Recklessness: The Objectivity of the Caldwell Test
| DOI | 10.1177/002201839906300105 |
| Author | Michael Jefferson |
| Date | 01 February 1999 |
| Published date | 01 February 1999 |
| Subject Matter | Article |
Recklessness:
The
Objectivity
of
the
Caldwell
Test
Michael Jefferson
University
of
Sheffield
Caldwell as interpreted in Elliott v C
and
R, appears to be a slippery slope to
intolerable injustice
with
no obvious exit. (Smith &Hogan, Criminal Law
(8th
ed, 1996) p68)
The reserved
judgment
of
the
Court of Appeal in Coles [1995] 1 Cr App
R 157 provides a
convenient
opportunity
for a discussion of
the
present
state of play
with
regard to recklessness in English criminal law.
The facts
were
simple. The accused, a15-year-old boy, was charged
with
arson
in
the
form of intending to cause damage to property or being
reckless as to
whether
property
would
be destroyed or damaged by fire
and
being reckless as to
whether
the
lives of
two
of his friends
would
be
endangered
contrary to s 1(2)
and
(3) of
the
Criminal Damage Act 1971.
Early
one
morning
he
had
set light to
hay
in a
bam
and
had
put
more
hay
on
the
fire to encourage it to
bum.
In
the
bam
were
four
other
young
people,
two
of
whom
were
asleep at
the
time. The accused
had
allegedly endangered
the
lives of
the
sleeping children recklessly.
One
of
the
children
who
were
awake
said
that
she
was at risk of being trapped
in
the
bam.
In evidence
the
accused
admitted
that
he
recognised
that
it
was 'highly dangerous to start a fire while
others
were
asleep nearby'.
Although
he
stated at trial
that
he
would
have stamped
on
the
fire
before
any
peril
would
have
arisen, he conceded in cross-examination
that
there
was a risk
the
sleeping children
might
not
have
awoken
in
time to escape.
Evidence was adduced to
the
effect
that
the
accused was of below
average intelligence
and
IQ,
though
there
was
no
suggestion
that
he
was
subnormal. His counsel sought to use this evidence to
demonstrate
that
his client lacked
the
capacity for foreseeing
that
his actions might
endanger
life
with
the
result
that
he
was
not
guilty of
the
offence
charged.
Hobhouse U
per
curiam rejected this contention. Relying
on
previous
authorities
he
held
that
the
Caldwell [1982] AC 341, HL definition of
recklessness for
the
purposes of criminal damage including
arson
applied
with
full force to those of below average ability. No derogation was to be
created for
such
individuals from
the
test of
the
ordinary
prudent
bystander
(see Sangha [1988] 1 WLR 519, CA) laid
down
in Caldwell
and
applied in Elliott vC[1983] 1 WLR 939, DC
and
Stephen Malcolm R (1984)
79 Cr App R 334, CA.
It
is
noteworthy
that
all these cases involved
arson. The facts of Coles
were
not
propitious for a change in
the
law. A
more
meritorious accused might
have
received a
more
sympathetic
consideration
than
the
present
one
did.
What
is surprising, however, at
this
juncture
is
the
enthusiastic
endorsement
given to
the
Caldwell
doctrine in
Coles.
Hobhouse LJ spoke of
'the
classical direction' (at
57
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