Cases on Recklessness

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Cunningham

Cunningham - 1957 - Queens Bench

D ripped gas meter from cellar wall in order to steal money inside. Gas leaked and future mother-in-law inhaled it. Charged with MALICIOUSLY administering a noxious substance so as to endanger life under OAP Act

Established the classic subjective recklessness test. Criminal Court of appeal was asked to whjat was meant by the word maliciously. Trila Judge had said it meant "wickedly" CofA disagreed and approved Professor Kenny's definition from 1902: "in any statutory definition of a crime, "malice" must be taken not in the old vague sense of wickedness but as requiring either

(i) actual intention to do the particular kind of harm that was in fact doen, or

(ii) 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)."

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Venna

Venna - 1976 - Queens Bench

Applied the Cunningham test to an offence of abh under OAP Act 1847

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Stephenson

Stephenson - 1979 - Queens Bench

D was a schizzophrenic and homeless. Sheltered in a hollowed out haystack in a field, still cold so lit a small fire to keep warm, haystack caught fire and was damaged along with other items of equipment. Charged under Criminal damage Act. Medical evidence that his condition could deprive him of the ordinary ability to forsee risk. Convicted in first instance.

Court of Appeal quashed the conviction - what mattered was whether the D himself had foreseen the risk

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Metropolitan Police Commissioner v Caldwell

Metropolitan Police Commissioner v Caldwell - 1982 - House of Lords

Caldwell was a disgruntled employee who had been sacked, got drunk and then set fire to the hotel that he used to work in. He claimed that the alcohol meant that he could not forsee what would happen.

The case introduced the objective test: "A person charged under s.1(1) of the CDA 1971 is "reckless as to whether or not any such property 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 their being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it. That would be the proper direction to the jury" per Lord Diplock (the reasonable prudent individual test (objective) as oppsed to the Defendant test (subjective) SIMPLIFIED THE TEST MEANS THAT IN ORDER TO ESTABLISH THAT D WAS RECKLESS IN A CHARGE OF CRIMINAL DAMAGE, THE JURY MUST CONSIDER A TWO PART TEST:

1: DID THE D COMMIT AN ACT WHICH CREATED AN OBVIOUS RISK THAT PROPERTY WOULD BE DAMAGED?; AND

2: WHEN D COMMITTED THE ACT, DID HE EITHER GIVE NO THOUGHT TO THE POSSIBILITY OF THERE BEING A RISK OR, HAVING RECOGNISED THE RISK, DID HE GO ON TO TAKE IT.

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Lawrence

Lawrence - 1982 - House of Lords

Causing death by reckless driving - D driving a motorcycle at 77 miles per hour in built up area and collided with a pedestrian and killed her

Upheld the objective test laid down in Caldwell and applied it to reckless driving matters. The jury must decide whether the risk created by D's driving was both obvious and serious by the standards of the ordinary and prudent motorist.

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Seymour

Seymour - 1983 - House of Lords

Reckless manslaughter case - D was along distance lorry driver who collided with a car, the victim got out of the car and D drove his lorry into the car and V was crushed between the two and died. Convicted.

Court applied the Caldwell test here also going further and stating that the Caldwell definition of recklessness was comprehensive. Per Lord roskill "Reckless should today be given the same meaning in relation to all offences which involve "recklessness" as one of the elements unless Parliament has otherwise ordained".

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Shimmen

Shimmen - 1986 - Queens Bench

D was a martial arts expert he thought about the possible risks and mistakenly thought there were none (Caldwell Lacuna) broke the window criminal damage

D did not fall in the lacuna, he did recognise a risk and thought he had eliminated most of it, however, he recognised that there was still some risk and went on to take that risk, albeit a minimal one. Therefore unless the D thinks that he has eliminated the whole of the risk, he did not fall into any lacuna.

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Reid

Reid - 1992 - House of Lords

D driving on the inside lane of the dual carriageway. D tried to overtake a car on its nearside but there was a hut protruding into the road and the D it the hut and his passenger was killed.

Recklessness could not be restricted to a subjective test and included failing to appreciate an obvious risk . However it was not always necessary to direct the jury in the strict terms of Lord Diplocks direction which should be viewed as a cautionary instruction. The jury must have regard to all available evidence. In relation to the Caldwell lacuna, Lord Goff stated that if D is addressing his mind to the possibility of risk and suffers from a bona fide mistake as to a specific fact which, if true, would have excluded the risk, he cannot be said to be reckless, though he might be guilty of careless driving.

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Elliot V C

Elliot V C - 1983 - Queens Bench, Court of Appeal

Mentally subnormal 14 year old. Stayed outside in dhed with no sleep, Set fire to the shed in oan attempt to keep warm and destroyed it.

If the risk of damage to the property was obvious to a reasonable and prudent man, even though D had not thought of it and even if it would never have been obvious to the D, D was still reckless.

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Sangha

Sangha - 1988 - Court of Appeal

D set fire to mattress and 2 cahris in flat. Charged with Criminal Damage being reckless as to whether lives would be endangered. In fact there was no danger of the fire spreading although D did not know this but argued it anyway when he found out.

The test to be applied in such circumstances is: " is it proved that an ordinary prudent bystander would have perceived an obvious risk that propeorty would be damaged and lives endangered? The ordinary prudent bystander is not deemed to be invested with expert knowledge regarding the construction of the property, or to have the benefit of hindsight. The time when his perception is relevant is the time when the fire is started.

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DPP v K (a minor)

DPP v K (a minor) - 1990 - Divisional Court

ABH

Court applied Caldwell

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Spratt

Spratt - 1991 - Court of Appeal

D charged ABH discharged forearm out of the window apparently unaware that there were children playing and hit a girl twice

Seymour had not overruled Cunningham and was clerly obiter, in relation to OAP Act the courts have consistently held that the mens rea of every type of offence against the person covers both intent and recklessness, in the sense of taking the risk of harm ensuing with foresight that it might happen.

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Savage and DPP v Parmenter

Savage and DPP v Parmenter - 1992 - House of Lords

s.47 and s.20 OAP Act

inorder to establish and offence under s.20 the prosecution must prove that D intended or that he actually foresaw that his act would cause harm.

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Adomako

Adomako - 1995 - House of Lords

Rubbish anaethetist case

Overruled Seymour, held that Seymour applied to the old offence of causing death by reckless driving that had been replaced with statutory offence of causing death by dangerous driving and that objective recklessness set too low a threshold of liability for manslaughter cases and he instead restored the test based on gross negligence.

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R v G and Another

R v G and Another - 2003 - House of Lords

11 and 12 year olds cause £1m damage. Arson case.

Overruled Caldwell and declared that the objective test for recklessness was wrong and restored a modified version of Cunningham subjective recklessness test for criminal damage. For Lord Bingham itr was a matter of statutory interpretation - what did Parliament mean when it used the word reckless in the statute, he did not believe that they meant to change its meaning from that established in Cunningham and that their Lordships in Caldwell had misconstrued it.

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