NOTES OF CASES

DOIhttp://doi.org/10.1111/j.1468-2230.1982.tb02477.x
Published date01 March 1982
Date01 March 1982
NOTES
OF
CASES
RECKLESSNESS REVISITED
IT
was inevitable that
Caldwell
and
Lawrence
a
would receive
immediate critical attention, and were it not for the fact that we
think that the critics have missed some part of the significance of
these decisions, we would not presume to enter the debate. In our
submission, however,
a
proper appreciation of these decisions
requires that they be read in the context of
Shepp~rd,~
and,
pace
Professor Glanville Williams,
Majewski
as well, for that case may
throw light on
Lawrence
as
Sheppard
does on
Caldwell.
In the
result, the House of Lords bids fair to install a regime of
mens rea
based upon concepts of moral wickedness, subjective in some
respects, objective in others, difficult to apply consistently and for
that reason alone more objectionable than the definition which it
partially
replace^.^
The facts of
Caldwell
and of
Lawrence
are simple. In
Caldwell,
the respondent, who considered that he had
a
grievance against the
proprietor of an hotel by whom he was employed, got very drunk,
decided to revenge himself, and started
a
fire in
a
ground-floor
room. The fire was discovered and extinguished before any serious
damage was caused. There were at the time some
10
guests in the
hotel; the accused said that he was
so
drunk at the time that the
thought
o,f
danger to them never crossed his mind. He was found
guilty
of
a
charge under section
1
(2)
of
the Criminal Damage Act
1971
of damaging property belonging to another (without lawful
excuse), being reckless whether the life of another would be endan
gered thereby.6 The question of law certified for the House was
whether evidence of self-induced intoxication could be relevant to
the questions whether the defendant intended to endanger the life
of
another, or was reckless as to whether the life of another would
be endangered, within the meaning of section
(2)
(6)
of the Criminal
Damage Act
1971.
By
a
majority, the House of Lords held that it
was not
so
relevant. In
Lawrence,
the accused, driving a motorcycle
at speed, struck and killed
a
woman pedestrian. The issue in that
case was whether
mens rea
is required on
a
charge
of
reckless
driving, and if
so,
what that
mens rea
consists of. Their Lordships
held that
mens rea
was indeed required; the particular formulation
which they applied followed from
Caldwell.
1
[I9811 2 W.L.R.
511.
2
(1981)
73
0.App.R.
1.
3
[1980]
3
W.L.R. 960.
4
[1976]
2
All
E.R.
142; see Professor Glanville Williams’s comments in [1981]
6
Seemingly, only
J.
McEwan and St.
J.
Robilliard,
Recklessness: the House
of
6
He
pleaded guilty to an offence under
s.
1
(1)
of
the Act, and that conviction
0irn.L.R.
581.
Lords and the criminal law” (1981)
1
L.S.
287
actually approve the result.
was not in
issue
in the case.
198
Mar. 19821
NOTES
OF
CASES
199
The principal interest of these cases concerns the definition
of
recklessness.
So
far
as
drunkenness is concerned, their Lordships
reiterate the position that self-induced intoxication only assists
the defence where the crime charged is one of specific intent.
As
the
relevant mental element in the instant case was recklessness,
the accused could not set up drunkenness to show that he lacked the
requisite
mens rea.‘
Indeed, on that reasoning, the same result
would have followed had recklessness been treated, as it was not,
as always involving foresight of consequences. Only Lord Edmund-
Davies took a different view
of
drunkenness. In addition to dis-
agreeing with the whole tenor of Lord Diplock’s decision on
recklessness, his Lordship’s dissenting judgment points out also that
Majewski
ought not to govern the case here, because recklessness
is not the only mental state required for conviction under section 1
(2) (b), but rather a further mental state, beyond the intent
to
damage property belonging to another; it is, on this view, a sort of
specific recklessness.” That analysis did not, however, prevail.
We turn then, to the formulation of the mental element adopted
by
the majority in
Caldwell,
however unnecessarily, and the reasons
therefor. Lord Diplock declined to resolve the case by reference to
the question whether liability was subjective or objective, remark-
ing, surely correctly, that whether
a
man foresaw something or did
not, that mental state is nonetheless subjective to him. The problem
is, however, that this truth solves nothing; one must still inquire
into the precise mental state required for guilt.
In reaching his formulation of the mental state, Lord Diplock
had first to discard what had become, in both the reported cases
and academic writings, the accepted test
of
recklessness, namely,
whether the accused foresaw the risk and took it unju~tifiably.~
In
doing
so,
his Lordship rejected the argument that the formulation
of recklessness in
Cunningham
was intended to be exhaustive. Lord
Diplock does not deny that malice, the word used in the Malicious
Damage Act
1861,
imports recklessness. Rather, he treats reckless-
ness as having an ambit which goes from cases of actual foresight
to cases of particularly wrongful inadvertence, and treats malice as
referring only to that aspect of recklessness which requires adver-
tence. Lord Diplock states that Professor Kenny, upon whose for-
mulation of recklessness the court in
Cunningham
relied, was
. . .
at pains to indicate..
.
the particular species within the genus,
reckless states of mind, that constitutes
malice
in
criminal law.”
ln
This singular assertion
is,
in fact, a complete distortion. Kenny
sought, like other academic authors, and even judges before the
7
Culdwell
[1981]
2
W.L.R.
509, 517.
8
Ibid.
at
p.
516.
9
e.g.
Cunninghum
[1957]
2
Q.B. 396;
Sfephenson
[1979] Q.B. 695; and see
for
general discussion, The Law Commission, Report
on
the Mental Element in Crime
(Law.Com. 89). McEwan and
St.
J.
Robilllard,
loc.
cir.
point out that there were
cases which in fact extended recklessness into inadvertence; we disagree with them
about their persuasive value.
10
Caldwell
[1981]
2
W.L.R.
509. 513.

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