Mens Rea - Recklessness Flashcards
R v Cunningham (1957) 41 Crim App 155
D went into the cellar of a house that was converted into two. He tore the gas meter from the wall and from its pipes and stole money from it. He did not turn off the gas at a stop tap nearby and gas escaped, seeped through the dividing wall of the cellar and partially asphyxiated his prospective mother-in-law, who was asleep in her bedroom. D was charged, with having unlawfully and maliciously caused W to take a certain noxious thing, coal gas, so as thereby to endanger her life.
Principle – The correct test is whether D foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. This is so, even if D did not intend the injury to V. [Cunningham Recklessness] The word “maliciously” in a statutory crime means foresight of consequence, it does not mean “wicked”. It can be either an actual intention to do the particular kind of harm, or recklessness whether such harm should occur or not. It does not it require, any ill-will towards the person injured. D was not guilty (on a misdirection)
MPC v Caldwell [1982] AC 341 House of Lords
The appellant had been working at a hotel and had a grudge against his employer. One night after consuming a large quantity of alcohol he went to the hotel and started a fire. The hotel had 10 guests sleeping in the hotel at the time. Fortunately, the fire was discovered and distinguished early and no people were actually harmed. The appellant was convicted of aggravated criminal damage under s.1(2) Criminal Damage Act 1971 and appealed in relation to the required level of recklessness. The defendant argued that he had given no thought as to the possible endangerment of life due to his intoxicated state.
Principle – House of Lords upheld his conviction and formulated what has become known as Caldwell recklessness: A person is reckless as to whether the property is destroyed or damaged where: (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.
Elliott v C [1983] 1 WLR 939
The defendant was a 14-year old girl of low intelligence who had started a fire in a shed. She had poured white spirit on the floor and set it alight. The magistrates applied 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. They 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. The prosecution appealed by way of case stated.
Principle – 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.
R v G & R [2003] 3 WLR House of Lords
The two appellants, aged 11 and 12, went camping for a night without their parents’ permission. The boys found some old newspapers outside the Co-op which they lit with a lighter and then threw them under a wheelie bin. They then left without putting them out assuming they would naturally burn out. In fact the burning newspapers set light to the wheelie bin and the fire spread to the Co-op shop and caused over £1m of damage.
Principle – The defendants’ convictions were quashed. The House of Lords overruled MPC v Caldwell. The appropriate test of recklessness for criminal damage is:
“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.”
DPP v K (a minor) [1990] 1 WLR 1067
A 15 year old school boy took some acid from a science lesson. He placed it into a hot air hand drier in the boys’ toilets. Another pupil came into the toilet and used the hand drier. The nozzle was pointing upwards and acid was squirted into his face causing permanent scars. The defendant was charged under s.47 OAPA 1867.
Held:
The application of force need not be directly applied. The defendant was also convicted under Caldwell recklessness (this aspect of the case has since been overruled.)
R v Spratt [1990] 1 WLR 1073
The defendant fired an airgun with pellets out of his flat window. He stated that he did not think anyone was in the vicinity and did not foresee a risk of any harm he only wanted to see how far the pellets would go. Two pellets struck a young girl playing in the forecourt. He was charged with ABH and pleaded guilty. He was sentenced to 30 months and appealed against sentence. When the appeal came before the court the judge questioned whether the facts as stated could give grounds for a conviction and referred an appeal against conviction. The Crown contended that inadvertent (Caldwell) recklessness would suffice for a charge under s.47.
Held:
Conviction was quashed. Recklessness required the defendant to have an appreciation of the risk.
The position now…
The House of Lords held asubjective standard now applies to criminal damage:
“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.”
