Judgments - Regina v. G and another (Appellants) (On Appeal from the Court of Appeal (Criminal Division))

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    12.  In its second programme of law reform the Law Commission, then under the chairmanship of Scarman J, envisaged the codification of the criminal law. As part of that project it examined a number of specific offences, among them the law of malicious damage, on which it published its Working Paper No 23 in April 1969. This described the Malicious Damage Act 1861, despite five later amending statutes, as "unsatisfactory" (paragraph 2). In a brief statistical introduction the Law Commission drew attention (in paragraph 9) to the prevalence of malicious damage offences among the youngest criminal age group (the 10 to 14 year olds) as well as among other juveniles, and to the fact that more than half of those convicted of the most serious offence (arson) were under 21. In a section on "The Mental Element" the Law Commission referred to a working party which was formulating draft propositions on the mental element in crime and observed (in paragraph 31):

    "For the present purpose, we assume that the traditional elements of intention, knowledge and recklessness (in the sense of foresight and disregard of consequences or awareness and disregard of the likelihood of the existence of circumstances) will continue to be required for serious crime."

In paragraph 33 of the working paper the Law Commission identified "intent to do the forbidden act or recklessness in relation to its foreseen consequences" as the "essential mental element in the existing malicious damage offences" and quoted with the apparent approval the passage from R v Cunningham [1957] 2 QB 396 which is set out in paragraph 10 above. The Law Commission considered that the word "maliciously" should be avoided (paragraph 34) and favoured its replacement by "wilful or reckless" (paragraph 64). It proposed (paragraph 68) that the new group of offences should require "traditional mens rea, in the sense of intention or recklessness in relation to prescribed consequences and, where appropriate, knowledge or recklessness in relation to prescribed circumstances". The working paper does not suggest that the law as then understood was thought to be leading to unjustified acquittals. In a published comment on the working paper, Professor Brian Hogan wrote ([1969] Crim LR 283, 288):

    "What is implicit in 'maliciously' in the present law will appear explicitly as intention or recklessness in the new code. No doubt the meanings ascribed to intention and recklessness in the codification of the general principles will be applied mutatis mutandis to offences of damage to property."

    13.  In its Report on Offences of Damage to Property (Law Com. No 29) published in July 1970, the Law Commission broadly followed, in respects relevant to this appeal, the lines of the working paper. On the mental element of criminal damage offences the Law Commission said (in paragraph 44):

    "44.  In the area of serious crime (in contrast to offences commonly described as 'regulatory offences' in which the test of culpability may be negligence, or even a test founded on strict liability) the elements of intention, knowledge or recklessness have always been required as a basis of liability. The tendency is to extend this basis to a wider range of offences and to limit the area of offences where a lesser mental element is required. We consider, therefore, that the same elements as are required at present should be retained, but that they should be expressed with greater simplicity and clarity. In particular, we prefer to avoid the use of such a word as 'maliciously', if only because it gives the impression that the mental element differs from that which is imposed in other offences requiring traditional mens rea. It is evident from such cases as R v Cunningham and R v Mowatt that the word can give rise to difficulties of interpretation. Furthermore, the word 'maliciously' conveys the impression that some ill-will is required against the person whose property is damaged. ….."

It does not appear from the report that the Law Commission's consultation had elicited any complaint that the existing law was unduly favourable to defendants. Annexed to the report was a draft bill: in this clause 1(1) and (2) were exactly as enacted in the 1971 Act, but what became section 1(3) was omitted. On 16 June 1970, a month before this report was published, the Law Commission had published its working paper No 31 (General Principles: The Mental Element in Crime). In that working paper a definition of recklessness was proposed (on page 48):

    "A person is reckless if,

    (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and

    (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present."

In the 1971 Act as passed all except six sections of the Malicious Damage Act 1861, a lengthy Act, were repealed, very much as the Law Commission had proposed.

    14.  Enactment of the 1971 Act did not at once affect the courts' approach to the causing of unintentional damage. In R v Briggs (Note) [1977] 1 WLR 605 the defendant had been charged under section 1(1) of the 1971 as a result of damage caused to a car and the appeal turned on the trial judge's direction on the meaning of "reckless". The appeal succeeded since the judge had not adequately explained that the test to be applied was that of the defendant's state of mind. The Court of Appeal (James LJ, Kenneth Jones and Pain JJ) ruled (at page 608):

    "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."

This definition was adopted but modified in R v Parker (Daryl) [1977] 1 WLR 600 where the defendant in a fit of temper had broken a telephone by smashing the handset violently down on to the telephone unit and had been convicted under section 1(1) of the 1971 Act. The court (Scarman and Geoffrey Lane LJJ and Kenneth Jones J) readily followed R v Briggs (Note) (page 603) but held that the defendant had been fully aware of all the circumstances (page 603) and that if (page 604)

    "he did not know, as he said he did not, that there was some risk of damage, he was, in effect, deliberately closing his mind to the obvious - the obvious being that damage in these circumstances was inevitable."

The court accordingly modified the Briggs definition in this way (page 604):

    "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."

This modification made no inroad into the concept of recklessness as then understood since, as pointed out by Professor Glanville Williams, Textbook of Criminal Law (1978), page 79, cited by Lord Edmund-Davies in his dissenting opinion in R v Caldwell [1982] AC 341, 358,

    "A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter."

    15.  The meaning of "reckless" in section 1(1) of the 1971 Act was again considered by the Court of Appeal (Geoffrey Lane LJ, Ackner and Watkins JJ) in R v Stephenson [1979] QB 695. The defendant had tried to go to sleep in a hollow he had made in the side of a haystack. Feeling cold, he had lit a fire in the hollow which had set fire to the stack and damaged property worth £3500. He had been charged and convicted under section 1(1) and (3) of the 1971 Act. The defendant however had a long history of schizophrenia and expert evidence at trial suggested that he may not have had the same ability to foresee or appreciate risks as the mentally normal person. Giving the reserved judgment of the court, Geoffrey Lane LJ (at pages 700-703) reviewed the definition of recklessness in the Law Commission's Working Paper No 31 (see paragraph 13 above), the acceptance of that definition by the leading academic authorities and the House of Lords' adoption of a subjective meaning of recklessness in tort in Herrington v British Railways Board [1972] AC 877. The court (at page 703) thought it fair to assume that those who were responsible for drafting the 1971 Act were intending to preserve its legal meaning as described in Kenny and expressly approved in R v Cunningham [1957] 2 QB 396. The court then continued:

    "What then must the prosecution prove in order to bring home the charge of arson in circumstances such as the present? They must prove that (1) the defendant deliberately committed some act which caused the damage to property alleged or part of such damage; (2) the defendant had no lawful excuse for causing the damage; these two requirements will in the ordinary case not be in issue; (3) the defendant either (a) intended to cause the damage to the property, or (b) was reckless as to whether the property was damaged or not. A man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act. It is however not the taking of every risk which could properly be classed as reckless. The risk must be one which it is in all the circumstances unreasonable for him to take. Proof of the requisite knowledge in the mind of the defendant will in most cases present little difficulty. The fact that the risk of some damage would have been obvious to anyone in his right mind in the position of the defendant is not conclusive proof of the defendant's knowledge, but it may well be and in many cases doubtless will be a matter which will drive the jury to the conclusion that the defendant himself must have appreciated the risk."

The appeal was accordingly allowed. But the court recognised that what it called the subjective definition of recklessness produced difficulties. One of these was where a person by self-induced intoxication deprived himself of the ability to foresee the risks involved in his actions. The court suggested that a distinction was to be drawn between crimes requiring proof of specific intent and those, such as offences under section 1(1) of the 1971 Act, involving no specific intent:

    "Accordingly it is no defence under the Act of 1971 for a person to say that he was deprived by self-induced intoxication of the ability to foresee or appreciate an obvious risk" (page 704)."

    16.  In the 1979 (40th) edition of Archbold Pleading, Evidence and Practice in Criminal Cases, on which jury directions were no doubt routinely based at the time, the better view was said (page 958, paragraph 1443c) to be

    "that whereas 'intent' requires a desire for consequences or foresight or probable consequences, 'reckless' only requires foresight of possible consequences coupled with an unreasonable willingness to risk them."

R v Caldwell

    17.  R v Caldwell [1982] AC 341 was a case of self-induced intoxication. The defendant, having a grievance against the owner of the hotel where he worked, got very drunk and set fire to the hotel where guests were living at the time. He was indicted upon two counts of arson. The first and more serious count was laid under section 1(2) of the 1971 Act, the second count under section 1(1). He pleaded guilty to the second count but contested the first on the ground that he had been so drunk at the time that the thought there might be people in the hotel had never crossed his mind. His conviction on count 1 was set aside by the Court of Appeal which certified the following question:

    "Whether evidence of self-induced intoxication can be relevant to the following questions - (a) Whether the defendant intended to endanger the life of another; and (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."

In submitting that the two questions should be answered (a) Yes and (b) No, counsel for the Crown did not challenge the correctness of R v Briggs (Note) [1977] 1 WLR 605 or R v Stephenson [1979] QB 695.

    18.  In a leading opinion with which Lord Keith of Kinkel and Lord Roskill agreed, but from which Lord Wilberforce and Lord Edmund-Davies dissented, Lord Diplock discounted Professor Kenny's statement of the law approved in R v Cunningham [1957] 2 QB 396 (see paragraph 10 above) as directed to the meaning of "maliciously" in the 1861 Act and having no bearing on the meaning of "reckless" in the 1971 Act: page 351. It was, he held, no less blameworthy for a man whose mind was affected by rage or excitement or drink to fail to give his mind to the risk of damaging property than for a man whose mind was so affected to appreciate that there was a risk of damage to property but not to appreciate the seriousness of the risk or to trust that good luck would prevent the risk occurring: page 352. He observed :

    "My Lords, I can see no reason why Parliament when it decided to revise the law as to offences of damage to property should go out of its way to perpetuate fine and impracticable distinctions such as these, between one mental state and another. One would think that the sooner they were got rid of, the better."

Reference was made to R v Briggs (Note) [1977] 1 WLR 605, R v Parker (Daryl) [1977] 1 WLR 600 and R v Stephenson [1979] QB 695, but Lord Diplock saw no warrant for assuming that the Act of 1971, whose declared purpose was to revise the law of damage to property, intended "reckless" to be interpreted as "maliciously" had been: page 353. He preferred the ordinary meaning of "reckless" which (pages 353-354):

    "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."

To decide whether a person had been reckless whether harmful consequences of a particular kind would result from his act it was necessary to consider the mind of "the ordinary prudent individual" (page 354). In a passage which has since been taken to encapsulate the law on this point, and which has founded many jury directions (including that in the present case) Lord Diplock then said (at page 354):

    "In my opinion, a person charged with an offence under section 1(1) of the Criminal Damage Act 1971 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. That would be a proper direction to the jury; cases in the Court of Appeal which held otherwise should be regarded as overruled."

On the facts Lord Diplock concluded that the defendant's unawareness, owing to his self-induced intoxication, of the risk of endangering the lives of hotel residents was no defence if that risk would have been obvious to him had he been sober (page 355). He held that evidence of self-induced intoxication was relevant to a charge under section 1(2) based on intention but not to one based on recklessness (page 356).

    19.  In his dissenting opinion Lord Edmund-Davies expressed "respectful, but profound, disagreement" with Lord Diplock's dismissal of Professor Kenny's statement which was "accurate not only in respect of the law as it stood in 1902 but also as it has been applied in countless cases ever since, both in the United Kingdom and in other countries where the common law prevails" (page 357). Lord Edmund-Davies drew attention to the Law Commission's preparation of the 1971 Act and its definition of recklessness in Working Paper No 31 (pages 357-358) and continued:

    "It was surely with this contemporaneous definition and the much respected decision of R v Cunningham [1957] 2 QB 396 in mind that the draftsman proceeded to his task of drafting the Criminal Damage Act 1971."

He observed (page 358):

    "In the absence of exculpatory factors, the defendant's state of mind is therefore all-important where recklessness is an element in the offence charged, and section 8 of the Criminal Justice Act 1967 has laid down that:

    'A court or jury, in determining whether a person has committed an offence,?(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.'."

Lord Edmund-Davies differed from the majority on the relevance of evidence of self-induced intoxication: in his opinion such evidence was relevant to a charge under section 1(2) whether the charge was based on intention or recklessness (page 361).

R v Lawrence (Stephen)

    20.  Judgment was given by the House in R v Lawrence (Stephen) [1982] AC 510 on the same day as R v Caldwell [1982] AC 341, although only two members (Lord Diplock and Lord Roskill) were party to both decisions. The defendant had ridden a motor cycle along an urban street after nightfall and had collided with and killed a pedestrian He had been charged and convicted under section 1 of the Road Traffic Act 1972 which made it an offence to cause the death of another person by driving a motor vehicle on a road recklessly. His appeal had succeeded on the ground of an inadequate direction to the jury. The issue on appeal to the House concerned the mental element in a charge of reckless driving.

    21.  Lord Hailsham of St Marylebone LC, agreeing with Lord Diplock (page 516) and with the majority in R v Caldwell (page 521), understood recklessness to evince "a state of mind stopping short of deliberate intention, and going beyond mere inadvertence" (page 520). Lord Diplock rehearsed the history of motoring offences based on recklessness beginning with section 1 of the Motor Car Act 1903 and applied essentially the same test as laid down in R v Caldwell, by reference to the "ordinary prudent individual" (page 526). He formulated an appropriate jury direction to the same effect, mutatis mutandis, as that in R v Caldwell (pages 526-527). But he added (at page 527):

    "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."

Lord Fraser of Tullybelton, Lord Roskill and Lord Bridge of Harwich agreed with Lord Hailsham and Lord Diplock.

Later cases

    22.  The decisions in R v Caldwell and R v Lawrence (Stephen) were applied by the House (Lord Diplock, Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Brightman) in R v Miller [1983] 2 AC 161, although subject to a qualification germane to the facts of that case but not to the facts of the present case (page 179).

    23.  In Elliott v C [1983] 1 WLR 939 the defendant was a 14-year old girl of low intelligence who had entered a shed in the early morning, poured white spirit on the floor and set it alight. The resulting fire had flared up and she had left the shed, which had been destroyed. She was charged under section 1(1) of the 1971 Act and at her trial before justices the prosecution made plain that the charge was based not on intention but on recklessness. The justices sought to apply the test laid down in R v Caldwell but inferred that in his reference to "an obvious risk" Lord Diplock had meant a risk which was obvious to the particular defendant. The justices acquitted the defendant because they found that the defendant had given no thought at the time to the possibility of there being a risk that the shed and contents would be destroyed, and this risk would not have been obvious to her or appreciated by her if she had thought about the matter (page 945). The prosecutor's appeal was allowed. Glidewell J, giving the first judgment, accepted the submission (pages 945-947) that:

    "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."

Robert Goff LJ felt constrained by the decisions of the House in R v Caldwell, R v Lawrence (Stephen) and R v Miller to agree, but he expressed his unhappiness in doing so and plainly did not consider the outcome to be just. A petition for leave to appeal against this decision was dismissed by an appeal committee.

    24.  The defendant in R v Stephen Malcolm R (1984) 79 Cr App R 334 had thrown petrol bombs at the outside wall of the bedroom of a girl who he believed had informed on him in relation to a series of burglaries. He had admitted throwing the bombs but claimed he had done so to frighten the girl and without realising that if a bomb had gone through the window it might have killed her. He was charged with arson under section 1(2) of the 1971 Act, on the basis of recklessness. At trial, it was submitted on the defendant's behalf that when considering recklessness the jury could only convict him if he did an act which created a risk to life obvious to someone of his age and with such of his characteristics as would affect his appreciation of the risk (page 337). On the trial judge ruling against that submission the defendant changed his plea and the issue in the Court of Appeal (Ackner LJ, Bristow and Popplewell JJ) was whether the ruling had been correct. The court held that it had: if the House had wished to modify the R v Caldwell principle to take account of, for instance, the age of the defendant, the opportunity had existed in Elliott v C [1983] 1 WLR 939 and it had not been taken. Although concerned at the principle it was required to apply, the court had little doubt that on the facts of the case the answer would have been the same even if the jury had been able to draw a comparison with what a boy of the defendant's age would have appreciated.

    25.  On his appeal to the House (Lord Keith of Kinkel, Lord Roskill, Lord Ackner, Lord Goff of Chieveley and Lord Browne-Wilkinson) in R v Reid [1992] 1 WLR 793 the defendant, convicted of causing death by reckless driving contrary to section 1 of the Road Traffic Act 1972, later re-enacted in section 1 of the Road Traffic Act 1988, asked the House to reconsider its decision in R v Lawrence (Stephen) [1982] AC 510 on which the trial judge's jury direction had been based. The House unanimously affirmed its earlier decision as correct in principle for essentially the reasons which Lord Diplock had given. Lord Keith, however, accepted (at page 796) that Lord Diplock's suggested jury direction might call for modification or addition:

    "where the driver acted under some understandable and excusable mistake or where his capacity to appreciate risks was adversely affected by some condition not involving fault on his part. There may also be cases where the driver acted as he did in a sudden dilemma created by the actions of others."

Lord Ackner (page 806) drew attention to Lord Diplock's acceptance that "regard must be given to any explanation [the defendant] gives as to his state of mind which may displace the inference" (see paragraph 21 above) and commented:

    "I read this as no more than a cautionary instruction to the jury that, while it would be open to them at first sight to find that the accused was driving recklessly from the mere manner of his driving, if it shows a clear disregard for the lives or safety of others without any explanation for this conduct, yet before reaching any firm conclusions they must have regard to any explanation which accounts for his conduct. In short, they must have regard to all the available evidence."

Lord Ackner (page 805), Lord Goff (page 807) and my noble and learned friend Lord Browne-Wilkinson (pages 816-817) all, with varying degrees of emphasis, made plain that their observations were directed to recklessness in the context of driving and not to recklessness in the context of section 1 of the 1971 Act or any other context.

    26.  In R v Coles [1995] 1 Cr App R 157 a 15 year old defendant convicted under section 1(2) of the 1971 Act on the basis of recklessness again challenged, unsuccessfully, the rule laid down by Lord Diplock in R v Caldwell [1982] AC 341. Since recklessness was to be judged by the standard of the reasonable prudent man, it followed that expert evidence of the defendant's capacity to foresee the risks which would arise from his setting fire to hay in a barn had been rightly rejected.

    27.  In the present case the Court of Appeal (Dyson LJ, Silber J and His Honour Judge Beaumont QC) reviewed the authorities but was in no doubt that the Caldwell test had been rightly applied: [2002] EWCA Crim 1992, [2003] 3 AllER 206, paragraph 18. It acknowledged that the Caldwell test had been criticised and had not been applied in a number of Commonwealth jurisdictions (paragraph 18) and saw great force in these criticisms (paragraph 23) but held that it was not open to the Court of Appeal to depart from it.

Conclusions

    28.  The task confronting the House in this appeal is, first of all, one of statutory construction: what did Parliament mean when it used the word "reckless" in section 1(1) and (2) of the 1971 Act? In so expressing the question I mean to make it as plain as I can that I am not addressing the meaning of "reckless" in any other statutory or common law context. In particular, but perhaps needlessly since "recklessly" has now been banished from the lexicon of driving offences, I would wish to throw no doubt on the decisions of the House in R v Lawrence [1982] AC 510 and R v Reid [1992] 1 WLR 793.

    29.  Since a statute is always speaking, the context or application of a statutory expression may change over time, but the meaning of the expression itself cannot change. So the starting point is to ascertain what Parliament meant by "reckless" in 1971. As noted above in paragraph 13, section 1 as enacted followed, subject to an immaterial addition, the draft proposed by the Law Commission. It cannot be supposed that by "reckless" Parliament meant anything different from the Law Commission. The Law Commission's meaning was made plain both in its Report (Law Com No 29) and in Working Paper No 23 which preceded it. These materials (not, it would seem, placed before the House in R v Caldwell) reveal 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] 2 QB 396 and Professor Kenny had given to the former. In treating this authority as irrelevant to the construction of "reckless" the majority fell into understandable but clearly demonstrable error. No relevant change in the mens rea necessary for proof of the offence was intended, and in holding otherwise the majority misconstrued section 1 of the Act.

 
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