R v G

Reckless culpability and the innocence of youth, cross swords in a case that both rewrote the powers of legislation and allowed subjective reasoning to prevail, after two young boys aged just eleven and twelve spent the night outside, before playing in the rear storage yard of a Co-operative store.

What began as tomfoolery with matches and newspaper, wound up as criminal damage and arson totalling over £1m in damages; however, with equal consideration of English criminal law and precedent relating to the facts, it also became a matter destined to reach the House of Lords.

Having decided to camp out underneath the stars, the two appellants trespassed into the refuse area of the store and began reading discarded newspapers; after which, they set alight to a bundle of newspapers, before placing them beneath a large plastic dustbin. Without staying to watch the flames extinguish, the defendants later left the yard and presumably returned home. 

Unfortunately, as is the nature of fire, the flames ignited the bin, which subsequently ignited the adjacent bin, until the fire spread to the roof and beyond; and so, when first heard at trial, the judge rightly relied upon the exacting terms of section 1(1) of the Criminal Damage Act 1971, which reads that:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an off­ence.”

Criminal Damage Act 1971

While the term ‘reckless’ remains subjectively difficult to ascertain, the application of this measure failed to discriminate between the range of comprehension created through age, disability, or intelligence.

This absence of evaluation forced the jury to determine the boys’ guilt on the objective reasoning of an adult, as established in R v Caldwell and earlier in R v Cunningham (albeit a case more reliant upon maliciousness than ignorance).

In Caldwell, the defendant had been intoxicated prior to choosing to set fire to his employer’s hotel, thereby putting the guests and staff in great danger, while noting that he had paid little mind to the consequences when starting the fire; hence, it was this case that led to an objective reasoning test that whilst applicable to most mature adults, offered little consideration for children or vulnerable adults in similar circumstances.

Having deliberated on the certainty of a fair conviction, the judge and jury were left finding guilt, although not without concern for the limitations of the  1971 Act; and so, with their challenge dismissed by the Court of Appeal, the appellants were granted leave to present to the House of Lords, where greater attention was placed upon the disparity of the Criminal Law Act 1977 and article 40(1) of the European Convention on Human Rights (Public hearings and access to documents), which expressed that:

“States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

European Convention on Human Rights

It was then with appreciation of the narrowness that recklessness previously enjoyed, that the House examined the relevance of continuing to broaden the scope of reckless behaviour, in order to avoid the need for deliberate and considered forethought to the mindset of those accused.

Upon revisitation of the case history preceding the Criminal Damage Act 1971, it became clear that overlooking the objective test had prevented fair and reasoned judgment; and that this particular case was the perfect vehicle upon which to amend that error, thus the House (by majority) declared the boys’ innocence and upheld the appeal, while clarifying that:

“[I]f the law is to operate with the concept of recklessness, then it may properly treat as reckless the man who acts without even troubling to give his mind to a risk that would have been obvious to him if he had thought about it.”

For further reading around both this case and a brief history of recklessness, please read the paper below.

R v STEPHENSON

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.”

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