The definition applied throughout the OAPA and other statutes containing the word malicious. In 1969, the Law Commission proposed the replacement of the Malicious Damage Act with the Criminal Damage Act (1971). They considered that the mental element as expressed in Cunningham was fine, but that for simplicity and clarity the word maliciously should be replaced with “intentionally or recklessly”. Unfortunately recklessness was not defined anywhere in the Act and it was left to the courts to interpret.
After this, the courts continued to apply subjective recklessness, as in STEPHENSON (1979), where D was schizophrenic and sheltered in a field one night. He set a fire to stay warm but he caused a considerable amount of damage to farming equipment. He was charged with reckless criminal damage and evidence was given that his schizophrenia could have deprived D of the normal ability to foresee risk. The judge told the jury that D was reckless if he had closed his mind to the obvious risk. The conviction was quashed because it was deemed that what mattered was that D had foreseen the risk. This appears to be the most fair way, because it is concerned with the mental state of the accused, thus the mens rea. Geoffrey Lane LJ said “a man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act, but the test remained subjective.
Two years later, Objective recklessness was derived in a 3 to 2 decision in the House of Lords, where Lord Diplock said that a person is reckless if he does an act which in fact creates an obvious risk and when he does the act he has either not given any thought to the possibility of risk, or that, realising the risk, he had gone on to take it. This was made clear in the case of CALDWELL (1981), where D got drunk one night and started a fire in V’s hotel. It was dealt with but D was charged with arson under the Criminal Damage Act (1971). On the same day in the case of LAWRENCE (1981) the House of Lords again defined recklessness in the same way (under a different Act). In this case D had killed a pedestrian whilst riding at high speed on a motorcycle. Lord Diplock again reiterated his comments, but raised the point of the involvement of an ordinary prudent individual in recklessness.
However, his comments seemed to require that the risk be obvious whether D foresees it or not. This cannot be the case: D who actually foresees a risk and takes it is reckless, it is irrelevant whether or not it was obvious. Indeed the definition refers to D having recognised there was some risk. The rationale for the redefinition of recklessness in CALDWELL was that a self-induced inability to appreciate risks should be no defence to crimes requiring recklessness.
The Queens Bench Division accepted this latter view as being correct in Elliot v C (1983), where a girl of limited intelligence at a remedial school was convicted of criminal damage for setting a carpet alight when the fire spread. The magistrates acquitted her, but The Crown appealed and a conviction was made, but Goff LJ commented that he felt “constrained to do so by authority”.
It is interesting that in Lawrence, Lord Diplock commented that “regard must be given…to his state of mind…which may displace the inference” (the inference of recklessness), and so this shows that there was no need to give CALDWELL such a strict interpretation such as in Elliot v C and R (STEPHEN MALCOLM), Lord Diplock was concerned with defendants whose mind was affected in some wrong way which seems clear authority to restrict the ratio of CALDWELL to self induced states of mind.
In the cases of REID (1992), ADOMAKO (1995) and COLES (1995) the courts moved through a series of decisions such that objective recklessness was inappropriate in manslaughter cases (Adomako), but remaining the same in criminal damage cases (Coles).
The Caldwell recklessness test is purely objective. As long as the reasonable person would have recognised the risk and would not have taken it, D will be liable even if, because of age, lack of knowledge or inherent lack of reasoning capacity, D would not have recognised the risk had he applied his mind to it (Elliot v C). However, a state of mind where D thinks about the situation and decides that there is no risk is not recklessness, thus creating a Lacuna. The Lords accepted the risk in REID (1992). From the point of view of blameworthiness, it can be argued that this is fair to the genuine defendant. In practice it may prove a loophole which is capable of exploitation by an accused who is unscrupulous or desperate to avoid conviction.
However, where D recognises a risk and takes steps to reduce it, he will still be liable if, after taking precautions, the risk that he recognises as remaining is not so negligible that he would be entitled to ignore it (SHIMMEN 1986). Furthermore, in Merrick (1996) it was held that where D creates a risk in the belief that subsequent precautions will immediately eliminate it, he does not fall within the lacuna since he recognises the risk and carries on regardless.
The two tests are therefore available and it seems that the Cunningham test survives in rape cases while the Caldwell test is to be found in statutory crimes such as criminal damage and motor manslaughter. Glanville Williams and John Smith have condemned the decision and arguments of Diplock in CALDWELL and LAWRENCE as “profoundly regrettable”. It is clear that Diplock’s original intentions of finding those who are intoxicated reckless, but his defined objective recklessness leaves a lot open to interpretation.
Subjective recklessness currently applies to offences against the person and secondary participation whilst objective recklessness applies largely to criminal damage.
The Law Commission have a Criminal Law Bill (1993) and a Government Offences Against the Person Bill (1998) which clearly confirm subjective recklessness and they are proposed to be enacted and covering criminal damage. The existence of this Lacuna in the law may well allow some who are guilty to escape liability, but at the same time, it will prevent those who are not guilty from facing unjust liability. This is of course the golden thread of the English legal system as created in WOOLMINGTON, by which if ten guilty are freed for one innocent also being freed, then the sacrifice is one worth making.
