Regina v. G and another (Appellants) (On Appeal from the Court of Appeal (Criminal Division))
56. These developments show that what Lord Diplock in Caldwell described an "esoteric meaning" of recklessness (353H) was also consistent with the general trend of the criminal law.
Conclusion on Caldwell
57. The surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world. With the benefit of hindsight the verdict must be that the rule laid down by the majority in Caldwell failed this test. It was severely criticized by academic lawyers of distinction. It did not command respect among practitioners and judges. Jurors found it difficult to understand: it also sometimes offended their sense of justice. Experience suggests that in Caldwell the law took a wrong turn.
58. That brings me to the question whether the subjective interpretation of recklessness might allow wrongdoers who ought to be convicted of serious crime to escape conviction. Experience before Caldwell did not warrant such a conclusion. In any event, as Lord Edmund-Davies explained, if a defendant closes his mind to a risk he must realise that there is a risk and, on the evidence, that will usually be decisive: 358D. One can trust the realism of trial judges, who direct juries, to guide juries to sensible verdicts and juries can in turn be relied on to apply robust common sense to the evaluation of ridiculous defences. Moreover, the endorsement by Parliament of the Law Commission proposals could not seriously have been regarded as a charter for the acquittal of wrongdoers.
59. In my view the case for departing from Caldwell has been shown to be irresistible.
60. I agree with the reasons given by Lord Bingham of Cornhill. I have nothing to add to his observations on self-induced intoxication.
61. I would also make the orders proposed by Lord Bingham of Cornhill.
62. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn. I agree with them, and for the reasons which they give I too would allow this appeal.
LORD RODGER OF EARLSFERRY
63. I have had the privilege of reading the speech of my noble and learned friend Lord Bingham of Cornhill in draft. As I explain below, I was initially doubtful whether it would be proper for your Lordships' House to overrule R v Caldwell  AC 341, especially when it had previously declined an express invitation to do so. In a very different context Scalia J formulated some of the kinds of issues I had in mind in Part I of his characteristically forthright dissenting opinion in Lawrence v Texas 539 US ____ (2003). But I have reached the clear view that, whatever the intrinsic merits or demerits of the concept of recklessness which Lord Diplock espoused, Parliament did not intend the word "reckless" in section 1 of the Criminal Damage Act 1971 ("the 1971 Act") to bear the meaning he gave it. Moreover, his speech has proved notoriously difficult to interpret and those difficulties would not have ended with any refinements which your Lordships might have made to the decision. Indeed those refinements themselves would almost inevitably have prompted further questions and appeals. In these circumstances the preferable course is to overrule Caldwell.
64. There is nothing on the face of the 1971 Act - and Lord Diplock certainly points to nothing - to indicate that in enacting this particular statute Parliament intended to innovate upon the concept of recklessness as it had been understood to apply in English law immediately prior to 1971. So the natural assumption is that Parliament was using the term in its contemporary legal sense. Section 1(1) and (2) correspond precisely to provisions in the draft bill attached to the report of the Law Commission on Offences of Damage to Property (Law Com No 29). Nothing in that report suggests that the Commission had intended their draft bill to incorporate a new notion of recklessness. Indeed, as Lord Bingham of Cornhill has shown, the indications are the other way. Although in Caldwell Lord Edmund-Davies referred to the Law Commission report, Lord Diplock did not - perhaps because it was not cited or else on the view that, at most, it would show the meaning that the Law Commission had attached to recklessness and it was up to the judges and no-one else to decide what the words in the statute meant. I refer to his well-known speech in Black-Clawson Ltd v Papierwerke Waldhof-Aschaffenburg AG  AC 591, especially at pp 636H - 637 E. None the less in this case the Law Commission report at least indicates the scope of the legislative changes in contemplation and, in that way, tends to confirm the interpretation that I would be disposed to adopt in any event.
65. It is no secret that, for a long time, many of the leading academic writers on English criminal law have been "subjectivists". By that I mean, at the risk of gross over-simplification, that they have believed that the criminal law should punish people only for those consequences of their acts which they foresaw at the relevant time. Those who subscribe to that philosophy will tend to approve the concept of recklessness in R v Cunningham  2 QB 396. The late Glanville Williams and the late Sir John Smith, who were members of the influential Criminal Law Revision Committee, were two of the most distinguished proponents of such views.
66. Glanville Williams (as well as Edmund-Davies LJ) was also a member of the working party set up by the Law Commission to examine the general principles of the criminal law. In June 1970 they produced a working paper on the mental element in crime. And, not surprisingly, on the matter of recklessness, at pp 48 - 51, it espoused the subjectivist standpoint. Three of the five Law Commissioners also sat on the working party. A month after publishing that working paper, the Law Commission published their report on property offences. In these circumstances it would have been surprising, to say the least, if they had intended their draft bill to do other than incorporate the concept of recklessness that had been developed in Cunningham and subsequent cases. Sitting in Caldwell Lord Edmund-Davies was well placed to appreciate all these factors.
67. The same view is reflected, of course, in the definition of recklessness in clause 18(c) of the draft code of criminal law published by the Law Commission in 1989 (Report No 177). Again this is scarcely surprising since much of the work was done by a team of academic lawyers that included Sir John Smith. It goes without saying that there are powerful arguments in favour of the view which the Law Commission favoured.
68. On the other hand it is equally clear that other views are not only possible but have actually been adopted by English judges at different times over the centuries. Their judgments reveal many strands of thinking: J Horder, "Two Histories and Four Hidden Principles of Mens Rea" (1997) 113 LQR 95. There is therefore no reason to treat the concept of recklessness expounded in Cunningham either as being the quintessence of the historic English criminal law on the point or as necessarily providing the best solution in all circumstances. Indeed in R v Stephenson  QB 695, a case on section 1(1) of the 1971 Act, Geoffrey Lane LJ recognised that the subjective approach was problematical in certain situations. Having made it quite clear that in his view the test of recklessness under the 1971 Act remained subjective and that the knowledge or appreciation of risk of some damage must have entered the defendant's mind, he commented, at p 704B - C:
In Caldwell just the kind of problem envisaged by Geoffrey Lane LJ arose: the defendant said that he was so drunk that it did not occur to him that there might be people in the hotel whose lives might be endangered if he set fire to it. Part of what Lord Diplock did to confront the kind of difficulty identified by Geoffrey Lane LJ was to adopt a wider definition of recklessness that covered culpable inadvertence. In so doing, as the House now holds, he misconstrued the terms of the 1971 Act.
69. It does not follow, however, that Lord Diplock's broader concept of recklessness was undesirable in terms of legal policy. On the contrary, there is much to be said for the view that, if the law is to operate with the concept of recklessness, then it may properly treat as reckless the man who acts without even troubling to give his mind to a risk that would have been obvious to him if he had thought about it. This approach may be better suited to some offences than to others. For example, in the context of reckless driving the House endorsed and re-endorsed a more stringent version: R v Lawrence (Stephen)  AC 510; R v Reid  1 WLR 793. I refer in particular to the discussion of the policy issues by Lord Goff of Chieveley in Reid at pp 808H - 812C. Moreover, the opposing view, that only advertent risk taking should ever be included within the concept of recklessness in criminal law, seems to be based, at least in part, on the kind of thinking that the late Professor Hart demolished in his classic essay, "Negligence, Mens Rea and Criminal Responsibility" (1961), reprinted in H L A Hart, Punishment and Responsibility (1968), p 136.
70. Because the decision in Caldwell involved this legitimate choice between two legal policies, I was initially doubtful whether it would be appropriate for the House to overrule it. An alternative way to allow the appeal by re-analysing Lord Diplock's speech and overruling Elliott v C  1 WLR 939 might well have been found. But, for the reasons that I have already indicated, I have come to share your Lordships' view that we should indeed overrule Caldwell and set the law back on the track that Parliament originally intended it to follow. If Parliament now thinks it preferable for the 1971 Act to cover culpably inadvertent as well as advertent wrongdoers, it can so enact. The Law Commission recognised that, if codifying the law, Parliament might wish to adopt that approach: A Criminal Code for England and Wales Vol 2 Commentary (LC No 177) paras 8.21 and 17.6.