Recklessness criminal: Encyclopedia II - Recklessness criminal - R v Caldwell 1981 1 AER 961

Recklessness criminal - R v Caldwell 1981 1 AER 961

Caldwell, a disgruntled former hotel employee who had recently been fired by his boss, got very drunk one night in late 1979 and decided to set fire to his former employer's hotel, intending to damage the property. At the time he set the blaze, however, there were ten guests asleep inside the hotel, and though the fire was extinguished quickly, Caldwell was charged not only with arson (to which he pleaded guilty), but with the more serious charge of arson with intent to endanger human life. It should be noted that, in English law, the offence of "arson" was abolished in the Criminal Damage Act 1971, although the use of the word was retained to express the particular "horror" with which the public views offences involving the deliberate use of fire. Caldwell was convicted under s1(2) Act 1971, which requires that the defendant shall:

The House of Lords was mainly concerned with the extent to which self-induced drunkenness could be a defence to offences of specific intent and basic intent (see intention), the latter would encompass recklessness. The Lords ultimately ruled that self-induced intoxication could be a defence to specific intent, but not to basic intent, i.e. recklessness. Although the discussion of recklessness tends to be largely obiter dicta, Lord Diplock's discussion contains what was intended as a model direction, namely that a defendant is reckless when:

To that extent, the test is one of obviousness, i.e. if it would have been obvious to the reasonable person, the defendant will be taken to have foreseen it. But the focus of this test is the nature of the defendant's conduct rather than his mental state and it became the subject of major criticism. For example, how was the direction to apply to the defendant who had considered the risk and only continued to act after deciding (wrongly as it would later appear) that no risk existed? In Elliot v C (a minor) (1983) 2 AER 1005, a 14-year-old schoolgirl of low intelligence, who was tired and hungry, inadvertently burned down a garden shed. It was accepted that she did not foresee the risk of fire, and that she had not considered the possible consequences of her action but the court reluctantly followed Caldwell. In the boarder context, the Road Traffic Act 1991 reformed the offence of reckless driving by reverting to the old terminology of dangerous driving, i.e. apparently replacing a mens rea requirement with a fault element requiring dangerousness (see death by dangerous driving for the statutory version of a test of obviousness). In the continuing judicial debate, Lord Keith observed in R v Reid (1992) 3 AER 673 (a reckless driving case, that an absence of something from a person's state of mind is as much part of his or her state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognised risk. Lord Keith stressed that Lord Diplock qualified the model direction as "an appropriate instruction" only, seeking to introduce different standards for different offences. It was further argued that the model direction breached Article 6 of the European Convention on Human Rights in cases involving a minor or other person's of reduced capacity. The requirement is that "everyone is entitled to a fair and public hearing". But, to judge the moral and legal culpability of a child by reference to the understanding and life experience of an adult is irrational and, therefore, unfair. In effect, it imposes strict liability. However, Z and others v United Kingdom (2002) 34 EHRR characterises Article 6 as procedural rather than substantive.

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