Published: Wed, 07 Mar 2018
R v G  1 AC 1034
The test for recklessness after MPC v Caldwell
The two appellants were boys aged 11 and 12 respectively. They went camping at night unsupervised (and in fact without parental permission). In the early hours of the night they entered the back yard of a Co-Op shop and found old newspapers. They set fire to these newspapers and threw them under a wheelie bin, then proceeded to leave without putting out the fire as they believed it would naturally die out. The fire spread from that wheelie bin to another, and then to the nearby Co-Op shop (specifically the roof) and from there to adjoining buildings. All told, this lead to approximately £1 million of damage. It was accepted by all sides that the appellants did not appreciate that there was any risk at all that the fire would spread in this way. At trial they were convicted under s.1 Criminal Damage Act 1971.
The issue in the case was whether a defendant can be properly convicted under s.1 CDA 1971 due to recklessness as to whether property would be destroyed or damaged if he had not contemplated the risk and due to his personal characteristics (in this case age), even if he had contemplated the risk it would not have been obvious to him. Fundamentally, the issue in the case was whether the test for recklessness is subjective or objective, having regard to the decision in Metropolitan Police Commissioner v Caldwell  AC 341.
The appropriate test for recklessness is subjective, which means that the in order for the defendant to be culpable and to be said to have been reckless as to a given risk, he must first be aware of it. In the present case this was not met and so the appeal was allowed. The court pointed out that the Caldwelltest has led to injustice and so overturned that case.
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