House of Lords
| Published date | 01 January 2004 |
| DOI | 10.1350/jcla.68.1.31.25840 |
| Date | 01 January 2004 |
| Subject Matter | House of Lords |
House of Lords
Recklessness: Caldwell Test Abolished
R vG and Another [2003] UKHL 50, The Times (17 October 2003)
Two boys aged 11 and 12 had gone camping without their parents’
permission. In the middle of the night they had entered the back yard of
a shop where they had found bundles of newspaper. They had started to
read the newspapers and then they had set light to some of them. They
put the burning papers underneath a large plastic wheelie bin and then
left the premises. A large fire resulted that caused £1 million of damage.
The boys had thought that the newspaper fire would extinguish itself on
the concrete floor of the yard and had not realised that there was a risk
that it would spread further. The trial judge and the Court of Appeal
both felt that they were bound by the decision of the House of Lords in
Metropolitan Police Commissioner v Caldwell [1982] AC 341, and related
case law such as Elliott vC (A Minor) [1983] 2 All ER 1005. This meant
that, for the purposes of the offence of arson under the Criminal Damage
Act 1971, given that there was an obvious and serious risk of the fire
spreading, it was immaterial that the defendants themselves had not
foreseen that risk. The boys appealed
H
ELD
,
ALLOWING THE APPEAL
,the case of Metropolitan Police Commis-
sioner vCaldwell [1982] AC 341 should be overruled. The House of Lords
considered the option of simply refining the Caldwell test in order to
achieve justice in the particular case, by, for example, taking into ac-
count the actual characteristics of the defendants when determining
whether there was an obvious risk. However, Lord Rodger of Earlsferry
concluded (at [63]) that Lord Diplock’s speech in Caldwell:
has proved notoriously difficult to interpret and those difficulties would
not have ended with any refinements which your Lordships might have
made to the decision. Indeed those refinements themselves would almost
inevitably have prompted further questions and appeals. In these circum-
stances the preferable course is to overrule Caldwell.
The House of Lords did not mince words in criticising the Caldwell
decision. It stated (per Lord Steyn, at [57]):
The surest test of a new legal rule is not whether it satisfies a team of
logicians but how it performs in the real world. With the benefit of
hindsight the verdict must be that the rule laid down by the majority in
Caldwell failed this test. It was severely criticised by academic lawyers of
distinction. It did not command respect among practitioners and judges.
Jurors found it difficult to understand; it also sometimes offended their
sense of justice. Experience suggests that in Caldwell the law took a wrong
turn.
C
OMMENTARY
The House of Lords has dramatically abolished Caldwell recklessness. A
subjective test must now be satisfied in order for a defendant to be found
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