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.

ACCESS TO JUSTICE

What exactly is ‘access to justice’, and why do we need to preserve it?

To answer that we need to first understand how the phrase emerged and why it may be in danger of becoming a legal bygone.

‘Access to Justice’ was a phrase used by Lord Woolf in 1996, when attempting to streamline the litigation processes attached to personal injury claims in the United Kingdom. 

Based primarily upon the combined incentives of Alternative Dispute Resolution (ADR) and part 36 early offers strategies (see my paper at the foot of this article), it was suggested that by expediting claims there would by default, become a lesser chance of spiralling legal costs and reluctance by the poor seeking damages sustained in events beyond their control.

At first blush, this ‘quickening’ of justice appears to embrace those without the means of representation; however, it is now suggested that in fact the contrary has become true, in large part due to the collective impact of legal aid cuts, increased court fees and numerous court closures.

This gross misdirection translates more as a cloaked prevention than equitability, while there are now many activists campaigning for a dramatic change in policy.

The dangers inherent to early litigation offers far outweigh the genuine reward for pursuance of authentic remedy, yet unless fiscally challenged claimants are determined enough to transcend the aggressive manoeuvres of defendant representatives, the odds will always remain stacked against them.

This in effect, strangulates the innate purpose of accessible justice and places far greater value upon the currency of industry; therefore, while far from helping the weak, it runs a calculable risk of leaving them powerless to fight back.

Legal Aid

In their 2016 report, Amnesty International summarised that three key groups were directly affected by arbitrary cuts to legal aid support; namely (i) the vulnerable, (ii) the transitory and (iii) the disabled; and while taking great strides to illustrate the far-reaching consequences of such inconsiderate narrowness, the message was that:

“Amnesty International is therefore calling on the UK government to urgently fulfil its promise to review the impact of the cuts and take steps to ensure the right of the most disadvantaged sectors of society to access justice is adequately protected.”

AMNESTY INTERNATIONAL

Writing as a father of a special needs child, the first and third groups possess immediate implications for families similar to my own, who for one reason or another, might find themselves facing legal action, whether through public body frustrations, or simple damages-based incidents.

Yet, knowing there is no legal counsel and no validation of a right to claim without parallel costs concerns, there remains only the stark realisation that the price of justice now relies upon the roll of a loaded dice.

Legal Costs

Interestingly, while this area of discussion might prove hard to quantify with any degree of exactness, the Legal Ombudsmen publication ‘Ten Questions to ask your Lawyer about Costs‘, proves instantly invaluable when evaluating the merits of private law claims.  

More notably, recent changes to the fixed fees threshold within litigation, has appeased the fears of those predominantly affected by previous reforms; yet the issue remains that claimants subject to a deprivation of counsel (pro-bono or otherwise) might still think twice before filling out their CNF forms, a frank but cautious sentiment echoed by Jonathan Smithers of The Law Society, who remarked:

“A single approach for all cases, regardless of complexity, will lead to many cases being economically unviable to pursue which undermines the principle of justice delivering fairness for all.”

THE LAW SOCIETY

However, when all is said and done it is unlikely that both the practice industry and public interest will ever read from the same page, yet that should never encourage the marginalisation of legal support in a world that is only becoming more crowded and prone to collisions of priority.

The Courts

While there is understandable anger at the gradient closure of almost ninety courts across the country, the promise of a heavily invested tech and user-friendly system could prove the one positive in this tempering of justice; and so it would be remiss to level accusations of deliberate prevention, when the suggestion of ‘pop-up’ courts is peddled through various forms of digital media.

There is however, cause for concern when terms such as ‘makeshift’ and ‘public houses’ are used in the same context as the ‘fair’ and ‘reasoned’ dispensation of justice within a shrinking framework of purpose built environments, before calm and attentive audiences.

In fact, one might go so far as suggest that legal discourse is becoming diluted by virtue of the fact that ‘quickie’ courts will themselves, overlook the precision of judicial application in favour of higher case turnover. 

Contrastingly, the option to pursue legal ends through online portals would seem to proffer greater structure, less chance for media intrusion and a significant cost saving, as was shown during Gary Linker’s divorce.

In closing, the true meaning of ‘access to justice’ is ultimately not one of quick fixes to complex problems but an equal right to a domestic jurisprudence generations in the making.

By weakening the fabric of reparation in favour of mass appeasement, the English judicial system will only prove itself counter-productive and rushed.

Hence, it is crucial that any consideration for public interest and those employed to serve them must be delicately balanced, rather than a mere continuance of treating every legal problem like a nail.

Addendum

Download and read my paper on early litigation settlements for further reading around the subject.

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