What was the impact of the decision of R v G and R?

 

As a result of this reform, a subjective approach will be incorporated when assessing the term recklessness. Consequently it can be seen that the “House of Lords in G and another did in fact adopt the better test in terms of policy and principle. Also English law has progressed to the point where there is, almost certainly, now only one test of recklessness” which is of a subjective nature. Therefore in relation to the question this reform portrays a positive impact from the decision of the House of Lords in RvG.

Additionally from the Cunningham case, the expression ‘Maliciously’ was replaced with the expression ‘reckless’ in RvG by ‘Lord Bingham’ in the House of Lords. ‘Maliciously’ was an expression which was formerly recognisable within the House of Lords. This proposal was changed because the term ‘maliciously’ was seen to be too narrow and with limited scope. However, the expression ‘reckless’ is considered to have a wider capacity for interpretation. Therefore this modification of expressions portrays a positive impact of the decision of the House of Lords in RvG.

The reasonable adult was an issue raised in RvG from the objective approach in the Caldwell test. The issue of a reasonable adult was challenged in a previous case known as Elliott v C. This case highlighted the negative aspects of objective recklessness as the person in question was fourteen years of age with learning difficulties. Evidently the risk must be obvious to the reasonably prudent person, and not necessarily obvious to the defendant. Therefore this conveys the problems within the Caldwell test as it does not cover everything, including individual characteristics. In this case the fourteen year old girl was guilty of criminal damage as she failed to consider the risk which would have been obvious to a reasonable person. Subsequently this issue was raised in RvG, where within the trial, ‘Lord Diplock’s’ direction in Caldwell was used and disagreement occurred as the issue of the reasonable adult was accepted in being aimed at the children of ages eleven and twelve. From this trial, the case went onto the House of Lords, which unanimously answered the conflict of this question. 

The impact of the House of Lords decision in RvG illustrated great criticisms on the Caldwell test, in where it was noted that the Caldwell case was “based on fragile foundations because the law commission report was not referred to” and subsequently was referred to in RvG. Additionally this impact of criticism upon Caldwell was heavily enforced by other law lords, for instance, ‘Lord Hutton’ illustrated his criticism nature by expressing “Experience suggest that in Caldwell in law took a wrong turn” and agreeing with ‘Lord Bingham’. Therefore conveying Lord Diplock’s decision in the Caldwell case was incorrect. Furthermore ‘Lord Diplock’s’ decision in the Caldwell case has been criticised by many academics who have described the decision to be “Pathetically inadequate, slap happy and profoundly regrettable”. Therefore the decision in the House of Lords in RvG illustrated these criticisms by rejecting the Caldwell recklessness approach.

On the other hand, one can note that the decision in RvG in the House of Lords has had significant criticism on the basis of the outcome of the case. Academics have criticised RvG that the decision of the case should have been different. For example, ‘Professor Keating’ criticised the decision of RvG by where in his investigation, he revealed “69% of members of the public do regard behaviour such as that of the boys as criminally blameworthy” thus illustrating that the boys between ages eleven and twelve in RvG were old enough to appreciate the risks involved.

Additionally, the House of Lords decision in RvG has conveyed an impact of a criticising nature. It can be seen that as a result of RvG, there are critics that illustrate that it will be too easy for a defendant to state that they have not considered a risk to others and therefore may by acquitted at their case. On the contrary, the House of Lords have reasserted the subjective test instead of the objective test seen in Caldwell and have also established that if the defendant is voluntary intoxicated, they can be convicted without the awareness of the risk present. In the RvG case, the House of Lords conveyed this to be seen as a ‘special exception’ in accordance with crimes concerning intoxicated individuals. Evidently this conveys how the House of Lords in RvG took into account of refining the Caldwell test due it being unfair, and achieving justice by taking into consideration, individual characteristics which weren’t present before in the Caldwell test.

As mentioned above, one can note that the House of Lords decision in RvG illustrated criticism thus conveying a negative impact of the case. This can be seen as the RvG case only overrules the objective test in criminal damage, therefore the Caldwell test still applies today in certain cases after RvG, this can be seen in R v Castle (Mark Anthony), in where both the RvG and Caldwell tests were applied. Additionally ‘Simester and Sullivan’, both academics argue that “Caldwell reckless could still be applied in some offences”, an example in where Caldwell has been applied can be seen by the “Data Protection Act 1998”.

Alternatively, one can suggest that there has been a positive impact of the House of Lords decision in RvG. This can be conveyed by where the courts  no longer have to distinguish what type of recklessness has to be applied and the House of Lords in RvG has illustrated that the subjective one will be upheld in future cases concerning recklessness. Therefore this has allowed the courts to scrutinize the expression reckless more easily than seen in cases before RvG. An illustration of this can be seen in Eliot v C as noted above.

In addition one can note that RvG case has ruled out a clear distinction between negligence and recklessness. It can be illustrated by previous cases that before the decision in RvG, there was not a clear distinction between both concepts. An example of a case is Chief Constable of Avon v Shimmen. Within this case, it was deemed that a person who stops to think will still be liable if he realised there was some risk. Therefore this case illustrates that the Caldwell test made individuals guilty who previously were not guilty due to them being careless, but now after RvG are reckless.

Overall, one must appreciate the House of Lords decision in RvG, which has allowed a subjective test to be reasserted when referring to recklessness and introduced a reformed definition of subjective recklessness. Additionally the decision has allowed a clear distinction to be applied when assessing negligence and recklessness cases. Moreover, the Caldwell test has been overruled in relation to criminal damage. Furthermore it can be identified above that there are both positive and negative impacts which have departed from the RvG decision in the House of Lords.  

Word Count: 1648 (Excluding Footnotes and Citations)

Bibliography:

1. Ormerod D. Smith and Hogan Criminal Law (Oxford University Press, 2008, 12th Edition) p(p).109-114
2. Reed A. Fitzpatrick B. Criminal Law (Sweet and Maxwell, 2006, 3rd Edition) p(p) 64-71
3. Herring J. Criminal Law Text, Cases and Materials (Oxford University Press 2008, 3rd Edition) p(p) 149-157
4. Clarkson C.M.V. Keating H.M. Cunningham S.R. Clarkson and Keating Criminal Law Text and Materials (Sweet Maxwell, 2007, 6th Edition) Pages 162-169

Acts Used:

Criminal Damage Act 1971

Data Protection Act 1998

Law Journal’s used:

• (2007) CLR (Criminal Law Review)
• (2004) J JOTP (Justice of the peace)

West Law: Last Accessed Thursday 8th January 2009

Websites Used: Last Accessed on Friday 9th January 2009:  

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