Published: Wed, 07 Mar 2018
R v G and another  UKHL 50,  1 AC 1034
Recklessness in criminal law has resulted in conflicting opinions as to whether a subjective test should be applied or an objective test. Under the Criminal Damage Act 1971 s1 a person acts recklessly when they are are aware of the risk that would occur and it would be unreasonable to take that risk yet they do the act anyway. The law in regards to recklessness has experienced several changes over the past 50 years with the most recent being the House of Lords decision in R v G.
Case law prior to R v G
Prior to the case of R v G, there were two main approaches to recklessness. The first was derived from the case of R v Cunningham were the interpretation of recklessness was when the defendant foresees the risk of harm yet does the act anyway. The term malicious was replaced with recklessness and supported by statute as noted in the Criminal Damage Act 1971. This definition of recklessness was clarified in numerous cases that followed Cunningham such as Parker, Briggs and Stephenson.The foresight of some damage was all that was needed and knowledge or appreciation of risk must have entered the defendants mind.
There are failures in this subjective test as it can be overlooked that a defendant can still be guilty of an offence by having impassive disregard for others. There is a risk that when a jury accept that a defendant did not foresee the risk, they may acquit them even when the defendant should have seen or been aware of the risk.
The second approach followed the case of MPC v Caldwell which interpreted recklessness in an objective way. Lord Diplock stated that a defendant would be considered reckless if he does an act which creates obvious risk or property damage. And when he does the act and gives no thought to the risk or recognised the risk but does the act anyway. The decision in Caldwell has faced wide criticism as it criminalised defendants who genuinely did not foresee a risk of harm. This is echoed by Ibbetson who has suggested Caldwell was a terrible decision due to there being an unprincipled distinction between criminal damage and offences against the person which in turn led to unjust results especially in cases were the defendant was a child or uneducated. Whilst this assertion may be true, the decision in Caldwell aimed to address problems that existed in criminal law in the 1970’s.
The facts in R. v. G
The defendants were aged 11 and 12 years old at the time of the offence. They went camping against their parents permission and set fire to newspapers at the back of a shop. Prior to leaving the scene, they threw the newspapers underneath a wheelie bin and the fire spread to the shop and the surrounding buildings causing £1 million worth of damage. It was accepted at trial that the defendants did not appreciate the risks of the fire spreading and did not intend to burn down the building, but the risk would have been obvious to a reasonable person. The jury was directed under the objective test contained in Caldwell that failure to give thought to an obvious risk was sufficient mens rea for the offence and the jury convicted the defendants.
Issues and outcome
The question raised by the CA in R v G was whether a defendant could be properly convicted under CDA 1971 s1 on the basis that he was reckless as to whether property was damaged when no thought was given to the risk, and they did not think about the risk due to age or personal characteristics. The CA upheld the conviction, however the House of Lords overruled the decision and brought about the demise of the objective test of recklessness found in Caldwell.
Lord Bingham stated that the rules in Caldwell led to obvious unfairness, especially when the defendant’s capacity to appreciate risk is inferior to others. The HL, whilst not overruling the decision in Caldwell, sought to reinstate the law as it was thought to be interpreted before 1982 in line with the Cunningham test, where by a person will be “reckless” only if he or she foresees a risk and none the less goes on to take the risk unreasonably. The test for recklessness used by the HL reverts back to the draft criminal code which has a number of differences from the subjective test originally used by Cunningham. Firstly Cunningham only refers to the taking of risks as to the results and does not mention the circumstance. In addition the draft code adds an additional restriction where the defendants risk taking must have been unreasonable. In summary, balance the seriousness of the risk against the gravity of the harm.
The law following R. v. G
Following the case of R v G, the court have applied the definition of recklessness to several cases in relation to voluntary intoxication where the defendant’s foresight of the risk at the time of intoxication is not investigated. What the court is concerned with is whether the defendant, if sober, would have noticed the risk at the time of acting. In the case of Booth v CPS the court upheld a conviction for criminal damage when the defendant was drunk and stepped out of the way of a car causing a collision and £517 worth of damage. It was ruled that despite the defendant being drunk, he must have closed his mind to the risk. Despite the rules laid down in R v G, the application in this case appears to be objective in regards to foresight.
There are still issues that arise from the application of recklessness within the criminal law. If the approach to recklessness is too subjective, guilty parties can easily avoid liability. However if the test is too objective it can also lead to injustice. The HL decision in R v G has prompted the question, why was the Caldwell rule not modified instead of merely being departed from? Lord Bingham addressed this by saying that if the rules were modified for children it would also need to be modified for defendants with mental disabilities which would cause problems for a jury. This did, however indicate the kind of modification that was needed, in that a defendant should only be regarded as acting recklessly where the risk would have been obvious to them and they had given thought to it. It is suggested that a combination of both subjective and objective approaches be adopted in order to address this issue
Booth v CPS (2006) EWHC 192,  ALL ER (D) 225 (Jan)
R v Briggs (1977) 1 ALL ER 475
R v Cunningham (1957) 2QB 396
R v G and Another  1 AC 1034
MPC v Caldwell (1982) AC 341
R v Parker (1977) 63 CAS 211
R v Stephenson (1979) QB 695
Criminal Damage Act 1971 section 1
Crosby C, “Recklessness – the continuing search for a definition” JCL 2008 72 (313).
Elliot C, “Recklessness: Caldwell test abolished” J.Crim.L.2004, 68 (1) 31-33
Ibbetson D, “Recklessness restored” C.L.J. 2004, 63 (1).
Kibel D, “Inadvertent recklessness in criminal law” LQR 2004 (120) Oct, 548-554.
Stark F, “It’s only words: On meaning and mens rea” CLJ 2003 72 (1) 155-177
Smith and Hogan, Text, cases and material on Criminal Law (11th edition, Oxford university press 2014) 902
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