Criminal Law 3105 Take Home Exam First-Class Essay (Awarded an 80)

Updated: Nov 3, 2020

Submitted By: Sarah McVeigh

"Critically evaluate the House of Lords’ decision in R v G and another [2004] 1 AC 1034

to support a subjective test for recklessness including assessing the alternative tests that

could be applied."

According to Herring (2014), to be reckless is to take an unjustifiable risk. Within criminal

law, there has been much debate over the term recklessness and how it is applied in court, in

particular, over the debate as to whether is it best applied subjectively or objectively. The

subjective-objective dispute was settled by the House of Lords decision in R v G 2004 which

confirmed that the suitable test for recklessness is subjective. This means that any amount of

foresight which is less than that held in the definition of intention, will therefore constitute as

recklessness (Clarkson & Keating, 2017). In R v G, the House of Lords overruled Caldwell on the grounds that it imposed liability that individuals who were incompetent, through no

obvious fault of their own, of performing under the standards of a reasonable bystander. This

essay therefore examines the House of Lords decision in R v G to support a subjective test for recklessness and analyses the three alternative tests that could be applied; A capacity for

recklessness test, a practical indifference test and an insufficient regard for the interest of

others test.

The defendants in R v G were 11 and 12 years of age at the time of the incident. The

defendants set fire to newspapers after reading them and threw them under a bin. The boys

then left the yard without putting out the newspapers that were still ablaze. As a result, the bin then caught fire and eventually spread to the nearby shop, causing £1 million worth of

damage. The issue in the case was whether or not a defendant can be convicted of

recklessness under s(1) of the Criminal Damage Act 1971. The decision of the House of

Lords in R v G overruled MPC v Caldwell 1982 and formulated a different approach to

recklessness. In Caldwell, Lord Diplock asserted the direction that an individual is found

reckless when they “carry out an act which forms an obvious risk and that the individual has

not given any consideration of the outcome of such risk or, that the individual has

acknowledged that there is a risk involved and carried out the act nonetheless.” The main

issue concerning Caldwell’s recklessness was raised in Elliot v C 1983 which confirmed that

an obvious risk would have only been clear to a reasonable prudent person. In R v G [32],

Lord Bingham of Cornhill limited his judgment to overruling Caldwell in its application to

criminal damage. Lord Bingham stated that a defendant “is not clearly blameworthy to do

something involving a risk of injury to another if . . . 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 a serious crime or the risk of punishment.”

The two young boys in R v G genuinely did not recognise or were aware of the risk of

the fire spreading from the newspapers. This judgment illustrated a shift to a more developed subjective definition of recklessness than that of which was originally held in R v

Cunningham 1957. According to Cunningham, in order to be found reckless, the individual

will have awareness of the danger of harm arising from their act as well as their taking of the

risk was unjustified (Smith 2017). This meaning was further developed in R v Parker 1977,

whereby a defendant was also found reckless when they turned a blind eye to the fact that

there was obvious risk of damage, yet they continued in carrying out the act regardless. The

subjective test for recklessness established a straightforward formula that has thrived over the need for an extensive objective one.

The first alternative way of approaching recklessness is through a capacity for

recklessness test. According to Williams (1978), an individual should only be convicted of

recklessness by his failure to give any thought to a clear risk that would result in another

person’s property being damaged. Such risk would have been clear if they he had given

thought to incident. This objective model direction was used in Caldwell. The conditions held in Caldwell failed to incorporate the consideration of minors or of those who are mentally impaired. In R v G, Judge Maher stated that the prosecution must prove that the two young boys, in doing what they did, established a risk that would have been clear to an ordinary, reasonable bystander. It was agreed that within this context of criminal law, the reasonable bystander concerns adults. As the defendants were of a young age, their minds were oblivious to the risk of the fire spreading in the manner that it did. It would be clear to a reasonable bystander, an adult, that the fire could potentially spread to the nearby building. If this case concerned adults, they would then be guilty of the offence.

Keating (2007) proposed that the rule held in Caldwell should be modified when

dealing with cases that involve children. This modification would require a comparison with

children of the defendants age instead of the comparison with normal reasonable adults. To

ensure fairness, the modification of law would have to be applicable to those who are

mentally impaired on the grounds of their limited understanding, alongside children on the

grounds of their immaturity and intellect. Unlike Lord Diplock, many subjectivists such as

Glanville Williams (1978) argue that Caldwell was biased and contradictory to Article 40 s(1)

of the United Nations Convention on the Rights of the Child (1989), which stipulated that the

law should be obliged to take into consideration the age of the child. Children and mentally

impaired individuals are regarded to lack the capacity to form a mens rea in contrast to an

adult, therefore these vulnerable groups need protected. A child may act and be accused of

being foolish, absent-minded or acting in a stupid manner, but none of these result in the child being found guilty of a serious crime. Thus, a subjective test erases the previous objective test which solely focused on the adult’s state of mind.

The second alternative test which can be applied is known as the practical indifference

test. This test examines if the defendant’s behaviour presented a seriously culpable practical

indifference, including any mindful risk-taking, any failure to see an apparent risk created by

their action, and any unreasonable belief on which they acted (Duff 1990). To put simply,

indifference is established by the actions and/or the omissions of the accused (Stark 2016).

The significance of this expression, ‘practical indifference’, is that Duff is able to clarify that

inadvertence led by practical indifference falls under a subjective state of mind. Critics such

as Gardner (1993) argue that the oversight to notice a clear risk indicates that the accused had no interest whether such risk materialised. However, in R v G, it was accepted that both

defendants oversaw the risk that was attached by throwing the burning newspapers under the bin. This illustrates that the defendants action encapsulates inadvertence. One weakness

underlying this test is that some blameworthy defendants may escape liability.

The third alternative test that can arguably be applied is labelled as the insufficient

regard for the interest of others test. In “Recklessness and the Duty to Take Care”, Tadros

(2002) describes that a defendant will be charged with recklessness if the offence carries risks

with it according to the beliefs of the defendant. Individuals are also eligible if they wilfully

blind themselves to the existence of such danger. However, it is apparent that this way of

interpreting recklessness is problematic. From this article is it not clear whether the author is

discussing recklessness or negligence. The “carelessness” that he discusses could either apply to recklessness or negligent wrongdoing. R v G fails to satisfy Tadros criteria as the

defendants did not genuinely believe that their actions of leaving the burning newspapers

under the bin would amount to any risk or danger. Subjectively, it is unjustified to convict

children under this test as they were not aware of the outcome of their actions.

Overall, R v G highlights the importance of acknowledging an individual’s

characteristics such as age and intellect when considering criminal damage. The advantage of the subjective test is that is provides a straightforward query for a jury to decide when

juxtaposed with a more objective test of asking the jury to decide if the defendant should have foreseen the risk. In a modern civil society, overlooking children’s circumstances in the

criminal justice system is unacceptable, hence why it is pivotal to view the incident from the

defendant’s perspective. Therefore, a subjective standard permits young defendants as seen in R v G, to be adjudicated by their age, knowledge and awareness in contrast to the outdated objective standard of being adjudicated by that of a reasonable person, an adult, who has a greater knowledge and understanding of their actions and risks.