R v Caldwell

JurisdictionEngland & Wales
JudgeLord Wilberforce,Lord Diplock,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Roskill
Judgment Date19 March 1981
Judgment citation (vLex)[1981] UKHL J0319-2
Date19 March 1981
CourtHouse of Lords

[1981] UKHL J0319-2

House of Lords

Lord Wilberforce

Lord Diplock

Lord Edmund-Davies

Lord Keith of Kinkel

Lord Roskill

Commissioner of Police for the Metropolis
(on Appeal from the Court of Appeal (Criminal Division))
Lord Wilberforce

My Lords,


These would dismiss the appeal and answer the certified questions as suggested by my noble and learned friend, Lord Edmund-Davies.

Lord Diplock

My Lords,


The facts that gave rise to this appeal are simple. The respondent had been doing work for the proprietor of a residential hotel. He considered that he had a grievance against the proprietor. One night he got very drunk and in the early hours of the morning he decided to revenge himself on the proprietor by setting fire to the hotel, in which some ten guests were living at the time. He broke a window and succeeded in starting a fire in a ground floor room; but fortunately it was discovered and the flames were extinguished before any serious damage was caused. At his trial he said that he was so drunk at the time that the thought that there might be people in the hotel whose lives might be endangered if it were set on fire had never crossed his mind.


He was indicted at the Central Criminal Court upon two counts of arson under section 1, subsections (1) and (2) respectively, of the Criminal Damage Act 1971. That section reads as follows:

"1.—(1) 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.

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another ….

( a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

( b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;

shall be guilty of an offence.

(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson."


Count 1 contained the charge of the more serious offence under section 1(2) which requires intent to endanger the life of another or recklessness as to whether the life of another would be endangered. To this count the respondent pleaded not guilty. He relied upon his self-induced drunkenness as a defence, on the ground that the offence under subsection (2) was one of "specific intent" in the sense in which that expression was used in speeches in this House in Reg. v. Majewski [1977] A.C. 443. Count 2 contained the lesser offence under section 1(1) to which the respondent pleaded guilty.


The learned recorder directed the jury that self-induced drunkenness was not a defence to count 1, and the jury convicted him on this count. The recorder sentenced him to three years imprisonment on count 1 but passed no sentence on count 2, the lesser offence, to which he had pleaded guilty. On appeal the Court of Appeal held that her direction to the jury as to the effect of self-induced drunkenness on the charge in count 1 was wrong. They set aside the conviction on that count; but left the sentence of three years imprisonment unchanged as they considered it to be an appropriate sentence on count 2. So it was only a pyrrhic victory for the respondent; but it left the law on criminal damage and drunkenness in a state of some confusion.


The question of law certified for the opinion of this House was:

"Whether evidence of self-induced intoxication can be relevant to the following questions—

( a) Whether the defendant intended to endanger the life of another;


( b) Whether the defendant was reckless as to whether the life of another would be endangered, within the meaning of Section 1(2)( b) of the Criminal Damage Act 1971".


The question recognises that under section 1 (2)( b) there are two alternative states of mind as respects endangering the life of another, and that the existence of either of them on the part of the accused is sufficient to constitute the mens rea needed to convert the lesser offence under section 1(1) into the graver offence under section 1(2). One is intention that a particular thing should happen in consequence of the actus reus, viz., that the life of another person should be endangered, (this was not relied on by the prosecution in the instant case). The other is recklessness as to whether that particular thing should happen or not. The same dichotomy of mentes reae, intention and recklessness, is to be found throughout the section; in subsection (1) and paragraph ( a) of subsection (2) as well as in paragraph ( b); and "reckless" as descriptive of a state of mind must be given the same meaning in each of them.


My Lords, the Criminal Damage Act 1971 replaced almost in their entirety the many and detailed provisions of the Malicious Damage Act 1861. Its purpose, as stated in its long title was to revise the law of England and Wales as to offences of damage to property. As the brevity of the Act suggests, it must have been hoped that it would also simplify the law.


In the Act of 1861, the word consistently used to describe the mens rea that was a necessary element in the multifarious offences that the Act created was "maliciously"—a technical expression, not readily intelligible to juries, which became the subject of considerable judicial exegesis. This culminated in a judgment of the Court of Criminal Appeal in Reg. v. Cunningham [1957] 2 Q.B. 396 which approved, as an accurate statement of the law, what had been said by Professor Kenny in the first edition of his Outlines of Criminal Law published in 1902:

"In any statutory definition of a crime, malice must be taken … as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not ( i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)".


My Lords, in this passage Professor Kenny was engaged in defining for the benefit of students the meaning of "malice" as a term of art in criminal law. To do so he used ordinary English words in their popular meaning. Among the words he used was "recklessness", the noun derived from the adjective "reckless", of which the popular or dictionary meaning is: careless, regardless, or heedless, of the possible harmful consequences of one's acts. It presupposes that if thought were given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it. Conscious of this imprecision in the popular meaning of recklessness as descriptive of a state of mind, Professor Kenny, in the passage quoted, was, as it seems to me, at pains to indicate by the words in brackets the particular species within the genus: reckless states of mind, that constituted "malice" in criminal law. This parenthetical restriction on the natural meaning of recklessness was necessary to an explanation of the meaning of the adverb "maliciously" when used as a term of art in the description of an offence under the Malicious Damage Act 1861 (which was the matter in point in Reg. v. Cunningham); but it was not directed to and consequently has no bearing on the meaning of the adjective "reckless" in section 1 of the Criminal Damage Act 1971. To use it for that purpose can, in my view, only be misleading.


My Lords, the restricted meaning that the Court of Appeal in Reg. v. Cunningham had placed upon the adverb "maliciously" in the Malicious Damage Act 1861 in cases where the prosecution did not rely upon an actual intention of the accused to cause the damage that was in fact done, called for a meticulous analysis by the jury of the thoughts that passed through the mind of the accused at or before the time he did the act that caused the damage, in order to see on which side of a narrow dividing line they fell. If it had crossed his mind that there was a risk that someone's property might be damaged but, because his mind was affected by rage or excitement or confused by drink, he did not appreciate the seriousness of the risk or trusted that good luck would prevent its happening, this state of mind would amount to malice in the restricted meaning placed upon that term by the Court of Appeal; whereas if, for any of these reasons, he did not even trouble to give his mind to the question whether there was any risk of damaging the property, this state of mind would not suffice to make him guilty of an offence under the Malicious Damage Act 1861.


Neither state of mind seems to me to be less blameworthy than the other; but if the difference between the two constituted the distinction between what does and what does not in legal theory amount to a guilty state of mind for the purposes of a statutory offence of damage to property, it would not be a practicable distinction for use in a trial by jury. The only person who knows what the accused's mental processes were is the accused himself—and probably not even he can recall them accurately when the rage or excitement under which he acted has passed, or he has sobered up if he were under the influence of drink at the relevant time. If the accused gives evidence that because of his rage, excitement or drunkenness the risk of particular harmful consequences of his acts simply did not occur to him, a jury would find it hard to be satisfied...

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