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Cases - mens rea - cases doubted by R v G and another 2003

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The case of R v G and another [2003] HL (known as R v Gemmel and Richards [2002] CA in the Court of Appeal) has effectively ruled out the use of objective recklessness for crimes of Criminal Damage.

The previous test of recklessness (Caldwell) has produced much adverse comments from academics and judges, and as a test for recklessness it will not be mourned.


It is expected that the Caldwell test will be reviewed in other cases, for example motoring matters, where the Caldwell test of recklessness appears still to apply.


Furthermore, the test in gross negligence manslaughter has a reckless element and it remains to be seen whether it survives the changes brought about by R v G.


G and another, R v [2003] HL

Red Triangle - important information

Whole case, here

[Criminal damage - recklessness is objective]

DD aged 11 and 12 went camping without their parents approval. They went to the back of the Co-op in Newport Pagnell, lit some newspapers which set fire to a wheelie-bin which set fire to the shop, cause £1m of damage. They were convicted of arson by a jury. Both the judge and jury appear to have been not content with applying the objective approach that the law required in R v Caldwell (1982) HL.

Held: Unanimously, Caldwell was wrongly decided, the test of recklessness was found in the preparatory work of the Law Commission prior to the Criminal Damage Act 1971.
The test now is:

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to -
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk."
(Based on clause 18(c) of the Criminal Code Bill annexed by the Law Commission to its Report “A Criminal Code for England and Wales Volume 1: Report and Draft Criminal Code Bill” (Law Com No 177, April 1989))

Not guilty of arson (criminal damage by fire)


Adomako, R v (1994) HL

Red triangle indicating important information

[Mens rea - recklessness – limiting the use of recklessness to criminal damage]
D, an anaesthetist, failed to observe during an eye operation that the tube inserted in V"s mouth had become detached from the ventilator, causing V to suffer a cardiac arrest and eventually die.

Held: D was guilty of manslaughter by gross negligence, which is established where D breached a duty of care towards V that caused V"s death and that amounted to gross negligence.
Lord MacKay LC:

"gross negligence depends on the seriousness of the breach of the duty committed by the defendant in all the circumstances in which he was placed when it occurred and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury's judgment to a criminal act or omission".

Note The House of Lords overruled Seymour (1983), thereby leaving only criminal damage to be tested by Caldwell recklessness.

Caldwell, R v (1982) HL


Red Triangle - important information

Overruled by R v G and another (2003) HL

[Criminal damage - recklessness - the test for Criminal Damage is always objective recklessness - intoxication no defence]

D set fire by night to a residential hotel where he had been employed. He bore a grudge against the proprietor.
According to his evidence he was so drunk at the time that it did not occur to him that there might be people there whose lives might be endangered.
Held: Recklessness in the context of Criminal Damage does not require subjective appreciation of the risk of causing damage, but is also satisfied by a failure to consider an obvious risk.

The risk need only be obvious in the sense that it would have been obvious to the reasonable man, not to the accused if he or she had stopped to think Elliott v C [1983] nor to a person of the age of the accused or sharing the accused’s characteristics R (Stephen Malcolm) (1984); R v Miller [1983]. These cases were confirmed and followed in R v Coles [1995].


Lord Diplock:
It is unnecessary to classify the offence as one of specific or basic intent, since, as far as recklessness is concerned, evidence of intoxication is logically irrelevant and therefore no defence anyway.

Elliott v C [1983] QBD


[Criminal Damage – Caldwell objective recklessness]
D was a 14-year-old girl who was a little backward.  She had stayed out all night without sleep in a garden shed. In order to keep warm, she poured white spirit onto the floor of the garden shed and set fire to it. The shed was destroyed and D was charged with criminal damage. The trial judge acquitted D because he ruled that the risk of damage would not have been obvious to D as a mentally subnormal, exhausted 14-year-old girl.


Held: If the risk of damage was obvious to a reasonable prudent man, even though D had not thought of it, and even if, by reason of a lack of understanding, experience or exhaustion, it would never have been obvious to D, D is still reckless.


D"s acquittal was ruled to be wrong.

Lawrence, R v (1982) HL

Red triangle indicating important information


[Mens rea - objective recklessness]
D, driving a motorcycle, collided with a pedestrian and killed her. D was driving at 77 mph in a built up area. The prosecution claimed that this speed was grossly excessive and that D was therefore reckless. D was convicted of causing death by reckless driving.

Held: Driving recklessly involved driving in a manner that creates an obvious and serious risk of injury or damage to property. The jury must decide whether the risk created by D"s driving was both obvious and serious by the standards of the ordinary and prudent motorist.

D"s acquittal was ruled to be wrong.
Note there is no crime now of death by reckless driving

Parker, R v (1977) CA


[Mens rea - objective recklessness]
D ineffectually tried to make a telephone call in a public telephone kiosk. He lost his temper and slammed the receiver down. The telephone was made of breakable material and was damaged by D"s actions.

Held: Lane LJ:

"If the defendant did not know that there was some risk of damage, he was, in effect, deliberately closing his mind to the obvious - the obvious being that damage in these circumstances was inevitable. In the view of this court, that type of action, that type of deliberate closing of the mind, is the equivalent of knowledge."


R v R (Stephen Malcolm) (1984) CA

[Mens rea - recklessness - Criminal Damage cases require the Caldwell test]
D aged 15 caused criminal damage with intent to endanger life when he threw a petrol bomb near a girl"s bedroom window, not realising it might kill the girl if it went inside.

Held: The proper test of recklessness - in Criminal Damage cases - does not include a risk obvious to "someone of his age and with such of his characteristics as would affect his appreciation of the risk"..
In other words, the test is not the subjective [Cunningham] test of recklessness but the objective [Caldwell] test.


Shimmen, Chief Constable of Avon and Somerset Constabulary v (1986) QBD

[Mens rea - objective recklessness – the Caldwell Lacuna]
D kicked at a window and broke it. He was a martial arts expert. To show off his expertise he kicked towards a plate glass window, claiming that he thought he could control his foot and narrowly avoid breaking the window.
The magistrates ruled that D fell between the two parts of the Caldwell test: he did give thought to the possibility of a risk but mistakenly thought there was no risk or took steps to eliminate the risk.

Held: D did not fall within any "lacuna". D did recognise a risk and thought he had eliminated most of it.

However, he recognised that there was still some risk and went on to take that risk, albeit minimal.

Therefore, unless D believes he has eliminated all of the risk, he does not fall into any "lacuna".

The evidence did not show that the accused had ruled out all the risk (hence he was still reckless in consciously running a small risk).

Appears the risk must be totally ruled out. which is akin to the court saying that mistaken beliefs have to be held with a degree of conviction equal to certainty and admitting of no doubts.


Also here

Stephenson, R v (1979) CA


[Mens rea - recklessness in Criminal Damage]
D caused damage to a haystack. He crawled into the haystack to sleep. To keep warm he lit a fire that destroyed the haystack. D was known to be suffering from schizophrenia.

Held: The word "reckless" required that D must actually have foreseen the risk of damage resulting from his actions and nevertheless ran the risk. D, through no fault of his own, was incapable of appreciating the risk because of his mental condition.

Not guilty
This was overruled by Caldwell


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