Criminal Law

A case which was to change the law on recklessness was  R v Caldwell in which the defendant pleaded that he was too drunk at the time to realise that his actions could cause the consequence and the judge said that 'no less blameworthy for a man whose mind was affected by drink to give his mind to the risk of damaging property than for a man whose mind was so affected to appreciate that there was a risk of damage to property but not to appreciate the seriousness of the risk or to trust that good luck would prevent the risk occurring.' The case also said that to decide whether a person was reckless or not it was necessary to consider the mind of an ordinary prudent individual. This means that would a normal bystander see the risk of the defendant’s actions and if so they should be found guilty. This was implied straight away as on the same day the case of R v Lawrence was heard and he won his appeal as the jury did not use the Caldwell test of recklessness.

The Caldwell test however has been questioned and criticised about its unfairness in many cases. In Elliot v C (a minor) the defendant was a fourteen year old girl with low intelligence who was charged with criminal damage.  The Caldwell test was applied and as a reasonable person means a healthy adult she was found guilty in the appeal even though Robert Goff felt constrained by the decision in R v Caldwell and he expressed his unhappiness in doing so and plainly did not consider the outcome to be just. This injustice was also seen in the case of R v Stephen Malcolm as the defendant was only a child and he was found guilty as he was compared to an adult. They tried to appeal that the law should be changed to make the comparison to a person with similar characteristics and age as the defendant. However the courts said that if the house had wished to modify the R V Caldwell principle the opportunity existed before in Elliot v C and they did not do anything. The modification of the Caldwell test was also rejected in R v Coles.

Another problem that arose out of Caldwell was cases where a defendant considered a risk of harm and decided that there was none. Such a person 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. This situation is sometimes referred to as the "loophole" principle. The matter was considered by the House of Lords in R v Reid.The most recent attempt to test the lacuna was: R v Merrick where the Court of Appeal dismissed the appeal and held that there is a difference between avoiding a risk and taking steps to remedy one which has already been created.

Since the House of Lords' decision in R v G and R the Caldwell definition of recklessness can no longer be regarded as good law. A major point to note about this case is that one of the defendants was aged eleven and the other was twelve. The defendants went camping without parental permission and in the early hours of the morning they entered the backyard of a shop in Newport and they found bundles of newspapers. They then lit some of the newspapers and threw them under a plastic bin which was near the wall of the shop. The defendants left without putting the lit paper out and these made the bin catch fire, which spread to the shop and the roof collapsed and caused £1 million worth of damage. The boys pleaded in court that they thought that the pieces of paper would burn out and neither of them realised the risk whatsoever that their actions would cause the shop to burn down.

At the trial Judge Maher ruled that he was bound to direct the jury in accordance with R v Caldwell which meant that the jury had to answer a question to find recklessness which was 'would it be obvious to a reasonable bystander watching the building that there was a risk that the burning papers would cause the roof to collapse and burn the shop down?' This as in so many of the cases in the history after Caldwell shows the injustice in the law. The judge said that the reasonable person had to be an adult who has experienced the lessons learnt by growing up, and the jury should not take their ages, lack of maturity, their inability to assess a situation or their good characters into account. The judge suggested that the test was harsh but he had to direct the jury that sympathy was not allowed to cloud their judgment and because of this the boys were found guilty.

The case then went to the Court of Appeal to appeal against the fact that the Caldwell test was too harsh. However the Court of Appeal was not open to depart from the decision so the appeal went to the House of Lords. Here they said that even though there were many invitations before this case to change the Caldwell test and Parliament did not do anything about it, the judge said that the Caldwell test needed to change. He brought up four different points to show this. Firstly he said that 'the conviction of serious crime should depend in proof not simply that the defendant caused a harmful result to another but that his state of mind when acting was capable.' However he carried on and said that it was not so clear to see the blame of one person harming another when he does not genuinely see the risk involved and it is not fair to convict a person when they have just acted frivolously. Secondly this case showed that Lord Diplock's verdict leads to obvious unfairness and it heavily offended the jury's sense of fairness and was unfair to convict children and for them to receive the normal penalty. Thirdly, there had been many criticisms and complaints made about Caldwell recklessness and in this appeal the judge said that they should not go unnoticed and that correction in the law was urgently required. Lastly the definition of 'reckless' which was established in the 1971 Act and in R v Caldwell was a misinterpretation which can easily cause injustice.

By looking at these the judge agreed to the appeal and quashed the convictions. He also changed the meaning of recklessness by saying 'a person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to – ‘A circumstance when he is aware of a risk that it exists or will exist; 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.'  

Ideas were then conducted about how the law should be reformed to deal with Caldwell recklessness. First of all the House came up with the idea of modifying the test for children. This would mean that instead of the reasonable person being an adult it would be a child the same age as the defendant. However this idea was criticised for a number of reasons. First of all the modification would offend the principle that conviction should depend on proving the state of mind of the defendant to be guilty. Secondly if the test was changed to meet the needs of immature children, then it would also need to be changed to meet the needs of the mentally handicapped. Also if this modification was put in place it would create disputes concerning the characteristics to be taken into account for comparison.  Finally it would mean that the misinterpretation of the law would only be replaced with another.  A.J Ashworth and N.P Metcalfe believe that this method of reform would have caused problems, their article states that: ‘It is widely accepted that children and mentally disordered people should not be convicted by reference to a standard appropriate to adults of sound mind.’  If the test was modified for children it would have to be modified for the mentally handicapped to create certainty and fairness in the law.

Another method of reform would be to make sure that the defendant would only be regarded as having acted recklessly by his failure to give any thought to the obvious risk that property would be damaged and if he had thought about it, the defendant would notice the risk. Again this idea came across some strong criticism as it does not represent the correct interpretation of the law and the House decided that this would be an unpractical way forward.  The last idea that the house came up with would be to go back to the way the law of recklessness was dealt with before Caldwell was decided. This idea was found to be the best way forward for many reasons. For example it was said that the Caldwell test does not make any special allowance to be made to the jury if the defendant is young or mentally handicapped and this is a major injustice in the law. This was seen in the case of R v G and R as the jury were bemused that the boys should be treated in the same way as an adult as it was contrary to common sense. This was also seen in the case of Elliot v C (a minor) as in the appeal the judge had no choice but to follow Caldwell even though it was grossly unfair to the mentally handicapped girl. It was also mentioned that when Caldwell was decided they adopted an interpretation of section one of the 1971 act which was beyond the range of feasible meaning.

Another point in favour of overruling Caldwell brought up was the European Convention of Human Rights. In article six it states that 'all citizens have the right to a fair trial.' Even though Caldwell was implemented before the Human Rights it is clear that it causes an infringement of human rights and it would justify the reappraisal of Caldwell. Therefore the House of Lords decided that they should overrule the case of Caldwell and set the law back on the track that Parliament originally intended to follow. This has been done and in my opinion it was the best way to reform the law as it made it simpler to understand.

In my personal opinion the abolition of Caldwell recklessness and the courts now just using Cunningham recklessness to find guilt is a good idea and it should have happened a long time ago. The previous test of recklessness has produced much adverse comments from academics and judges, and as a test for recklessness it will not be mourned.  There were too many problems caused by the decision in Caldwell and yet it took so long for Parliament to do anything about it. The decision in R v G and R should make the law much easier for the general public to understand and fairer on the younger and mentally handicapped defendants.  However, Mitchell Davies disagrees.  He writes: ‘It is accordingly contended that their Lordships in G went too far in defining recklessness in terms of actual advertence; whilst the new era of recklessness which has dawned is far preferable to that which it eclipsed, real practical difficulties of proof and inconsistencies in jury verdicts may yet force the House of Lords to consider again the vexed question of recklessness.’  However my view on the change in the law was accepted by many academics.  Nicola Haralambous agrees, she writes: ‘There can be no doubt that R v G introduces clarity to the law. Under Caldwell, the lines between recklessness and negligence were blurred, since inadvertent wrongdoing (which is traditionally attributed to negligence) amounted to recklessness.’

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