Explain and evaluate the extent to which the decision of the house of lords in Gemmell and Richards (2003) 3 WLR 1060 has clarified and improved the meaning of the concept of recklessness in English criminal law?
The concept of ‘recklessness’ or being ‘reckless’ has been described as causing injury without intending to do so. But not every case of foresight amounts to recklessness as in order for a defendant to be reckless then the risk of the action they have taken must be an unreasonable one. A certain foresight of certainty must be taken into account in which, is the action in which the defendant partaken in one with a foreseeable outcome?
But all depend on the circumstance as driving 30mph on a busy road may be reasonable while driving at 50mph may not be due to the increased risk of accidents and the more serious the injuries would be if they were to crash the car at a higher speed.
Also another fact is if the risk is minimal or only and ‘outside chance’ then running the risk is more than likely going to be unobjectionable but even that slight risk is enough to be put forward as recklessness if the harm is serious enough and the act has no social value.
But this has caused much confusion over the years do the need for foresight as it was said that in recklessness that while the defendant must foresee the possibility of doing the actus reus but he need not seek or be motivated to bring it about.
Pre-1982 there was a understandable subjective test that the defendant was guilty if they thought about the risk and then carried on with their action and they were not guilty if you didn’t think about the risk.
In Cunningham (1957) the defendant interfered with the coin-operated gas meter in an unoccupied house in order to steal money from it. The gas escaped, seeping into an adjoining house, and endangered the life of the person living there. He was charged with "Maliciously administering a noxious thing so as to endanger life".
It was said by the court of appeal that "malice" required either intention or recklessness and the latter meant that
"the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it"
And so the court held that "maliciously" imports an awareness that an act may have the consequence of causing some physical harm to some other person, even if the harm foreseen was relatively minor.
This was backed up by Stephenson (1979) in which a schizopherenic tramp lit a fire in a large haystack to keep warm, and in doing so burnt down the barn casing £4000 worth of criminal damage and so at the time two questions needed to be asked did he intend it? No he did not, and was he reckless (subjectively as one the rule at the time) and so no he wasn’t. Due to his condition the defendant might not of been aware of the risk in the haystack.
But the position of recklessness was confused, it was said that the defendant must think about the consequences of the said action but subjectively meaning that the court would have to prove that the person must of thought about the consequences in order to find them guilty. But in earlier cases such as Parker and Briggs, different stances on recklessness were taken.
In Briggs(1977), the defendant took hold of a door handle to V’s car and tried to open the door, apparently with the normal arm movement and the handle snapped off. On the appeal, the court of appeal quashed D’s conviction for misdirection saying the trial judge had failed to instruct the jury that, in order to be held reckless, D must have given thought to the risk of damaging the door handle and it was possible that D had not done so. The definition of recklessness was set as
"A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act."
In Parker(1977), the defendant slammed down a public telephone receiver with such thought that he broke it. His defence was that he was too enraged to think about the risk (which technically speaking fulfils the requirements of the recklessness law). But the court of appeal rejected this appeal saying that.
"the inherent association of his violent action with its consequence meant that he could be taken to have appreciated the risk without the awareness of that risk being at the forefront of his mind, and without the need for sober or careful deliberation in advance"
And due to this the definition from Brigg’s was modified to
"A man is reckless in the sense required when he carried [sic] out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continuing in the performance of that act."
The definition of recklessness was about to change though as in Caldwell (1982) in which the defendant had a disagreement with his boss at a hotel and got very drunk and set fire to the hotel and was charged with inter alia, with an offence against section 1(1) of the Criminal Damage Act 1971m which makes it an offence to damage another’s property,
"being reckless as to whether any such property would be destroyed or damaged".
In Caldwell Lord Diplock changed the test to an objective test and so the jury had to say whether the defendant was guilty or not guilty from the point of view from the eyes of a reasonable man.
The house of lords then put forward that a defendant is reckless in law if:
"(1)he does an act which in fact creates an obvious risk that property would 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"
And so this meant that if the defendant thought about the risk, this was a subjective point of view but if the defendant didn’t think about the risk then it was objective.
And then this was then updated in Lawrence (1982) to put "[And serious]" after obvious saying it was "...an obvious and serious risk...."
This caused confusion as although this captured people who were intoxicated and didn’t think about the risk due to being intoxicated, it also captured mental handicapped people and children making it an unfair ruling.
Such a case was Elliot C(1983) in which a 14 year old girl with learning difficulties, had wandered away from home and living rough for 74 hours and she ended up in a neighbours garden shed in which she found some white spirit, which she poured on the floor and dropped lighted matches on it. Which doing so destroyed the shed.
It was found that "in the circumstances this risk [that the shed would be destroyed] would not have been obvious to her or appreciated by her id she had given thought to the matter" but nevertheless she was convicted of criminal damage on the authority of Caldwell, and that the test is objective and says whether the risk would be obvious to a reasonable person, rather than, should it have been obvious to the particular defendant. The justices later when on to say that when Lord Diplock referred to "an obvious risk" in Caldwell, that he mean a risk which was obvious to a particular defendant, and so the defendant was acquitted.
"if the risk is one which would have been obvious to a reasonably prudent person, once it has also been proved that the particular defendant gave no thought to the possibility of there being such a risk, it is not a defence that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it."
Caldwell test also gave rise to the ‘Caldwell Lacuna’ in which if an accused thinks about the issue and decide, even though it’s the wrong choice, that there was no risk, then it is difficult to see how she can be reckless within Caldwell.
Such as Simmen (1986) who was a ‘martial arts expert’ and said he could go to kick his foot towards a window and stop it a quarter of an inch before the window. Instead his foot went straight through the window. In court he said he thought he ‘minimised the risk’ indicating that there was a still a risk but took it anyway, and so was found to be reckless. It might have been possible for him to be found not guilty if he said eliminated the risk completely.
Since then the importance of the Caldwell ruling has now diminished as it no longer affects English law of manslaughter, assault or rape and has been restricted to mainly criminal damage and other statutory offences.
Then recently in Gemmel & Richards (2002), In which 2 defendants aged 11 and 12 respectively, entered the backyard of a the co-op shop in Newport Pagnell in which they set fire to some newspapers and threw them under a wheelie bin. The boys left the yard without putting out the burning papers. The newspapers set fire to the first wheelie-bin and the fire spread from it to the wheelie-bin next to the shop wall. From the second bin the fire spread up under the overhanging eave, to the guttering and the fascia and then up into the roof space of the shop until eventually the roof of the shop and the adjoining buildings caught fire. The roof collapsed. Approximately £1m worth of damage was caused. The appellants' case at trial was that they expected the newspaper fires to extinguish themselves on the concrete floor of the yard. It is accepted that neither of them appreciated that there was any risk whatsoever of the fire spreading in the way that it eventually did.
Due to the Caldwell test, in that recklessness was measured with a subjective view, from the eyes of a reasonable man, then the defendants would be guilty.
Long Bingham of Cornhill said that in s 1 of the 1971 Act Parliament's intention was to replace the expression "maliciously" which had previously been used with the more familiar expression "reckless". It was a very plain intention to replace the old-fashioned and misleading expression "maliciously" by the more familiar expression "reckless" but to give the latter expression the meaning which R v Cunningham (1957) meant it to be and no relevant change in the mens rea was intended.
And so on these grounds the defendants were quashed from all charges as using Cunningham’s definition from a subjective point of view, they were indeed not guilty. And the so a new definition of recklessness was proposed to make it more understandable.
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to -
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk."
But in order to keep people who genuinely would not recognise a risk out of danger and those who were just to try and manipulate the law such guidelines were put in place.
". . . it amounts to no more than this: 'If there was an obvious risk of damage to property, the defendant is guilty: it makes no difference whether he realised there was a risk or not.' It does not require the jury to inquire into the defendant's state of mind at all and is apparently inconsistent with his Lordship's view that 'mens rea is a state of mind of the accused himself.'
And also as before in the Caldwell test everything had to be looked through the point of view from the eyes of a reasonable person, thus trapping children who may not know right from wrong and also ‘special needs’ people with mental disorders. This was indeed ignoring the special position of children in the criminal justice system, in the ‘Convection on the Rights of The child’ saying,
"States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society."
And so if it is wrong to ignore these special characteristics of children in this context then also it is wrong to ignore them in an adult with learning difficulties. And so this will protect the said people from unjust convictions, unlike the Caldwell test which trapped them. This does not restore the correct interpretation of section 1 of the 1971 act however in which the meaning of recklessness involved foresight of consequences. And this subjective state of mind is conditional inferred "by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances"
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