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

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    30.  That conclusion is by no means determinative of this appeal. For the decision in R v Caldwell was made more than 20 years ago. Its essential reasoning was unanimously approved by the House in R v Lawrence [1982] AC 510. Invitations to reconsider that reasoning have been rejected. The principles laid down have been applied on many occasions, by Crown Court judges and, even more frequently, by justices. In the submission of the Crown, the ruling of the House works well and causes no injustice in practice. If Parliament had wished to give effect to the intention of the Law Commission it has had many opportunities, which it has not taken, to do so. Despite its power under Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 to depart from its earlier decisions, the House should be very slow to do so, not least in a context such as this.

    31.  These are formidable arguments, deployed by Mr Perry with his habitual skill and erudition. But I am persuaded by Mr Newman QC for the appellants that they should be rejected. I reach this conclusion for four reasons, taken together.

    32.  First, it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication: R v Majewski [1977] AC 443) one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.

    33.  Secondly, the present case shows, more clearly than any other reported case since R v Caldwell, that the model direction formulated by Lord Diplock (see paragraph 18 above) is capable of leading to obvious unfairness. As the excerpts quoted in paragraphs 6-7 reveal, the trial judge regretted the direction he (quite rightly) felt compelled to give, and it is evident that this direction offended the jury's sense of fairness. The sense of fairness of 12 representative citizens sitting as a jury (or of a smaller group of lay justices sitting as a bench of magistrates) is the bedrock on which the administration of criminal justice in this country is built. A law which runs counter to that sense must cause concern. Here, the appellants could have been charged under section 1(1) with recklessly damaging one or both of the wheelie-bins, and they would have had little defence. As it was, jury might have inferred that boys of the appellants' age would have appreciated the risk to the building of what they did, but it seems clear that such was not their conclusion (nor, it would appear, the judge's either). On that basis the jury thought it unfair to convict them. I share their sense of unease. It is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension. Nor, the defendant having been convicted, is the problem cured by imposition of a nominal penalty.

    34.  Thirdly, I do not think the criticism of R v Caldwell expressed by academics, judges and practitioners should be ignored. A decision is not, of course, to be overruled or departed from simply because it meets with disfavour in the learned journals. But a decision which attracts reasoned and outspoken criticism by the leading scholars of the day, respected as authorities in the field, must command attention. One need only cite (among many other examples) the observations of Professor John Smith ([1981] Crim LR 392, 393-396) and Professor Glanville Williams ("Recklessness Redefined" (1981) 40 CLJ 252). This criticism carries greater weight when voiced also by judges as authoritative as Lord Edmund-Davies and Lord Wilberforce in R v Caldwell itself, Robert Goff LJ in Elliott v C [1983] 1 WLR 939 and Ackner LJ in R v Stephen Malcolm R (1984) 79 Cr App R 334. The reservations expressed by the trial judge in the present case are widely shared. The shopfloor response to R v Caldwell may be gauged from the editors' commentary, to be found in the 41st edition of Archbold (1982): paragraph 17-25, pages 1009-1010. The editors suggested that remedial legislation was urgently required.

    35.  Fourthly, the majority's interpretation of "reckless" in section 1 of the 1971 Act was, as already shown, a misinterpretation. If it were a misinterpretation that offended no principle and gave rise to no injustice there would be strong grounds for adhering to the misinterpretation and leaving Parliament to correct it if it chose. But this misinterpretation is offensive to principle and is apt to cause injustice. That being so, the need to correct the misinterpretation is compelling.

    36.  It is perhaps unfortunate that the question at issue in this appeal fell to be answered in a case of self-induced intoxication. For one instinctively recoils from the notion that a defendant can escape the criminal consequences of his injurious conduct by drinking himself into a state where he is blind to the risk he is causing to others. In R v Caldwell it seems to have been assumed (see paragraph 18 above) that the risk would have been obvious to the defendant had he been sober. Further, the context did not require the House to give close consideration to the liability of those (such as the very young and the mentally handicapped) who were not normal reasonable adults. The overruling by the majority of R v Stephenson [1979] QB 695 does however make it questionable whether such consideration would have led to a different result.

    37.  In the course of argument before the House it was suggested that the rule in R v Caldwell might be modified, in cases involving children, by requiring comparison not with normal reasonable adults but with normal reasonable children of the same age. This is a suggestion with some attractions but it is open to four compelling objections. First, even this modification would offend the principle that conviction should depend on proving the state of mind of the individual defendant to be culpable. Second, if the rule were modified in relation to children on grounds of their immaturity it would be anomalous if it were not also modified in relation to the mentally handicapped on grounds of their limited understanding. Third, any modification along these lines would open the door to difficult and contentious argument concerning the qualities and characteristics to be taken into account for purposes of the comparison. Fourth, to adopt this modification would be to substitute one misinterpretation of section 1 for another. There is no warrant in the Act or in the travaux préparatoires which preceded it for such an interpretation.

    38.  A further refinement, advanced by Professor Glanville Williams in his article "Recklessness Redefined" (1981) 40 CLJ 252, 270-271, adopted by the justices in Elliott v C [1983] 1 WLR 939 and commented upon by Robert Goff LJ in that case is that a defendant should only be regarded as having acted recklessly by virtue of his failure to give any thought to an obvious risk that property would be destroyed or damaged, where such risk would have been obvious to him if he had given any thought to the matter. This refinement also has attractions, although it does not meet the objection of principle and does not represent a correct interpretation of the section. It is, in my opinion, open to the further objection of over-complicating the task of the jury (or bench of justices). It is one thing to decide whether a defendant can be believed when he says that the thought of a given risk never crossed his mind. It is another, and much more speculative, task to decide whether the risk would have been obvious to him if the thought had crossed his mind. The simpler the jury's task, the more likely is its verdict to be reliable. Robert Goff LJ's reason for rejecting this refinement was somewhat similar (Elliott v C, page 950).

    39.  I cannot accept that restoration of the law as understood before R v Caldwell would lead to the acquittal of those whom public policy would require to be convicted. There is nothing to suggest that this was seen as a problem before R v Caldwell, or (as noted above in paragraphs 12 and 13) before the 1971 Act. There is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the defendant rarely admits intending the injurious result in question, but the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the defendant did and said at the time. Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant's assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done.

    40.  In his printed case, Mr Newman advanced the contention that the law as declared in R v Caldwell was incompatible with article 6 of the European Convention on Human Rights. While making no concession, he forebore to address legal argument on the point. I need say no more about it.

    41.  For the reasons I have given I would allow this appeal and quash the appellants' convictions. I would answer the certified question obliquely, basing myself on clause 18(c) of the Criminal Code Bill annexed by the Law Commission to its Report "A Criminal Code for England and Wales Volume 1: Report and Draft Criminal Code Bill" (Law Com No 177, April 1989):

    "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."


My Lords,

    42.  I agree with the reasons given by Lord Bingham of Cornhill. I would allow the appeal and answer the certified question as he proposes.


My Lords,

    43.  This appeal raises an important question on the interpretation of section 1(1) of the Criminal Damage Act 1971. It provides:

    "A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence."

The focus of the appeal is on the meaning of the words "being reckless as to whether any such property would be destroyed or damaged". In broad terms, the issue is whether "reckless" in section 1(1) covers only advertent wrongdoing or is wide enough to include inadvertent wrongdoing. In R v Caldwell [1982] AC 341 the House by a 3:2 majority held that the wider interpretation is the correct one. The House followed Caldwell in later decisions. The House is now asked to re-examine the question, to depart from Caldwell, and to rule that the narrower interpretation of section 1(1) is the correct one.

Departing from a House of Lords decision

    44.  The target of the appellant is an ambitious one. The relevant words in section 1(1), taken by themselves, are capable of bearing either the narrower or wider meaning. In these circumstances it could be said that there was in Caldwell a choice to be made, and that choice was made by the requisite majority in favour of the wide view. The conclusion of the House in Caldwell produced a clear rule expressed by Lord Diplock as follows (at p 354):

    ". . . 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."

Lord Diplock also stated (and has always been so understood) that the criterion is the mind of the ordinary prudent adult individual: at page 354. In accordance with Caldwell no allowance is to be made by a jury for the youth or lack mental capacity of the defendant. The clarity of the decision is a factor weighing against departing from it. Moreover, a fair reading of the judgment of Lord Diplock reveals that the House was probably influenced by the consideration that the opposite view could leave beyond the reach of the criminal law wrongdoers who should be punished. If this perception was correct it would be a strong thing to depart from such a view. In combination these factors militate in favour of following Caldwell. A departure from Caldwell could only be justified if compelling legal considerations demand it.

Conclusions in outline

    45.  In my view the very high threshold for departing from a previous decision of the House has been satisfied in this particular case. In summary I would reduce my reasons to three propositions. First, in Caldwell the majority should have accepted without equivocation that before the passing of the 1971 Act foresight of consequences was an essential element in recklessness in the context of damage to property under section 51 of the Malicious Damage Act 1861. Secondly, the matrix of the immediately preceding Law Commission recommendations shows convincingly that the purpose of section 1 of the 1971 Act was to replace the out of date language of "maliciously" causing damage by more modern language while not changing the substance of the mental element in any way. Foresight of consequences was to remain an ingredient of recklessness in regard to damage to property. Thirdly, experience has shown that by bringing within the reach of section 1(1) cases of inadvertent recklessness the decision in Caldwell became a source of serious potential injustice which cannot possibly be justified on policy grounds. These three propositions require some explanation.

The pre-existing law

    46.  In enacting section 1 of the 1971 Act Parliament must be presumed to have been aware of the relevant pre-existing law. The best evidence of the state of the law was the reserved judgment of the Court of Criminal Appeal in R v Cunningham [1957] 2 QB 396. Giving the judgment of the Court of Appeal Byrne J said (at pp 399-400):

    "We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C S Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p 186 of the 16th edition edited by Mr J W Cecil Turner and published in 1952: 'In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (ie the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards "the person injured". The same principle is repeated by Mr Turner in his 10th edition of Russell on Crime at p 1592.' (Emphasis added)

This was a clear statement that under section 51 of the Malicious Damage Act 1861 foresight of the consequences of an act was necessary. It would without doubt have been the basis on which the parliamentary draftsman would have prepared the provision in the Bill which became section 1 of the 1971 Act. In substance the reference to Professor Kenny's views was correct. His explanation had then been the traditional view for at least 70 years. The pedigree and consistency of this interpretation would also have been known at the time of the drafting and enactment of the 1971 Act. As Lord Edmund-Davies pointed out in his powerful dissenting judgment in Caldwell (assented to by Lord Wilberforce) Lord Diplock was unnecessarily dismissive of the views of the distinguished author who contributed so much to the rational explanation of the criminal law. But the real basis of Lord Diplock's judgment in Caldwell was that the meaning of "maliciously" under section 51 of the 1861 Act "has no bearing on the meaning of 'reckless' in section 1 of the Criminal Damage Act 1971": page 351G. This is the foundation of the view of the majority. It must now be examined in the light of the internal and external aids to the interpretation of section 1.

The purpose of section 1 of the 1971 Act

    47.  Lord Diplock's formulation leaves no room, in the great majority of cases, for any inquiry into the defendant's state of mind. In a withering contemporary criticism Professor John Smith [1981] Crim LR 393, 394) explained with precision what Lord Diplock's meaning of recklessness involved:

    ". . . 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.'

    Whether there is an 'obvious' risk can be answered only by considering whether any ordinary, prudent person would have realised there was a risk; and, if he would, it makes no difference what the defendant thought, because he is guilty whether he realised there was a risk or not. Only very exceptionally will there be any room for any inquiry into the actual state of mind of the defendant. If he considered the question whether there was a risk and decided wrongly, that there was not, then he would not be reckless within the new definition. Such cases are likely to be extremely rare. In the absence of any evidence by the defendant that he had performed this mental operation, it seems the judge need not direct the jury about it."

Unquestionably, Caldwell was a radical departure from the law as previously understood.

    48.  The question is: on what grounds did the majority infer that it represented the meaning which Parliament intended? Lord Diplock, at p 351, pointed out that, in accordance with the long title, the purpose of the 1971 Act was "to revise the law" (he italicised the word "revise"). Lord Diplock said that, at p 352, he could "see no reason why Parliament when it decided to revise the law … should go out of its way to perpetuate fine and impracticable distinctions." This reasoning attributes to Parliament a remedial intent, viz to change the mental element of the offence by including cases of inadvertent wrong doing.

    49.  What are the grounds for this assumption? It is true that the 1971 Act revised the law in a number of respects. This is, however, a neutral fact. Apart from replacing the word "maliciously" by more modern language there is no indication in section 1, and in the rest of the 1971 Act, that Parliament intended to embark on a revision of the mental element of the offence. No reliance was placed in Caldwell on any external aids supporting the interpretation. There are none. In its own terms the majority reasoning in Caldwell rests on fragile foundations.

    50.  The decisive factor is, however, that there was overwhelming evidence that Parliament did not intend to alter the existing meaning of recklessness in regard to damage to property. That follows from the fact that, as far as the mental element is concerned, the Parliament was implementing Law Commission reports. In plain terms the recommendation of the Law Commission was that subject to replacing "maliciously" by more contemporary language the mental element of the offence should remain the same. This material was published and was therefore available to the House in Caldwell: Lord Edmund Davies explained in outline the effect of it. In his already cited note Professor John Smith described in detail the Law Commission materials which show convincingly there was no intention to change the mental element of the offence. It is unnecessary for me to marshal these materials again. The evidence is all one way.

    51.  The conclusion is inescapable: Caldwell adopted an interpretation of section 1 of the 1971 Act which was beyond the range of feasible meanings.

Justice and policy

    52.  In the case before the House the two boys were 11 and 12 respectively. Their escapade of camping overnight without their parents' permission was something that many children have undertaken. But by throwing lit newspapers under a plastic wheelie bin they caused £1m of damage to a shop. It is, however, an agreed fact on this appeal that the boys thought there was no risk of the fire spreading in the way it eventually did. What happened at trial is highly significant. The jury were perplexed by the Caldwell directions which compelled them to treat the boys as adults and to convict them. The judge plainly thought this approach was contrary to common sense but loyally applied the law as laid down in Caldwell. The view of the jurors and the judge would be widely shared by reasonable people who pause to consider the matter. The only answer of the Crown is that where unjust convictions occur the judge can impose a lenient sentence. This will not do in a modern criminal justice system. Parliament certainly did not authorise such a cynical strategy.

    53.  Ignoring the special position of children in the criminal justice system is not acceptable in a modern civil society. In 1990 the United Kingdom ratified the Convention on the Rights of the Child which entered into force on 15 January 1992. Article 40.1 provides:

    "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." (Emphasis added)

This provision imposes both procedural and substantive obligations on state parties to protect the special position of children in the criminal justice system. For example, it would plainly be contrary to article 40.1 for a state to set the age of criminal responsibility of children at, say, five years. Similarly, it is contrary to article 40.1 to ignore in a crime punishable by life imprisonment, or detention during Her Majesty's pleasure, the age of a child in judging whether the mental element has been satisfied. It is true that the Convention became binding on the United Kingdom after Caldwell was decided. But the House cannot ignore the norm created by the Convention. This factor on its own justified a reappraisal of Caldwell.

    54.  If it is wrong to ignore the special characteristics of children in the context of recklessness under section 1 of the 1971 Act, an adult who suffers from a lack of mental capacity or a relevant personality disorder may be entitled to the same standard of justice. Recognising the special characteristics of children and mentally disabled people goes some way towards reducing the scope of section 1 of the 1971 Act for producing unjust results which are inherent in the objective mould into which the Caldwell analysis forced recklessness. It does not, however, restore the correct interpretation of section 1 of the 1971 Act. The accepted meaning of recklessness involved foresight of consequences. This subjective state of mind is to be inferred "by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances": see Lord Edmund-Davies, citing section 8 of the Criminal Justice Act 1967; at 358E. That is what Parliament intended by implementing the Law Commission proposals.

    55.  This interpretation of section 1 of the 1971 Act would fit in with the general tendency in modern times of our criminal law. The shift is towards adopting a subjective approach. It is generally necessary to look at the matter in the light of how it would have appeared to the defendant. Like Lord Edmund-Davies I regard section 8 of the Criminal Justice Act 1967, as of central importance. There is, however, also a congruence of analysis appearing from decisions of the House. In R v Morgan [1976] AC 182 the House ruled that a defence of mistake must be honestly rather than reasonably held. In Beckford v The Queen [1988] AC 130, 145 per Lord Griffiths, the House held that self defence permits a defendant to use such force as is reasonable in the circumstances as he honestly believed them to be. B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 concerned the offence contrary to section 1(1) of the Children Act 1961 (inciting a girl under 14 to commit an act of gross indecency). The House held that the accused's honest belief that a girl was over 14 need not be based on reasonable grounds. Lord Nicholls of Birkenhead observed that (at p 462):

    "Considered as a matter of principle, the honest belief approach must be preferable. By definition the mental element in a crime is concerned with a subjective state of mind, such as intent or belief."

To same effect is R v K [2002] 1 AC 462 where it was held that while a girl under the age of 16 cannot in law consent to an indecent assault, it is a defence if the defendant honestly believed she was over 16. It is true that the general picture is not entirely harmonious. Duress requires reasonable belief: see Lord Lane CJ in R v Graham (Paul) [1982] 1 WLR 294, 300, approved by the House of Lords in Regina v Howe [1987] AC 417; R v Martin [1989] 1 All ER 652. Duress is a notoriously difficult corner of the law. However, in Graham Lord Lane CJ, at p 300, stated that in judging the accused's response the test is:

    "… have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part in the offence." (Emphasis added)

The age and sex of the defendant (but possibly no other characteristics) are relevant to the cogency of the threat: R v Bowen [1997] 1 WLR 372: In regard to provocation a wider view of the impact on defendant has prevailed: R v Smith (Morgan) [2001] 1 AC 146 (by a 3:2 majority).

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