Another case, which closely followed the same routes as Cunningham was in Stephenson (1979), a tramp decided to sleep in a pile of hay, where he then decided to set fire to it, this resulted in a considerable amount of damage occurring from the fire. It was held that the defendant was suffering from an illness that disabled him from knowing the right and wrong of his actions, which a normal man in return would be able to identify. Coincidently the judge who was hearing the case directed the jury in the wrong manner that we saw in Cunningham and told them that the ‘defendant was reckless if he closed his mind to an obvious risk.’ The COA again quashed this decision because the defendant did not have the right mind at the time to realise that what he was doing would result in such damage and it was seen as an inadequate ruling as to the rules set out in Cunningham earlier on.
It was once believed that Cunningham recklessness would apply subjectively only meaning that the defendant had known that damage would occur but still went ahead with his actions nevertheless. But in the 1980’s, the term recklessness became even more complicated than ever before with a new meaning established by the House of Lords. In the case of MPC v. Caldwell (1982), the defendant had done some work in a hotel for the owner but eventually had a clash with the owner, as a result, the defendant became very drunk one night and set fire to the hotel, which caused serious damage in several parts of the hotel. The defendant was taken to court and was charged twice under the same act of parliament. Firstly, under the Criminal Damage Act of 1971 under s. 1 and then again under s. 1 (2). The defendant only pleaded guilty once to the crime of criminal damage and not guilty to s. 1 (2) as his defence was that due to drunkenness he did not have the correct mental mind of a reasonable man in order not to commit the crime which he had committed. Caldwell recklessness came to be known as Objective recklessness. This is when the risk should have been obvious to the reasonable man and that any man should have had the ability to recognise that his actions were wrong had he stopped and though about it. Objective recklessness is much more complicated than its originally thought to be; firstly in R v. Coles (1994) and Elliott v. C (1983), it was decided in these cases that the danger of the task must have been obvious to the normal man but not necessarily to the defendant himself. This alone took many law critics by surprise during the 1980’s. Not only this, but in Chief Constable of Avon v Shimmen (1987), it was also decided that if the defendant had stopped to think and nonetheless went on and took the risk, then he would be liable for his actions. It must be said that objective recklessness is much more complicated than subjective recklessness because it applies to different cases in criminal law, what Cunningham applies to does not apply to any of the Caldwell cases and this has been seen as a major draw back because it is necessary for the courts that every time a case is brought forward to them they must make a distinction as to what recklessness applies to in what cases which may seem as a waste of court time but then again, they don’t have much choice in the matter either.
There is what has come to be known as the Caldwell ‘lacuna’ or ‘loophole.’ This is when the defendant had measured whether there was a risk or not but decided anyway that there was none. The defendant will not be deemed reckless under the Caldwell rulings because even though he may have seen that that there was a kind of risk involved, he eventually came to wrong conclusion as a consequence. This decision was considered in the cases of R v Reid (1992) and also in R v Merrick (1996). As I mentioned before, both types of recklessness apply to different cases. The offences that apply to Cunningham are as follows, firstly the word ‘malicious’ must be in the wording of the offence even though in certain cases where malicious is not present, the defendant can still be charged for his actions. Subjective recklessness applies to cases involving assault (R v. Parmenter (1991)), cases involving rape such as that decided in R v Satnam (1983) where under the Sexual Offences Act of 1956 still uses the term reckless as an approach when considering rape.
Offences, which require objective recklessness, are as follows; Caldwell recklessness now only applies to cases involving criminal damage such as reckless driving and used to apply to cases of manslaughter however, the Lord Chancellor changed this though in the case of R v Adomako (1994).
In conclusion, recklessness has been a very much-debated word for almost over seven decades now. One must know that both kinds of recklessness are approached differently by the courts and apply to varying different offences under the criminal law. Many critics have often set harsh criticism firstly because it is not normal to have two different separate meanings for the same word where conflict has often resulted because of their meanings. It seems that Caldwell recklessness is the one, which is often under much attack because it has not been seen as having just one meaning but really more than two and applies varyingly. If one were to comment about both meanings, they would become stuck as to knowing which recklessness their offence fits under and in reality their meanings would not seem obvious to the normal man either. One could argue that Cunningham recklessness is much easier to understand than the latter because its rules are quite basic to recognise and in general when Lord Lane set the rules out he kept it brief. It has also been argued that Caldwell recklessness does not ‘set out any distinctions between the person who knowingly takes a risk and the person who gives no thought to whether there is a risk or not.’ Lastly the law commission has suggested reform as to just a subjective approach being used by the courts only, they suggested the following should be considered ‘a person acts- 'recklessly' with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) 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. This may seem confusing at first but in the long run at least there would be one approach to the term reckless rather than two which could then make our understanding of recklessness much easier than before but whether or not these changes will actually occur can only be determined by the courts themselves who currently do not seem to be having difficulties in using the two different approaches respectively.
