Subjective ‘recklessness’ and the complexities of mental illness, are given equal weight when a charge of arson is levelled against a man who while apologetic for his actions, was astute enough to undertake, and become convicted of burglary, an act which in itself paradoxically requires a degree of foreseeability.
In the winter of 1977, the appellant trespassed upon farmland before climbing into a large straw stack to fall asleep. Suffering from the cold, the appellant decided to use the straw to build a small fire from which to keep warm.
Unfortunately the fire quickly spread, before catching light to a Nissen hut containing farming equipment, resulting in damages of around £3,500.
Having fled the scene, he was later arrested, whereupon he immediately apologised and explained that the whole incident was an accident, and that he never intended to cause such destruction.
When indicted, he was charged with burglary under section 9(1) of the Theft Act 1968 and arson under section 1(1)(3) of the Criminal Damage Act 1971, yet at trial, the appellant failed to give any evidence aside from the medical testimony of a consultant psychiatrist, who confirmed that the appellant was suffering form schizophrenia, and as such, was unable to appreciate the obvious risks attached to starting a fire in such a hazardous environment.
When directing the jury, the judge used the phrase:
“[A] man is reckless if he realises that there is a risk, but nevertheless presses on regardless.”
While reiterating the words of the Appeal Court in an earlier case, which were:
“A man is reckless in the sense required (that is to say, in the sense which leads to conviction) when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act, but nevertheless continuing in the performance of that act.”
At which point, the jury returned a guilty verdict on both counts, whereupon the appellant took issue in the Court of Appeal on grounds of severe misdirection when applying the subjective principle of recklessness. Here, the definition of recklessness in R v Briggs was held as being that:
“A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act.”R v Briggs
While in the Law Commission Working Paper No.31 (Codification of the Criminal Law: General Principles. The Mental Element in Crime) it was explained how:
“A person is reckless if, (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.”
Perhaps more importantly, the root definition of recklessness was outlined by Donovan J in R v Bates, when he said:
“The ordinary meaning of the word ‘reckless’ in the English language is ‘careless,’ ‘heedless,’ ‘inattentive to duty.’ Literally, of course, it means ‘without reck.’ ‘Reck’ is simply an old English word, now, perhaps, obsolete, meaning ‘heed,’ ‘concern,’ or ‘care.’”R v Bates
Contrastingly, in Shawinigan Ltd v Vokins & Co Ltd the objective purpose of recklessness was defined by Megaw J who said:
“In my view, ‘reckless’ means grossly careless. Recklessness is gross carelessness – the doing of something which in fact involves a risk, whether the doer realises it or not; and the risk being such, having regard to all the circumstances, that the taking of that risk would be described as ‘reckless.’”Shawinigan Ltd v Vokins & Co Ltd
Yet, in the House of Lords, Salmon J had recently promoted the subjective definition in Herrington v British Railways Board when he explained how:
“Recklessness has, in my opinion, a subjective meaning: it implies culpability. An action which would be reckless if done by a man with adequate knowledge, skill or resources might not be reckless if done by a man with less appreciation of or ability to deal with the situation.”Herrington v British Railways Board
And so, it was with full consideration of the effects and medico-legal opinion of schizophrenia, coupled with the perhaps ironically unstable history behind ‘recklessness’, that the Court found the arson conviction unsafe when knowing the jury were unable to wholly determine the mental limitations of the appellant.
It was therefore on that basis that the burglary charge remained valid, while the arson charge was quashed on principles of natural justice, while the Court reminded the parties that:
“A man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act. It is however not the taking of every risk which could properly be classed as reckless. The risk must be one which it is in all the circumstances unreasonable for him to take.”