The progression of the courts change from Caldwell back to Cunningham can be seen in numerous cases. In a case such as Elliot v C [1983], intelligence and age were taken into account as the girl did not perceive any risk in setting fire to a carpet in a shed – her intent was just to keep warm. The cases R v Moloney [1985], R v Hancock [1986] and R v Nedrick [1986] further portray the progression the courts made, where in Moloney Lord Bridge stated that: ‘the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent.’ This was then further established in Nedrick, where Lord Lane CJ based his judgement on Lord Bridge’s statement, and created the questions of virtual certainty: ‘(1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence?’ In Nedrick, the facts were rather similar to those of Caldwell as a man set fire to a woman’s house and it killed her child, but he claimed he had not intended anyone to get hurt and that he did not perceive it as an obvious risk. As there was no intent, the principle of virtual certainty could not be confirmed as he had no foresight of the consequences – therefore his lack of appreciation of the risk allowed his conviction of murder to be substituted with one of manslaughter. This portrays how the courts have used the principle of virtual certainty to help determine the extent to which foresight of risk plays a role in determining the crime.
Nedrick was then confirmed in the case of R v Woollin [1998] where the principle of virtual certainty was used to decide whether or not intent could be inferred, and thereby prove that there was appreciation of risk. It was decided that there was no intent to seriously harm the child even though it was thrown approximately four feet across a room. Any reasonable person would have perceived the risk, but due to the subjective approach that was taken it was shown that the father had no intent to harm the child. So although there was an obvious risk, the courts decided that the lack of intent disqualified it as virtual certainty.
After Woollin, the case that really portrayed that Cunningham was to take precedence over Caldwell was that of R v G and another [2003]. In this case it was stated that neither boy (aged eleven and twelve) appreciated the risk, thinking the fire they had started under a wheelie bin would put itself out. It was a case that clearly portrayed the unfairness of Caldwell, as the boys did not or even could not appreciate the risk. From this point it was clear that Cunningham recklessness should be applied so that characteristics such as age could be taken into account. It made sure that a fair trial would be applied. Thereby it is clear that in cases of recklessness, appreciation of risk is viewed subjectively along with the principle of virtual certainty. It allows the courts to lessen the sentence of those who were incapable of appreciating the risk and to judge whether or not the knowledge and intent of the crime amounted to the creation or understanding of any risk.
In cases such as R v Bateman [1925], R v Adomako [1995] and R v Misra and Srivastava [2004], a different approach applies as they are matters of gross negligence. In these cases there was no awareness of risk, but there should have been. They are judged objectively as the defendant has to provide a fair and reasonable standard of care and competence (determined by the given trade). This was portrayed in Bateman by Lord Hewart CJ when he stated: ‘If a person holds himself out as possessing special skill and knowledge, and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment.’ This statement imposes a duty of care to the patient and it is this standard that gross negligence is assessed by – the fact that the defendant did not perceive any risk is irrelevant as due to their expertise they should have been aware of it. Adomako followed the rule set out by Lord Hewart CJ in Bateman, that ‘in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.’ This portrays how the perception of risk is irrelevant as the consequence has to be risk of death, if not death, due to a breach of their duty of care, for the defendant to be liable of gross negligence. The defendant will be judged against the standard of a reasonable person of their expertise.
In the case of Bateman it was shown that negligence would then be used in matters of compensation where there was no duty of care and risk of death. Negligence is the failure to do what a reasonable person would do, so although Caldwell does not exist in matters of recklessness, the objectivity it represents is present in statute for cases of negligence. A matter of negligence can involve not foreseeing risk or even foreseeing the risk but not acknowledging the magnitude of it.
In some cases strict liability can be imposed so even if a risk is acknowledged and all means possible are taken to avoid it, if the crime is done the person will be liable. So the element of risk is irrelevant. An example is driving without due care and attention as presented by Section 1 of the Road Traffic Act 1972 (R v Lawrence (Stephen) [1982]).
The problem with allowing subjectivity where there are risks involved is that the courts have to assess the extent to which it may affect the outcome of the crime and they have to believe the word of the defendant, as a claim that a risk was not foreseen cannot necessarily be proved. Matters such as intent and knowledge can be inferred from actions, but appreciation of risk is purely in the head of the defendant. The defendants appreciation of risk is only truly considered in cases of recklessness and to a limited extent in cases of negligence. This is due to the fact that it is only in recklessness where a subjective approach is taken. Defences such as provocation, diminished responsibility, insanity and duress may be used in some cases to explain the lack of appreciation of the risk, depending on what the charges are. They are defences that allow defendants to claim that they did not think as the circumstances put them in an impossible situation. In cases where there is foresight of risk but the act is carried out anyways, it is difficult to justify the actions of the defendant. If there is foresight of risk then it seems unreasonable for the defendant not to be held liable but at the same time they could claim that there was duress which caused them to take a risk to avoid harm themselves.
Intention and knowledge are closely tied to appreciation of risk. A defendant may not intend to cause harm but realise there may be a risk of it happening, or even have no intent to cause harm and not realise there is any risk at all. To some extent it is good that the courts can apply subjective reasoning, as it allows for the protection of those who are truly innocent, but it may also allow others who are not to find ways of manipulating the law. The element of risk is hard to define and control, and there are not any particular guidelines telling the courts what to do if the defendant did not think there might be any risk involved. The courts face many problems when presented with risk takers. They have to consider intent as well as other characteristics of a person. They in some sense have to get into the minds of the defendants to prove what was going on at the time of the crime. If a defendant foresees a risk and takes it he may be guilty. If a defendant does not foresee an obvious risk he may or may not be guilty depending on the circumstances. For example in Woollin the risk should have been foreseen but it wasn’t so the charge was lowered. In R v G the charge was quashed due to the age of the defendants. And in Adomako the charge was manslaughter even though the risk was not considered at all. This creates a problem for the courts as there are so many cases and they are all determined so differently that there is no clear indication of what precedence should be followed. They have to be able to read minds, interpret unclear statutes and apply inconsistent common law rules.
Bibliography
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Oxford 9th Edition 2007
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R v Bateman [1925] ALL ER Rep 45
R v Caldwell [1982] AC 341
R v Cunningham [1957] 2 QB 396
Elliot v C [1983] 1 WLR 939
R v G [2003] UKHL 50
R v Hancock [1986] AC 455
R v Lawrence (Stephen) [1982] AC 510
R v Misra and Srivastava [2004] EWCA Crim 2375
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R v Woollin [1998] 3 WLR 382
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R v Nedrick [1986] 1 WLR 1025
R v Woollin [1998] 3 WLR 382
R v G and another [2003] UKHL 50
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[1925] All ER Rep 45 at 49
[1925] All ER Rep 45 at 49
R v Lawrence (Stephen) [1982] AC 510
