Ruling court House of Lords | ||
Citation(s) [2003] UKHL 50, [2004] 1 AC 1034 Similar R v Woollin, Fagan v Metropolitan Police Co, R v Blaue, R v Cheshire, R v Brown | ||
Criminal law the present law on recklessness r v g 2003
R v G and Another is an English criminal law case, concerning recklessness. It held that a defendant must be shown to have subjectively appreciated a risk to the health or property of another but carried on in any event before they may be said to be criminally culpable. It abolished the "objective recklessness" test previously established under R v Caldwell.
Contents
Facts
Two boys, aged 11 and 12 years, were camping without their parents' permission when they entered the back yard of a shop in the early hours of the morning, Lighting some newspapers they found in the yard, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins standing against the shop wall, where it spread up the wall and on to the roof of the shop. Approximately £1m damage was caused. The children argued they expected the fire to burn itself out although they were aware of the risk of fire spreading.
Judgment
In the House of Lords, Lord Bingham saw the need to modify Lord Diplock's definition to take account of the defence of infancy, which contains the concept of "mischievous discretion". This rule requires the court to consider the extent to which children of eight or more years are able to understand the difference between "right" and "wrong". The Diplock test of obviousness might operate unfairly for 11- and 12-year-old boys if they were held to the same standard as reasonable adults. Bingham stated that "a person acts 'recklessly' 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."This brings the test back to a subjective standard so that defendants can be judged on the basis of their age, experience and understanding rather than on the standard of a hypothetical reasonable person who might have better knowledge and understanding.
Significance
In Booth v Crown Prosecution Service (2006) All ER (D) 225 (Jan), the Divisional Court upheld the defendant pedestrian's conviction on a charge under the Criminal Damage Act 1971 that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him. This result must be correct if a pedestrian does actually consider the possibility of damage any vehicle that might become involved in an accident, but it seems more likely that, if the defendant stopped to consider any risks at all, it would surely have been confined to the risk of his own injury.