Mens Rea III – Recklessness

The second classification of mens rea is recklessness i.e. where a defendant commits an act without giving further thought to his or her actions. The law on recklessness is divided into the law prior to R v Caldwell (1982) and the law post R v Caldwell (1982).

Prior to Caldwell the only type of recklessness that existed was subjective recklessness as per the decision in R v Cunningham (195I). In Cunningham, the appellant ripped a gas meter from a wall in an attempt to steal money that was deposited in a coin box attached to the meter and as a result gas seeped through fissures in the wall and escaped to the neighboring property where Mrs. Wade (Sarah) was sleeping.

“The appellant was convicted upon an indictment framed under s 23 of the Offences against the person Act (1861) * which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade”

In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either

(1) An actual intention to do the particular kind of harm that in fact was

done; or

(2) recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured. The Court of Appeal reversed the conviction.

In R v Caldwell (1982) the accused, an employee of a hotel who had some grievances against the owners, got very drunk and set fire to the property. There were 10 guests in the hotel at the time. Fortunately, the fire was discovered in time and no harm had befallen any of the guests.

Caldwell was convicted upon two counts of arson. The second count was laid under section 1 (1) of the Criminal Damage Act 1971 - arson destroying property belonging to another. The first and more serious count was laid under section 1 (2) of the 1971 act - arson endangering life. The accused appealed,

The House of Lords upheld the conviction and defined recklessness as follows: -

(1) A person is guilty of recklessness when he does an act which in fact creates a risk that property will be destroyed or damaged and

(2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to commit the act.

The Caldwell test sought to remedy the test in Cunningham which was deemed too narrow and restricted the test to the defendant’s state of mind thereby allowing too many defendants to escape liability.

In R v Stephenson (1979) the defendant was a homeless schizophrenic who had sought refuge in a haystack. He lit a fire to keep himself warm and unfortunately in so doing set fire to the whole haystack. He was convicted in the first instance by a jury but the conviction was quashed by the Court of Appeal on the grounds that the test that should have been applied was the subjective test.

In Elliot v C (1983) – a 14-year-old girl of lower intelligence had started a fire. She entered a shed and found a bottle of spirit. She poured the contents on the floor and threw two lighted matchsticks at it. The second matchstick started a fire and burnt the shed down. When questioned, she said she had no idea why she had started the fire and that she simply felt like it.

At her trial she was charged with arson but she was acquitted. The judges applied the Caldwell test and said that the defendant could only have acted recklessly if she was able to appreciate the risk or the risk would have been obvious if she had given the matter some thought.

The prosecution appealed the case on a point of law. The appeal was allowed …. “if the risk is one which would have been obvious to a reasonably prudent person, once it has been proved that the particular defendant gave no thought to the possibility of there being such a risk, it is not a defense that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it.”

In R v Gemmell and Richards (2003) – two boys aged 11 and 12 respectively, went camping without their parents’ permission. They found themselves behind a Co-op shop and discovered bundles of newspaper stacked up nearby. They opened the newspapers to read and later lit up some of the newspaper. They then threw some of the lit paper under a large plastic wheelie-bin and left the yard without putting out the fire. The wheelie-bin caught fire and spread to another bin, a shop and adjoining buildings causing damages worth £1 million.

The defendants were charged with arson contrary to s 1 (1) and 1 (3) **** of the Criminal Damage Act 1971. The defendants were convicted and the Court of Appeal upheld the conviction because it felt that it was bound by the decision in Caldwell.

The House of Lords quashed the appellants' convictions - "Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?".

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 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." – Lord Bingham.

* s23 of the Offences against the Person Act (1861) - Maliciously administering poison, etc., so as to endanger life or inflict grievous bodily harm - “Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for any term not exceeding ten years . . .”

Criminal Damage Act 1971 Destroying or damaging property

** (1) (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

*** (1) (2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another -

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

**** (1) (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.

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