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Crime XII - Mens rea VIII - Recklessness I

Updated on August 13, 2017

Recklessness in crime is defined as a careless act or an act committed with wanton disregard without showing any care or concern for the safety of others and puts the life of another at risk on in danger. The law on recklessness is divided into the law prior to R v Caldwell (1982) and the law post R v Caldwell (1982).

In R v Cunningham (195I), 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.

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 i.e. the jury should have been directed to look at the defendant’s state of mind at the time he committed the crime.

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 indicted 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.

The test in Caldwell however leans more towards the objective test or the reasonable man’s test and that tends to broaden the scope of liability and while a reasonable man may have foreseen that his act may have led to some damage or other, more often than not, crimes are not committed by reasonable people and often many of the perpetrators suffer from some form of physical or mental ailment like in the case of R v Stephenson (1979) or do not have the capacity to reason like normal, ordinary people.

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 judge 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.”

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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