insure liability, but would exclude the unfairness of cases like Elliott.
Caldwell recklessness is often criticised, as we can see from the title of this essay. The critics believe that the test does not make a distinction between the person who knowingly takes a risk and the person who gives no thought to whether there is a risk or not. They believe that since the case of Caldwell there is now a substantial overlap between recklessness and gross negligence. Before Caldwell, there was an obvious difference: recklessness meant knowingly taking a risk; negligence traditionally meant unknowingly taking a risk of which you should have been aware. Caldwell recklessness clearly comes very close to negligence. The adoption of Caldwell recklessness means that a mens rea generally considered less morally blameworthy than Cunningham recklessness is being applied to some serious offences. As the law currently stands concern has been expressed that the higher Cunningham standard is applied to rape and the lower Caldwell standard is applied to criminal damage. This means property is better protected than people are. Caldwell's relevance on the law of recklessness is diminishing, as the test has been considerably restricted in recent years.
