Divisional Court
| Published date | 01 August 1987 |
| Date | 01 August 1987 |
| DOI | http://doi.org/10.1177/002201838705100301 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
CALDWELL-RECKLESSNESSA POSSIBLE LACUNA?
Chief Constable
of
A
von
&
Somerset Constabulary
v.
Shimmen
The test
of
recklessness established in
R.
v.
Caldwell(l982)
A.C.
341
encompasses two states
of
mind:
(1)
giving no thought to the
possibility
of
there being an obvious risk
of
certain consequences
resulting from one’s act; and
(2)
recognising that there is some risk
involved in doing an act and, nevertheless, going on to do it. There
has been considerable support from academic commentators for the
existence between the above two states
of
mind
of
a lacuna-a state
of
mind falling into neither
of
the two
Caldwell
alternatives.
However, very recently a cautious, but nevertheless highly
significant, indication
of
judicial
support for the existence
of
such
a
lacuna has been given by the Divisional Court in
Chief Constable
of
Avon and Somerset Constabulary
v.
Shimmen (1987) 84
Cr.App.R.7.
The defendant and four friends were larking about outside a shop
one evening and the defendant at one point began to display his
technique in the Korean art
of
self-defence. When one
of
his friends
warned him that he might hurt someone one day he assured the
friend that he had everything under control and, to prove it, made
as if to strike the plate glass window
of
the shop with his foot. His
foot broke the window. He was charged with criminal damage
contrary to section
l(1)
of
the Criminal Damage Act
1971.
Before
the justices it was conceded that the defendant had had no intent
to
break the window but the prosecutor contended that his act
amounted to recklessness and that he ought to be convicted on that
ground. The defendant contended that by reason
of
the skill which
he had (he held a green-belt and yellow-belt in the Korean art
of
self-defence), he had satisfied himself that the window would not
break and that he was, in those circumstances, not reckless. The
court was referred to the leading authorities on the nature
of
recklessness:
R.
v.
Caldwell(l982)
A.C.
341,
and
R.
v.
Lawrence
(1982)
A.C.
510.
In the former case, Lord Diplock, in explaining, in
22
1
Journal
of
Criminal Law
the context
of
criminal damage, the two states
of
mind-constituting
“recklessness”, had stated that:
“. . .
a person charged with an
offence under section
l(1)
of
the Criminal Damage Act
1971
is
‘reckless’ as to whether any such property would be destroyed
or
damaged
if
(1)
he does an act which in fact creates an obvious risk
that property will be destroyed
or
damaged and
(2)
when he does
the act he either has not given any thought to the possibility
of
there
being any such risk
or
has recognised that there was some risk
involved and has nonetheless gone on to do it” (at p.
354).
The
defendant in the present case relied, in particular, on the statement
made by Lord Diplock in the later case
of
Lawrence,
concerning
reckless driving: “If satisfied that an obvious and serious risk was
created by the manner
of
the defendant’s driving, the jury are
entitled to infer that he was in one
or
other
of
the states
of
mind
required to constitute the offence and will probably do
so;
but
regard must be given
to
any explanation he gives as to his state
of
mind which may displace the inference (at p.
527).
Relying upon
that statement, the defendant suggested that the explanation he had
given in the present case, that he had taken what he considered to be
the necessary steps to avoid any risk
of
damage, entitled him
to
be
acquitted. He sought to draw support for his view from the final
sentence
of
a passage in Smith and Hogan’s
Criminal Law
(5th
ed.), where the authors state that “Once the obvious risk is proved,
it matters not whether the defendant realised there was a risk and
decided to take
it
or
never considered whether there was a risk
or
not. Either way, he is guilty. He can escape only if he considered the
matter and decided that there was
no
risk” (at p.
55).
The justices
took the view that an obvious and serious risk was created by the
defendant’s conduct. However, they accepted the argument that
the inference that he was in one
or
other
of
the necessary states
of
mind required to constitute the offence could be displaced in the
defendant’s case by virtue
of
his evidence relating to his expertise in
the science
of
martial arts. The justices adopted the passage (above)
from
Smith and Hogan,
and, being
of
the opinion that the defendant
perceived there could be a risk
of
damage, but after considering
such risk concluded that no damage would result, they accordingly
dismissed the charge. On appeal by the prosecutor by way
of
case
stated, the question for the opinion of the Divisional Court was:
were the justices correct in law
to
decide that the defendant should
222
Divisional
Court
not be regarded as reckless as
to
whether or not property would be
destroyed or damaged if he did an act which in fact created an
obvious risk that property would be destroyed or damaged and
having considered the circumstances subjectively concluded that no
damage would result from that act?
In the Divisional Court, Taylor
J.
observed that a number
of
writers have expressed the view that between the two possible states
of
mind constituting recklessness as defined in
Caldwell,
there exists
or could exist a lacuna-a state of mind which
fell
into neither
of
the
two alternative categories posed by Lord Diplock. He drew
particular attention
to
two hypothetical cases cited by Professor
Griew in his article, “Reckless Damage and Reckless Driving:
Living with Caldwell and Lawrence”
(1981)
Crim.L.R.
743.
Professor Griew stated that: “The following cases are outside the
terms of the model direction in
Caldwell.
(a)
M.
does give thought
to whether there is a risk
of
damage to another’s property attending
his proposed act. He mistakenly concludes that there is no risk; or
he perceives only a risk such as would in the circumstances be
treated as negligible by the ordinary prudent individual. He missed
the obvious and substantial risk. (b)
N’s
case is a more likely one.
He is indeed aware of the kind of risk that will attend his act if he
does not take adequate precautions. He takes precautions that are
intended and expected to eliminate the risk (or to reduce it
to
negligible proportions). But the precautions are plainly, though not
plainly to him, inadequate for this purpose. These appear not to be
cases of recklessness.
. . .”
(at p.
748).
Taylor
J.
acknowledged that: “In the first example,
it
may
well
be
arguable that the lacuna exists because it is not a case where
M.
failed
to
give any consideration
to
the possibility of a risk.
It
is a case
where he did give consideration to the possibility of the risk and
concluded, albeit mistakenly, that there was no risk. In terms,
therefore, of Lord Diplock’s definition, he has not recognised that
there was some risk involved. He therefore is outside the second
possible state of mind referred to in
R.
v.
Caldwell
(supra)” (at
p.
11).
However, the case
of
N.
posed by Professor Griew, Taylor
J.
felt, was different: “He was aware of the kind of risk which would
attend his act
if
he did not take adequate precautions. He seeks to
rely upon the fact that he did take precautions which were intended,
and by him expected, to eliminate the risk. He was wrong, but the
223
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