R v G; R v R

JurisdictionEngland & Wales
JudgeLord Justice Dyson,LORD JUSTICE DYSON
Judgment Date17 July 2002
Neutral Citation[2002] EWCA Crim 1992
Date17 July 2002
CourtCourt of Appeal (Criminal Division)
Docket NumberCase No 2001/02347/W4

[2002] EWCA Crim 1992

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand

London

WC2A 2LL

BEFORE

Lord Justice Dyson

Mr Justice Silber and

His Honour Judge Beaumont QC

Case No 2001/02347/W4

2001/02384/W4

Regina
and
G and R

Mr A Newman QC & Miss I Ascherson appeared on behalf of the appellant R

Mr A Jeffries appeared on behalf of the appellant G

Mr R Whitham & Mr B Hillman appeared on behalf of the Crown

Lord Justice Dyson
1

On 23 March 2001 in the Crown Court at Aylesbury before His Honour Judge Maher and a jury, the appellants were convicted of a single offence of arson, causing damage to property being reckless as to whether such property would be damaged, contrary to section 1(1) and (3) of the Criminal Damage Act 1971 ("the 1971 Act"). On 20 April, they were each sentenced to a one year supervision order. At the time of the offences, G was 11 years of age, and R 12. They appeal against their convictions with the leave of the single judge.

2

In R v Caldwell [1982] AC 341, Lord Diplock (with whom Lords Keith and Roskill agreed) said that a person charged with an offence under section 1(1) of the 1971 Act 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". We shall refer to this as "the Caldwell test". Earlier in his speech, Lord Diplock had made it clear that his exposition of the requirements of recklessness was made by reference to the "ordinary prudent individual". The defendant in that case was an adult.

3

At the start of the trial the judge ruled that he had to direct the jury to apply the Caldwell test, and that whether there was an obvious risk of the property being damaged was to be assessed by reference to the reasonable man, and not a person endowed with the characteristics of the defendants. The judge summed up in accordance with this ruling. He said that "the ordinary reasonable bystander is an adult�.He has got in his mind that stock of everyday information which one acquires in the process of growing up" (p 6H). A little later (p 7C) he said: "no allowance is made by the law for the youth of these boys or their lack of maturity or their own inability, if such you find it to be, to assess what was going on".

4

The appeal raises one issue only, and it is an important issue. It is argued on behalf of both appellants that the judge was wrong to rule that the Caldwell test was the correct test to apply. He should have held that it (a) does not apply to children; and/or (b) if it would otherwise apply to children, it is incompatible with Article 6 of the European Convention on Human Rights ("ECHR"). He should, therefore, have held that, at least in the case of a defendant who is a young child, Article 6 requires it to be a necessary condition of recklessness that the relevant risk be obvious to the particular defendant, and not merely to the ordinary reasonable bystander. Before we examine the arguments in more detail, we should briefly set out the facts.

5

On the night of 21 August 2000, the appellants were out camping. At about 3.45 am on 22 August, they got into the yard at the back of the Co-op shop in Newport Pagnell where they opened up bundles of newspapers. They set some of them alight, and threw the burning newspapers under a large wheelie-bin where they left them to burn. The bin was set alight, and the fire spread to the shop. The shop and some adjoining buildings caught fire. Approximately �1 million damage was caused. At their first interview, the boys denied any involvement. In their second interview, they admitted what had happened, and said that they thought that the lit newspapers would burn themselves out on the concrete floor. They said that it never crossed their minds that there was a risk that the fire would spread to the building.

The authorities

6

We start with an examination of the relevant authorities. First, Caldwell itself. Lord Diplock, with whom Lords Keith and Roskill agreed, gave the leading speech. At page 353H he said:

"My Lords, I see no warrant for making any such assumption in an Act whose declared purpose is to revise the then existing law as to offences of damage to property, not to perpetuate it. "Reckless" as used in the new statutory definition of the mens rea of these offences is an ordinary English word. It had not by 1971 become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech � a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one's acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was.

If one is attaching labels, the latter state of mind is neither more nor less "subjective" than the first. But the label solves nothing. It is a statement of the obvious; mens rea is, by definition, a state of mind of the accused himself at the time he did the physical act that constitutes the actus reus of the offence; it cannot be the mental state of some non-existent, hypothetical person.

Nevertheless, to decide whether someone has been "reckless" as to whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as "reckless" in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual upon due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as "reckless" in its ordinary sense if, having considered the risk, he decided to ignore it."

7

A little later, appears the passage that we have already set out at para 2 above.

8

Caldwell was concerned with an offence under section 1(1) of the 1971 Act. In R v Lawrence [1982] AC 510, the House of Lords had to consider recklessness for the purpose of an offence of reckless driving. At page 526E, Lord Diplock dealt with the question of recklessness and said:

"I turn now to the mens rea. My task is greatly simplified by what has already been said about the concept of recklessness in criminal law in R v Caldwell [1982] AC 341 Warning was there given against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being either "subjective" or "objective." Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting "recklessly" if before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such a risk, he nevertheless goes on to do it.

In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things:

First, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and

Second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it. It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.

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."

9

All subsequent attempts in cases under section 1(1) of the 1971 Act to distinguish Caldwell, and to persuade the court not to apply the Caldwell test have failed. Thus, in Elliott v C 77 Cr App R 103, the Divisional Court applied the test to the case of a 14 year old girl who was in a remedial class at school. The court held that the phrase "creates an obvious risk" means that the risk must have been obvious to a reasonably prudent person, and not necessarily to the defendant. The justices had found that the risk that the fire that had been started by the...

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