HOLWELL SECURITIES v HUGHES

Conveyance of property and the requisite methods of notice when accepting an offer are clearly defined under section 196 of the Law of Property Act 1925, so when a buyer elected to take advantage of an option to purchase, they did so in a way that flirted with the prescribed method yet failed to secure the bargain, despite arguments to the contrary.

Having decided to sell his home, the respondent wrote to the appellants setting out an option to purchase, which expired within a six-month period, while the specific terms of the offer outlined in clause 2, stated clearly that:

“The said option shall be exercisable by notice in writing to the intending vendor at any time within six months from the date hereof…”

Contrastingly, section 196(4) of the Law of Property Act 1925, also explains that:

“Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

Law of Property Act 1925

And so, on this occasion the appellants solicitors drafted a written acceptance of the offer, before hand delivering it to the respondent’s solicitors, while noting within the correspondence that a copy of the written notice of acceptance and a deposit cheque had also been posted to the respondent’s home. 

After receiving the letter, the solicitors telephoned the respondent to advise him they had received the notice and that a copy of it was on its way to him, whereupon he explained that he had already made travel plans; and so, having been instructed by his solicitors to leave despite the expected letter, he vacated his home for a number of days.

After being franked and handed to the post-office, the letter failed to arrive at the respondent’s home; hence, the appellants sought legal action to secure the property, on grounds that a contract for both sale and purchase had been executed, irrespective of whether the posted letter had arrived, while it was also argued that the oral communication between the solicitors and the respondent further confirmed acceptance of the offer, when factoring in the solicitors possession of the letter.

In the first instance, the appellants relied upon Henthorn v Fraser; in which, the Court of Appeal held that:

“Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted.”

Henthorn v Fraser

However, the court ruled against them, before the Court of Appeal overruled and distinguished Henthorn in light of an absence of expressed postal methods expressed within the purchase option.

And so, dismissing the appeal on grounds that failure of the respondent to physically take receipt and read the notice became fatal to any claim of right to buy, the court reminded the parties that:

“If a notice is to be of any value it must be an intimation to someone. A notice which cannot impinge on anyone’s mind is not functioning as such.”

ESSO PETROLEUM v MARDON

Prior to the Misrepresentation Act 1967 ,many cases involving mistruths and false inducements relied upon rules of collateral warranty and negligent misrepresentation to establish liability; however, on this occasion an international oil company was betrayed by their own haste when attempting to victimise a willing, but inexperienced employee.

In 1961, the cross-appellants looked to construct a new filling station within the busy streets of Southport; and so, having established the location and calculated the potential value of business, it was agreed that once opened, the station could very well expect to turnover around 200,000 gallons of petrol per year within its first three years of trading. 

With such positive projections, the cross-appellants purchased the site and began work; however, during the planning permission stage they were delivered an unexpected blow when the local authority expressed that the petrol pumps were not permitted to face the road, but were instead to be positioned at the rear of the building.

This unexpected design change heavily reduced their previous calculations; however, undeterred they sought to recruit a leaseholder for the site; and so, after a successful interview, the appellant was conditionally offered the post, while subject to rents based upon the now unrealistic sales volumes.

However, during his interview the appellant queried the figures presented, while the cross-appellants argued there was no cause for concern and that the original projections remained reliable.

Despite his concerns, the appellant accepted the position, before working tirelessly for two years, until faced with financial ruin after losing money from the severely reduced sales, considerable personal investment and a sizeable overdraft no longer repayable, he approached the cross-appellants with every intention to quit; whereupon, they agreed to reduce the rent and offer bonus payments from the sale of petrol in order to offset his losses. 

As an act of continued faith, the appellant agreed to honour a twelve-month contract; however, his circumstances continued to deteriorate; and despite the cross-appellants offering him a more profitable station, their support diminished until the arrangement became unsustainable; and yet, in 1966, the cross-appellants issued a writ for non-payment of petrol supplied during their working relationship.

Naturally shocked and angered, the appellant counter-claimed for damages caused through the loss of earnings, damage to his health, lost opportunities through his efforts to make the site a success, breach of warranty through the misleading statements made in relation to sales turnover, negligent misrepresentation and the inducement to take employment where the outcome was never going to be the one presented during his interview.

In the first instance, the Court of the Queen’s Bench held that the cross-appellants comments were tantamount to opinions and not warranties, but that the claim for negligent misrepresentation was enforceable until the date of the revised employment contract in 1964.

In the Court of Appeal, the appellant relied upon Hedley Byrne & Co Ltd v Heller & Partners Ltd; in which, the House of Lords held that:

“[I]f someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference.”

Hedley Byrne & Co Ltd v Heller & Partners Ltd

And so, having examined the finer points of collateral warranty and the limitations of contractual breaches, the Court unanimously upheld the appeal, on grounds that the flow of damages were unmistakably linked to the claims made; and that remoteness could not stand when factoring in the sources of revenue used by the appellant when trying so hard to keep the station afloat, while finally clarifying that:

“[I]f a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another be it advice, information or opinion with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable.”

WHEELDON v BURROWS

Derogation from grant’ and the conclusive nature of conveyances were judicially clarified when a landowner divided his estate into two distinct plots, before individually auctioning them to separate purchasers under identical contracts; whereupon, litigation commenced over their right to enjoy both privacy and right to light.

With a brick wall dividing the two plots, the second sale left the respondent with a brick building situated fairly close to the wall with three windows facing the first plot but with  space enough to allow natural light to pass through them, and while both contracts mirrored one another, neither included any express reservations aside from a vague stipulation that the first lot was subject to a favourable right for the purchasers and occupiers of the second plot for a indeterminable period.

Roughly five years later, the appellant erected a fence obscuring the respondent’s view when using his workshop, which prompted his demolition of the obstruction on principle that when taking ownership of the property, it was under an implied easement inherited from the vendor and therefore lawfully enforceable; however, this resulted in litigation; in which, the court noted how the vendor had failed to include any express reservation to the two parties; and so, awarded in favour of the appellant and ordered an injunction to prevent further trespasses.

Challenged in the Court of Appeal, the Court merely upheld the previous judgment on grounds that should English law adopt a view that implied rights and reservations were automatic to a conveyance, the rights of ownership and peaceful use and enjoyment of land would be violated beyond all reason, while reminding the parties that:

“[N]o implication can be made of a reservation of an easement to the grantor, although there may be an implication of a grant to the grantee.”

TOMLINSON v CONGLETON BOROUGH COUNCIL

Reckless endangerment and the scope of relevant statute, prove the nucleus of a case where the civil liberties of the general public and a local authority’s duty of care ran risk of judicial pollution when a life-altering injury led to a damages claim.

Purpose-built from derelict land, the 14-acre Brereton Heath Country Park was home to a popular lake known as the ‘mere’, and although the appeal of the lake drew over 160,000 visitors a year, the controlling borough and local authorities had prohibited swimming through the presence of warning signs, leaflet distribution, lifebelts, throwing lines and constant supervision by park rangers, despite flagrant ignorance by the a majority of the attending public.

Unfortunately, on this occasion the 18 year-old respondent elected to stand in little over two feet of water before proceeding to dive in, whereupon he struck his head on the sandy bottom and broke the fifth vertebrae in his neck.

Now facing life as a tetraplegic, the respondent sought damages from the local authority under the Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984 on grounds that a duty of care was owed as both a trespasser and park visitor.

For clarity section 2(2) of the 1957 Act stated that:

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

Occupiers’ Liability Act 1957

While s.2(4) explained that:

“In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe…”

Occupiers’ Liability Act 1957

However, in 1976 the Law Commission gave recommendation to a statutory duty of care for trespassers as was given effect in section 1(1) of the 1984 Act s.1(1) while sections 1(5) and 1(6) further read that:

“(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

Occupiers’ Liability Act 1984

This translated that where no award was found under the first Act, then the same would apply by extension to the second, while leading authority for the conversion from visitor to trespasser was found in Hillen v ICI (Alkali) Ltd; in which, the House of Lords had held that:

“So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.”

Hillen v ICI (Akali) Ltd

And so, given the fact that swimming was overtly and historically prohibited, the respondent sought remedy as a trespasser with claims that the water had muddied his view of the bottom, whereupon mention was made to Whyte v Redland Aggregates Ltdin which the Court of Appeal had explained that:

“[T]he occupier of land containing or bordered by the river, the seashore, the pond or the gravel pit, does not have to warn of uneven surfaces below the water. Such surfaces are by their nature quite likely to be uneven. Diving where you cannot see the bottom clearly enough to know that it is safe to dive is dangerous unless you have made sure, by reconnaissance or otherwise, that the diving is safe, ie, that there is adequate depth at the place where you choose to dive. In those circumstances, the dangers of there being an uneven surface in an area where you cannot plainly see the bottom are too plain to require a specific warning and, accordingly, there is no such duty to warn…”

Whyte v Redland Aggregates Ltd

In the first instance, the judge held that the lake simply wasn’t dangerous enough to warrant local authority liability; and so, dismissed the claim, before the Court of Appeal extended the occupiers liability beyond one of reasonable limits and awarded damages.

However, under challenge the House of Lords fully considered the accountability of the respondent, before reversing the previous judgment and restoring the original findings  on grounds that the principle that individual risk-taking in the knowledge of visible danger was incumbent upon the owner, was counter-productive inasmuch as failure to acknowledge warnings was not a precursor for liability when the claimant suffers harm, whereupon the House reminded the parties that:

“[L]ocal authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers.”

COUNCIL OF CIVIL SERVICE UNIONS v MINISTER FOR THE CIVIL SERVICE

Executive powers and national security form the footing of this call for judicial review under the argument that changes to civil servant working conditions were executed without due consideration of those affected.

In a relationship with a chequered history, it was decided by the Minister of the Civil Service (aka Prime Minister Mrs Thatcher) that since the previous strike actions of key staff within the Government Communications Headquarters (GCHQ) had proven destructive, it was necessary to execute instructions to ban any affiliation by government employees with trade unions of any sort.

While this unprecedented move was carried out under legitimate sovereign powers, it directly conflicted with the principle that governmental decisions were first offered to consultation with the trade unions as an inherent duty to exercise fairness when carrying out executive function.

On this occasion, the instructions were carried out under article 4 of the Civil Service Order 1982, but orally released within the House of Commons; and so greeted with natural anger and confusion, while the aim of this sudden prohibition was simply to circumvent open discussion in lieu of avoiding future strike actions now considered a significant threat to national security.

When heard at court level, the presiding judge had held that the instructions were issued on grounds demonstrating no effort toward consultation and were therefore invalid in their application.

Under challenge, the Court of Appeal had held that the executive action itself was not exempt from judicial review because the order came from prerogative powers rather than statute, and that despite the latter source forming the premise for most reviews, the Court saw no distinction between a self-executed order and that of an act of Parliament.

In response, the defence used by the Minister for the Civil Service relied upon operational safety measures, and how under those circumstances it was felt that the same people responsible for the previous compromises were right to be excluded from using consultation as leverage to create further damage; while it was further argued that any discussions between trade unions and Government would have amounted to the same outcome, regardless of protests by those affected. 

This position was further supported by the fact that sections (a) and (a)(ii) of article 4 of the Order in Council 1982 allowed the Minister to create regulations controlling the conduct of those employed, therefore denial of trade union membership lawfully fell within those remits.

When the Court upheld the Minister’s actions, the appellants pressed the issue, whereupon the House of Lords sought to establish whether judicial review was necessary, and whether the respondents had acted in manner that precluded fairness and a duty to follow precedent.

After which it was held that while the avoidance of discussion demonstrated a clear breach of that duty, it was not the responsibility of the courts to determine what constituted a threat to national security; and that the executive itself was empowered to prove or disprove itself as to its own actions; all of which, led the House to conclude that:

“[W]here a question as to the interest of national security arises in judicial proceedings the court has to act on evidence.”

FOSTER v BRITISH GAS

In the same way that Marshall v Southampton and South West Area Health Authority [No.1] determined the rights of female employees under the protections of Directive 76/207/EEC, this class action matter extended its scope to allow damages for dismissal under the guise of retirement.

When six former workers were subjected to forced retirement at the age of sixty, they sought remedy through the industrial tribunals on grounds that the respondent had violated its obligation to observe the Directive’s principles of equality; and so, they were entitled to compensatory payment in lieu of their significant financial losses.

In the first instance, the appellants claims were dismissed on the strength that since 1986, the British Gas Corporation had become a private entity and therefore fell beyond the scope of the Directive, while a subsequent appeal to both the Employment Appeal Tribunal and the Court of Appeal proved futile.

Undeterred, the appellants presented their case to the House of Lords, who sought a preliminary ruling from the European Court of Justice under article 177 EC, whereupon two questions asked: 

1. Whether the manifestation of British Gas Plc (at the time of the claim) was within the terms of the meaning “state”? 

2. And if so, what form the award might take? 

Having evaluated the facts, the House held that when Directive 76/207/EEC first came into force, it was ignored by the United Kingdom and subsequently failed to become part of domestic legislation within the provided timeframe; therefore, the respondents were state owned and subject to the terms of the Gas Act 1972, while the state’s failure to transpose the terms of the Directive left it open to the Community law doctrine that ‘no state can profit from its own failure’.

This resulted in a judgment for the appellants, on grounds that the terms of the Directive were fully applicable to the respondents as they qualified as an emanation of the state and were subject to the effects provided under it, while the Court also reminded the parties that:

“[T]he State may not benefit from its default in respect of anything that lies within the sphere of responsibility which by its own free choice it has taken upon itself, irrespective of the person through whom that responsibility is exercised.”

CILFIT AND LANIFICIO DI GAVARDO SpA v MINISTRY OF HEALTH

Member State compliance with Community law is brought into question, after an Italian national court sought to address their Ministry for Health’s contention that domestic laws precluded a right to claim, and that no regulatory terms could provide a different outcome.

When a claim was made by a number of textile firms against the excessive taxation of imported wool, they relied upon the powers conferred by Regulation 827/68/EEC ; and not the discriminatory rules set down under the national powers of Law No.30, which had forced companies to pay levies ten times the amount intended prior to a later amendment under Law No. 1239.

In the first instance, the claimants were denied a right to recover in the Tribunal di Roma (District Court), on grounds that the adoption of Regulation 827/68/EEC had excluded wool, while the Corte d’Appello (Court of Appeal) also rejected the claim, before they appealed to the Court of Cassation, whereupon the Ministry of Health cross-appealed in an attempt to persuade the Court to decide the outcome without seeking a preliminary ruling under article 177 EC.

Here, the Court interpreted that by virtue of the fact that the Ministry of Health argued against a consultation with the European Court of Justice, there must be a degree of uncertainty as to the effect of Regulation 827/68/EEC, and while national legislation failed to provide an immediate remedy, such a duty existed nonetheless. 

Thus, in accordance with its perceived obligations, the Court of Cassation asked:

1. Whether under such circumstances paragraph 3 of article 177 EC required the national courts (or courts of first instance) to seek a preliminary ruling where uncertainty or doubt as to the interpretation of a Regulation existed?

Having evaluated the intentions and possible variances of article 177 EC, it was agreed by the European Court of Justice that while certain discretions were provided for when adopting and applying the terms of Community law, the obligation to seek a preliminary ruling was one designed to establish clarity. 

This translated that even if the questions arose from claimants, government or the courts themselves, it was important that the courts looked at the complexity of the doubt and sought (where relevant) the assistance of the European Court of Justice, in order that the effect of the Regulation or Directive was properly established, while the Court further reminded the parties that:

A uniform interpretation of Community law by the Court is objectively in the public interest, which may not be subordinated to the existence or otherwise of agreement between the national courts in the previous stages of an action or to the assent or dissent of the parties.”

COURAGE LTD v CREHAN

Under English law, the courts refuse to endorse a claim for damages when the claimant was a party to a contract borne from illegal principles, while this is echoed in equity under the maxim ‘he who comes to equity must come with clean hands’; and so, reminds those considering such arrangements that they do so without the aid of the judiciary.

However, in this matter the claimant was a party to a publican agreement drawn up through the merger of a large brewery and owners of a number of public houses across the United Kingdom, while as part of this agreement, the claimant brewery contracted to supply beer to existing tenants (publicans) under a non-negotiable tariff purportedly designed to protect the interests and profits of those purchasing; and yet, after the tenant had somehow amassed a debt of around £15,000, the brewery sought recovery through the courts.

Having previously discovered that the brewery was supplying the same beers for lower prices to non-contracted third parties, it was then counter-claimed that the agreement demonstrated a breach of article 85 EC (formerly article 81 EC), therefore damages were owed and no payment for previously provided beer was due.

After the case reached the Court of Appeal, it was decided that due to the conflict between national and Community law, a preliminary ruling to the European Court of Justice under article 234 EC needed to confirm: 

1. Whether art.85 EC allowed a party to a prohibited agreement to claim damages?

2. Whether a party can claim when relying upon their own adherence to the agreement?

3. Whether a national law preventing recovery under prohibited agreements remained consistent with Community law?

4. Where deemed incompatible which situations allowed national law to apply?

Having evaluated the aims of national law and the claim’s validity, it was agreed that while those contracting in the distortion of fair competition are themselves contributors to their own demise, there are certain scenarios demonstrating an inequality of bargaining power, and thus grounds for reconsideration. 

Here, the Court noted how in this instance the tenant was subjected to the terms of the agreement with little to no room for bargain; and so, while it was agreed that the terms of article 85 EC precluded claims of that nature, it did so on the proviso that the claimant was proportionately liable for any market distortion, while it was also clear that where no such arrangement existed, the effects of article 85 EC (which provided for direct effect and application between individuals) were sufficient enough to allow for a claim, despite  any objections raised under English law, while reminding the parties that:

“[C]ommunity law precludes a rule of national law which prevents a party subject to a clause in a contract which infringes Article 81 EC from recovering damages for the loss suffered by it on the sole ground that it is a party to that contract.”

MARSHALL v SOUTHAMPTON AND SOUTH WEST AREA HEALTH AUTHORITY NO.1

Dismissal upon grounds of sexual discrimination and the direct effect of Community law Directives in issues of state employment, were the key ingredients to this matter, when a former employee of the South-West Hampshire Area Health Authority was subjected to unexpected termination of her employment, despite intimations that her post was secure beyond policy requirements.

Having joined the department in 1974, the applicant had enjoyed working as a Senior Dietician, until she reached the contracted retirement age (five years earlier than her male colleagues); at which point, it was agreed that she could continue working, although no specific end date was discussed.

However, the applicant was dismissed without notice two years later, upon grounds that she was a woman; and so, considered beyond retirement age and surplus to requirements.

Immediately after her departure, the applicant sought to challenge the decision through the enforcement of Council Directive 76/207/EEC, which supports the ‘principle of equal treatment’, inasmuch as article 1(1), (2), 2(1) and 5 collectively confer Member State obligations to apply and maintain the equal treatment of men and women with regard to employment, promotion, training, working conditions, social security, dismissal and the prohibition of any discrimination (whether directly or indirectly), while these rights applied to all manner of employment arrangements.

In the first instance, the industrial tribunal denied her claim under the section 6(4) of the Sex Discrimination Act 1975, which provided that discrimination by an employer was exempt under retirement conditions, and that the pensionable age of women under section 27(1) of the Social Security Act 1975 supported the age of retirement through the  availability of state pensions as of sixty years of age. 

Upon dismissal of her appeal, she challenged the findings again, whereupon the Court of Appeal was forced to raise two questions with a view to a preliminary ruling under article 177 EC, namely: 

1. Whether the appellant’s dismissal after reaching retirement age on the basis that she was a woman constituted sexual discrimination under Directive 76/207?

2. That if so agreed, whether the terms of the Directive allowed for direct effect given the conflict between domestic legislation and Community law?

And so, having referred the case to the European Court of Justice, it was held that while the Health Authority relied upon the narrowness of meaning when determining the powers of legislation, they failed to appreciate that all Member States are obliged to adopt the principles of a Directive within a designated period (which on this occasion had long since elapsed); and that when doing so, must adjust or if necessary, remove the applicable statute to give full effect to the meaning of the Directive. 

It was further noted how the Health Authority had sought to avoid the duties called for under Community law, while expanding the terms of the Social Security Act 1975 beyond their meaning when deciding that pensionable age was a prerequisite to retirement, which amounted to nothing more than overt sexual discrimination; against which, the appellant had a valid and lawful right of claim.

Looking next to the effect of Directive 76/207/EEC, it was argued by the Health Authority and the United Kingdom that the terms within were prescribed for the benefit or use of the Member State and not the individual, and that the terms of an non-implemented Directive excluded contracts between private parties. 

It was further argued that the State was entitled to be seen as a private employer for the purposes of the case, thus it was contended that the appellant was denied the right to bring action against the State; and so, a review of the Sex Discrimination Act 1975 was required before the continuation of proceedings. 

In stark contrast, the Court upheld the appeal, on grounds that a failure to adopt the Directive had rendered the Health Authority liable for penalty and thereby accountable at law as an emanation of the State, therefore a citizen could claim such rights within the domestic court in lieu of their non-implementation, before reminding the parties that:

“[W]herever the provisions of a Directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where that State fails to implement the Directive in national law by the end of the period prescribed or where it fails to implement the Directive correctly.”

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.

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