R v Stephenson (1979)

English Criminal Law

R v Stephenson
‘The Hay Bales’ by Roger Bansemer

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 s.9(1) of the Theft Act 1968 and arson under s.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.”

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.’”

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.’”

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.”

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.

R v Miller (1983)

English Criminal Law

R v Miller
‘Carrying Mattresses’ by Stanley Spencer

Actus reus and mens rea, are two very widely used criminal law maxims that once were essential for the clarification of intention, but sadly over the passage of time, the former has become victim to legal abuses by lawyers seeking to bend a virtue that perhaps warrants review after hundreds of years of application.

In this matter, the accused was a homeless man, who after drinking a reasonable amount of alcohol, entered a vacant home, before taking up occupancy in an empty room. After lighting a cigarette, he then fell asleep on a mattress, at which point the cigarette began to ignite the mattress fibres, thereby causing it to slowly smoulder.

Upon waking, the appellant saw what was happening, but chose to simply get up from the mattress and walk into an adjacent room, before returning to sleep. It was not until the arrival of the local fire brigade, that he awoke again to discover that the room he had since left was now ablaze, and that significant fire damage had resulted from his failure to extinguish the burning mattress.

Upon summary, the appellant stood accused of recklessness causing criminal damage to another’s property, that in turn led to a conviction of arson under s.1(1)(3) of the Criminal Damage Act 1971. While under appeal, it was argued that both mens rea and actus reus are key elements to a criminal conviction, and that because the appellant had left the room, he could not be found liable through inaction, as opposed to action (actus reus), while further arguing that he was under no obligation to extinguish the burning mattress, and that his mens rea was ultimately irrelevant to the proceeding fire.

The crux of this defence misdirection is that while actus reus explores the actions of a defendant, the reality of life is that inaction by its own virtue, is an equally destructive process when the party in question can see very clearly that it was his previous actions that initiated the root offence, and that there were sufficient steps available to the defendant to prevent the damage from spreading (including seeking the assistance of third parties to that effect). Therefore, a defence based upon the interpretation of a word does nothing to circumvent the social responsibility of those faced with potentially (yet avoidable) damaging situations.

While the appeal was dismissed, it was again put before the House of Lords who listened intently to a bargaining application for the quashing of an arson charge, before succinctly explaining that with no quarter for doubt, it was evident that the appellant had elected to recklessly avoid his personal obligation to prevent the fire from growing, in favour of distancing himself from his original action, regardless of the foreseeable consequences that followed.