Caldwell after Moloney—Another Look at Caldwell—Recklessness
| Published date | 01 February 1987 |
| Author | I. H. E. Patient |
| DOI | 10.1177/002201838705100108 |
| Date | 01 February 1987 |
| Subject Matter | Article |
Journal
of
Criminal Law
CALDWELL
AFTER
MOLONEY-
ANOTHER
LOOK
AT
CALDWELL-
RECKLESSNESS
1.
H.
E.
Patient*
English criminal law is bedevilled by the fact that judges do not
always make a clear distinction between rules
of
substantive law on
the one hand and rules
of
evidence on the other. This is not
surprising, and perhaps unavoidable, in a common law system where
legal rules are essentially case-developed. (As opposed to civil law
systems where judges start from preclassified rules largely
contained in separate codes
of
material law and procedural law
respectively.) This blurring
of
the distinction has been responsible
for a considerable number
of
difficulties in the criminal law, some
of
which are as yet unresolved. A well known instance
is
the
inconsistent treatment
of
the defence
of
mistake. Although the
“hoary error” has been exposed long ago and despite
D.
P.
P.
v.
Morgan,’
there are still cases which suggest that a mistake, to be
effective as a defence to an offence requiring
mens rea,
must be not
only honest but also reasonable. This is usually presented as a rule
of
substantive law. In fact
it
can be demonstrated that in essence the
matter is one
of
evidence. A court will regard a mistake as
reasonable in cases where they believe the accused, but as
unreasonable where they do not. Contrast the well-known pair
of
pre-Morgan
bigamy cases of
R.
v.
Could’
and
R.
v.
King’
involving,
respectively, a believable and unbelievable (or rather a “believed”
and an “unbelieved”) misapprehension on the part
of
the accused.
Another example concerns the
mens rea
of murder. Until quite
recently,
Hyam
v.
D.
P. P.4
in conjunction with
R.
v.
Cunningham’
was generally seen as authority for the proposition that, as a matter
of
substantive law, the
mens rea
for murder is either a) an intention
to
cause death or grievous bodily harm or b) foresight
of
the
*
Faculty
of
Laws,
Queen
Mary
College, University
of
London.
19751
2
All
E.R. 347.
19681
1
All
E.R. 849.
19633 3
All
E.R.
561.
19741
2
All
E.R. 41.
19811
2
All
E.R.
863.
82
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