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Chief Constable of Avon and Somerset Constabulary v Shimmen (1986) 84 Cr App R 7

Recklessness in the case of mistaken discounting of risk

Facts

The defendant was spending time with four of his friends outside a shop in a generally jovial atmosphere. At one stage, the appellant was pushed by one of his friends which caused him to flail his arms and legs, but did he did not hit anyone or anything. This prompted the discussion to evolve to the point that the defendant felt compelled to demonstrate his martial arts abilities to his friends. This involved kicking in the direction of a window in order to demonstrate the level of his control and martial arts skill. However, the defendant’s control was not as advanced as he believed and he broke the window. The defendant was prosecuted and convicted under s.1 of the Criminal Damage Act 1971. It was accepted by the partied that the defendant had no intention to break the window, but he was prosecuted under the recklessness limb of that section. The defendant’s defence had been that he was certain that no risk was involved due to his advanced martial arts skills and that he was therefore not reckless.

Issue

Is a defendant who acted under a mistaken belief as to risk objectively reckless as to the consequences of his actions and therefore guilty of an offence under s.1 CDA 1971.

Held

A defendant who acted upon a mistaken assessment of risk could still be reckless for the purposes of s.1 CDA 1971 where he still allowed for a degree of risk and acted anyway. However, a defendant who was convinced of zero risk would potentially not be objectively reckless because he has neither failed to consider the risk nor consciously run a degree of risk). Since this was not the case in this instance, the case was remitted to the Magistrates with a direction to convict.


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