RECKLESSNESS

Introduction:

There are two definitions of recklessness known to English law: subjective also known as
adevertent/Cunningham recklessness, and objective/inadvertent/Caldwell recklessness.
Of the two, subjective recklessness is more important, and can be regarded as the
standard variety of recklessness. Some crimes use one and some the other.

Subjective (Advertent) Recklessness:

It was in Cunningham(1957) that the Court of Criminal Appeal held that, in a statute, the
term ‘malicious’ denotes intention or recklessness, and that recklessness means that ‘the
accused has foreseen that the particular kind of harm might be done and yet has gone on
to take the risk of it’..

What are the problems with this approach?

1. Impulsive Risk-taker:

One is where a person acts impulsively in the heat of the moment. This is often expressed
in ordinary speech by saying ‘I acted without thinking’, or ‘I just didn’t think’. D denies that
he or she was aware of the risk at the time of acting. In Parker (1977) D tried unsuccessfully
to make a telephone call from a kiosk; in his frustration he slammed down the receiver and
broke it. The Court of Appeal upheld his conviction for causing criminal damage recklessly,
despite his defence that it did not occur to him that he might damage the telephone. The
Court held that he must have known that he was dealing with breakable material, even if
that fact was no at the forefront of his mind when he slammed the receiver down - ‘closed
his mind to the obvious’

2. Couldn’t careless state of Mind:

The second problem is the ‘couldn’t care less’ attitude: D might not have thought about a
particular consequence, because it was irrelevant to his interests. If this version of events
is accepted, D must be acquitted on the advertent definition of recklessness, as requiring
awareness of risk. The question is what D’s attitude was towards the victim’s interests: D’s
words and acts provide the basis for determining that attitude.

3. A preoccupied Defendant:

The third possibility would be where D states that he was so preoccupied with other
aspects of what he was doing as to give no thought to a particular consequence (although
the courts might be reluctant to accept such a defence)

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 4. Too Narrow:

This only took into account the state of mind of the D and he would be able to escape
liability simply by saying that he did not foresee – the problem was addressed in the case
of Parker.

5. Time – consuming:

It was difficult and time consuming to establish the state of mind of the D – easier way
would have been to apply an objective approach.

Caldwell/inadvertent Recklessness:

For a short period at the end of the last century, recklessness took on an objective
meaning. No longer was it necessary to prove that D foresaw the risk of harm
accompanying their action; it was enough that they should have foreseen it.

Lord Diplock in Caldwell (1982) formulated the following model direction: a person
is guilty of causing criminal damage recklessly if:

a) He does an act which in fact creates an obvious risk that property would be
destroyed or damaged and

b) 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 do it.

The key thing about this direction is that it tells the jury that it can convict of a crime
of Recklessness although D gave no thought to the risk of harm, so long as the risk
was obvious; in other words, as long as the reasonable person would have
recognized the risk.

‘Ordinary and Prudent Reasonable Man’

What are the criticism of this approach?

i. Ignored the intention of Parliament:

The first problem concerns the manner in which the law was changed. Lord Diplock, who
delivered the judgment in both Caldwell and Lawrence, was said to have ignored the
intention of Parliament whose reform of the law of criminal damage provided the
opportunity for the case to be decided. Lord Edmund-Davies, in his dissenting judgment,
pointed out that the Criminal Damage Act 1971, the statute which gave rise to Caldwell,

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was in the main the work of the Law Commission, who in arguing for a modernisation of
the law had specifically defined recklessness in its subjective form. The decision used a
change in the form of the law to bring about a fundamental change in its substance, and
one that went against the proposal of the initiating reform body. It has therefore been
argued within the liberal discourse of the rule of law that Lord Diplock stepped outside the
canons of legitimate judicial interpretation and did not properly attend to the ‘rules of the
legal game’.

ii. Interpretation makes easier to convict an individual – over inclusive/too

wide:

The second objection concerns the effect of interpretation makes it easier to convict an
individual because a jury will not, under the objective limb of the test, have to look into the
accused’s mind in order to decide whether a risk was foreseen. Simply jury will consider
whether a reasonable person would have foreseen the risk. Considerably more acts of
damage potentially come within the purview of the criminal justice system, and it becomes
easier for the prosecution to gain convictions.

The objection to this is again a liberal one. Not only does Caldwell open up the field of
liability, but also, in conjunction with later decisions (Elliot v. C; 1983); Stephen Malcolm R
(1984), it permits conviction where principles of subjective individual responsibility would
otherwise deny it. Caldwell criminalises people unjustly, and offends against the principles
of individual justice upon which the criminal law is supposedly based. Under the current
law, the schizophrenic girl who burns down a haystack (Stephenson (1979), and the
fourteen year-old educationally subnormal girl who sets fire to a shed (Elliott v. C), can be
convicted of acts of criminal damage. This is regardless of their inability, through no
fault of their own, to match the standard of the reasonable person.

iii. Caldwell Recklessness cannot be termed mens rea – blurs distinction

between Negligence and Recklessness – ‘the culpable state of mind of the
D is not taken into account:

Third objection is that Caldwell recklessness cannot properly be termed mens rea, because
it is not a state of mind. A person who fails to give thought to a consequence does not have
a state of mind in relation to that consequence. But this presupposes that the only proper
ground for ascribing blame for serious offences is advertence-in other words, that the
minimum requirements for criminal culpability should be that the harmful consequence
passed through D’s mind.

iv. Does not take into account incapacity:

The case of Elliott v C resulted in conviction of a fourteen year old mentally
subnormal girl for arson. The Queen’s Bench Divisional Court held that the le issue
was whether the risk would have been obvious to the ordinary, prudent person,
not whether it would be obvious to the accused if she had thought about it.

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 Such a decision clearly ran contrary to the principle that punishment should be
deserved.

Criticism relied on the ‘unfairness’ it created when applied to children, the absent
minded and the inexperienced.

v. The Caldwell approach did not show any sensitivity to Minors which lead to
obvious unfairness and rigidity in the law – too wide:
This was evidenced in cases like DPP v Khan and Elliott v C where both
Defendants were minors but were compared to an ordinary prudent reasonable
man.

vi. Caldwell Loophole:

The difficulty with Caldwell is that the model direction makes no mention of the person who
recognizes the risk but believes that it can be eliminated. This has led commentators to
argue that there is a gap or loophole which may be exploited to gain an acquittal in
appropriate cases: if D has recognized the risk, he is not in Lord Diplock’s category of
failing to give thought to it; and if D believes the risk has been eliminated, he has not gone
on to take the risk.

The argument was run before the Divisional Court in Chief Constable of Avon and
Somerset v. Shimmen (1987The Divisional Court did not gainsay the loophole argument,
but they directed that D should be convicted because he had said in evidence that he
thought he had eliminated as much risk as possible. This means that he did not think he
had eliminated all risk, which in turn means that he knew there was a slight risk, and that
is enough for subjective recklessness.

vii. Criticism by Professor Smith:

In the case of Elliott v C Professor Smith called Lord Diplock’s reasoning as
‘pathetically inadequate’. It was stated that punishing someone for something
he was incapable of foreseeing goes against the fundamental principles of criminal
law.
In Elliott they were told not to make allowance for the D’s youth, lack of maturity
or her own inability to assess the situation. One should be aware of the risk in
order to be properly blamed for it.

viii. 2 parallel approaches to Recklessnes:

After the case of R v Parmenter two parallel approaches governed Recklessness.
The Caldwell definition became the standard definition for all crimes of
Recklessness, except for crimes of violence such as assault which are still to be
governed by the subjective approach.
Not only did this create confusion and make the law more vague but rather it was
a failed attempt at seeking a solution. The reason being that this distinction solved
problems for cases like DPP v Khan but not for cases like Elliott v C (a case where

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 the V caused criminal damage and therefore if such a case where to come to
court, it would be assessed as per the objective approach). Here is the dilemma
for the present law of recklessness.

As a result the law consisted of two incompatible approaches where neither by

itself seems right. If the orthodox subjectivist approach is too narrow, ignoring the
‘capacity’ form of inadvertent subjectivity, the objectivist approach is too broad and
indeterminate. It leaves the boundaries of the substantive law to be established in
individual cases on the basis of value judgments about right and wrong. Here,
opinions may differ and different social and political perceptions will be brought to
bear.

ix. The Caldwell test was very difficult to understand

x. The culpable state of mind of the D was not taken into account

After almost 30 years of criticisms and despite an unusual degree of stubbornness, the
courts have now rejected Caldwell approach to Recklessness and applied a single, straight
forward definition of Recklessness throughout the range of offences making Subjective
approach the only valid one. (AG’s reference no3)

Sensible solution:

However, if we are to move towards greater reliance on objective standards,the following

point should be considered. The fact that objective tests must be applied subject to
capacity-based exceptions. This preserves the principle of individual autonomy by
ensuring that no person is convicted who lacked the capacity to conform his or her
behaviour to the standard required. Failure to recognize this in the Caldwell decision was
a major fault that drew subsequent discussions away from the moral basis of the test itself.
This too had its share of problems. Lord Bingham acknowledged this option but decided
against it on the grounds that it would lead to ‘difficult and contentious argument’ regarding
various characteristics to be taken into account.

CONCLUSION:

The Caldwell definition is now of little practical significance and occupies a somewhat
isolated position in English law. It applies only to the crime of criminal damage (including
arson) and to a few other statutory offences.

R v G and another

House of Lords quashed the appellants’ convictions in holding that a person acted
recklessly within the meaning of s 1 of the 1971 Act with respect to (i) a circumstance when
he was aware of a risk that it existed or would exist; (ii) a result when he was aware of a
risk that it would occur; and it was, in the circumstances known to him, unreasonable to
take the risk.

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 Lord Bingham rejected to follow the Caldwell reasoning in this case for four reasons, taken
together.

First, it is a salutary principle that conviction of serious crime should depend on proof not
simply that the defendant caused an injurious result to another but that his state of mind
when so acting was culpable. This is the meaning of the familiar rule actus non facit reum
nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to
cause the injurious result, but knowing disregard of an appreciated and unacceptable risk
of causing an injurious result or a deliberate closing of the mind to such risk would be
readily accepted as culpable also. It is clearly blameworthy to take an obvious and
significant risk of causing injury to another. But it is not clearly blameworthy to do
something involving a risk of injury to another if one genuinely does not perceive the
risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither
of those failings should expose him to conviction of serious crime or the risk of punishment.

Secondly, the present case shows, more clearly than any other reported case since R v
Caldwell that the model direction formulated by Lord Diplock is capable of leading to
obvious unfairness. It is neither moral nor just to convict a defendant (least of all a child)
on the strength of what someone else would have held if the defendant himself had no
such apprehension. Nor, the defendant having been convicted is the problem cured by
imposition of a nominal penalty.

Thirdly, I do not think the criticism of R v Caldwell expressed by academics, judges and
practitioners should be ignored. A decision is not, of course, to be overruled or departed
from simply because it meets with disfavour in the learned journals. But a decision which
attracts reasoned and outspoken criticism by the leading scholars of the day, respected as
authorities in the field, must command attention.

Fourthly, the majority’s interpretation of ‘reckless’ in s 1 of the 1971 Act was, as already
shown, a misinterpretation. If it were a misinterpretation that offended no principle and
gave rise to no injustice there would be strong grounds for holding to the misinterpretation
and leaving Parliament to correct it if it chose. But this misinterpretation is offensive to
principle and is apt to cause injustice. That being so, the need to correct the
misinterpretation is compelling

CONCLUSION ON CALDWELL

The surest test of a new legal rule is not whether it satisfies a team of logicians but how it
performs in the real world. With the benefit of perception the verdict must be that the rule
laid down by the majority in R v Caldwell failed this test. It was severely criticised by
academic lawyers of distinction. It did not command respect among practitioners and
judges. Jurors found it difficult to understand: it also sometimes offended their sense of
justice. Experience suggests that in R v Caldwell the law took a wrong turn.

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That brings the question whether the subjective interpretation of recklessness might allow
wrongdoers who ought to be convicted of serious crime to escape conviction. Experience
before R v Caldwell did not warrant such a conclusion. In any event, as Lord Edmund-
Davies explained, a defendant closes his mind to a risk he must realise that there is a risk
and, on the evidence, that will usually be decisive. One can trust the realism of trial judges,
who direct juries, to guide juries to sensible verdicts and juries can in turn be relied on to
apply robust common sense to the evaluation of ridiculous defences.

i. What are the justifications for this subjective approach?

The justifications for the advertent definition or recklessness are grounded in the principle
of individual autonomy and the importance of respecting choice. The distinction between
recklessness and negligence turns on D’s awareness or unawareness of the risk. In both
cases there is an unreasonable risk taken, but D should only be held to have been reckless
if he or she was aware of the risk. A person who is aware of the risk usually chooses to
create it or to run it, and therefore chooses to place his or her interests above the well-
being of those who may suffer if the risk materializes. Choosing to create a risk of harmful
consequences is generally much worse than creating the same risk without realizing it.

The House of Lords affirmed its fidelity to the principles of Subjectivism. The
Objective approach was criticized for being ‘capable of lading to obvious unfairness’
it is neither moral nor just to convict a Defendant on the strength of what someone
else would have apprehended – specially in relation to the young – Lord Steyn (UN
Convention – Rights of a Child)