Regina v. G and another (Appellants) (On Appeal from the Court of Appeal (Criminal Division))
12. In its second programme of law reform the Law Commission, then under the chairmanship of Scarman J, envisaged the codification of the criminal law. As part of that project it examined a number of specific offences, among them the law of malicious damage, on which it published its Working Paper No 23 in April 1969. This described the Malicious Damage Act 1861, despite five later amending statutes, as "unsatisfactory" (paragraph 2). In a brief statistical introduction the Law Commission drew attention (in paragraph 9) to the prevalence of malicious damage offences among the youngest criminal age group (the 10 to 14 year olds) as well as among other juveniles, and to the fact that more than half of those convicted of the most serious offence (arson) were under 21. In a section on "The Mental Element" the Law Commission referred to a working party which was formulating draft propositions on the mental element in crime and observed (in paragraph 31):
In paragraph 33 of the working paper the Law Commission identified "intent to do the forbidden act or recklessness in relation to its foreseen consequences" as the "essential mental element in the existing malicious damage offences" and quoted with the apparent approval the passage from R v Cunningham  2 QB 396 which is set out in paragraph 10 above. The Law Commission considered that the word "maliciously" should be avoided (paragraph 34) and favoured its replacement by "wilful or reckless" (paragraph 64). It proposed (paragraph 68) that the new group of offences should require "traditional mens rea, in the sense of intention or recklessness in relation to prescribed consequences and, where appropriate, knowledge or recklessness in relation to prescribed circumstances". The working paper does not suggest that the law as then understood was thought to be leading to unjustified acquittals. In a published comment on the working paper, Professor Brian Hogan wrote ( Crim LR 283, 288):
13. In its Report on Offences of Damage to Property (Law Com. No 29) published in July 1970, the Law Commission broadly followed, in respects relevant to this appeal, the lines of the working paper. On the mental element of criminal damage offences the Law Commission said (in paragraph 44):
It does not appear from the report that the Law Commission's consultation had elicited any complaint that the existing law was unduly favourable to defendants. Annexed to the report was a draft bill: in this clause 1(1) and (2) were exactly as enacted in the 1971 Act, but what became section 1(3) was omitted. On 16 June 1970, a month before this report was published, the Law Commission had published its working paper No 31 (General Principles: The Mental Element in Crime). In that working paper a definition of recklessness was proposed (on page 48):
In the 1971 Act as passed all except six sections of the Malicious Damage Act 1861, a lengthy Act, were repealed, very much as the Law Commission had proposed.
14. Enactment of the 1971 Act did not at once affect the courts' approach to the causing of unintentional damage. In R v Briggs (Note)  1 WLR 605 the defendant had been charged under section 1(1) of the 1971 as a result of damage caused to a car and the appeal turned on the trial judge's direction on the meaning of "reckless". The appeal succeeded since the judge had not adequately explained that the test to be applied was that of the defendant's state of mind. The Court of Appeal (James LJ, Kenneth Jones and Pain JJ) ruled (at page 608):
This definition was adopted but modified in R v Parker (Daryl)  1 WLR 600 where the defendant in a fit of temper had broken a telephone by smashing the handset violently down on to the telephone unit and had been convicted under section 1(1) of the 1971 Act. The court (Scarman and Geoffrey Lane LJJ and Kenneth Jones J) readily followed R v Briggs (Note) (page 603) but held that the defendant had been fully aware of all the circumstances (page 603) and that if (page 604)
The court accordingly modified the Briggs definition in this way (page 604):
This modification made no inroad into the concept of recklessness as then understood since, as pointed out by Professor Glanville Williams, Textbook of Criminal Law (1978), page 79, cited by Lord Edmund-Davies in his dissenting opinion in R v Caldwell  AC 341, 358,
15. The meaning of "reckless" in section 1(1) of the 1971 Act was again considered by the Court of Appeal (Geoffrey Lane LJ, Ackner and Watkins JJ) in R v Stephenson  QB 695. The defendant had tried to go to sleep in a hollow he had made in the side of a haystack. Feeling cold, he had lit a fire in the hollow which had set fire to the stack and damaged property worth £3500. He had been charged and convicted under section 1(1) and (3) of the 1971 Act. The defendant however had a long history of schizophrenia and expert evidence at trial suggested that he may not have had the same ability to foresee or appreciate risks as the mentally normal person. Giving the reserved judgment of the court, Geoffrey Lane LJ (at pages 700-703) reviewed the definition of recklessness in the Law Commission's Working Paper No 31 (see paragraph 13 above), the acceptance of that definition by the leading academic authorities and the House of Lords' adoption of a subjective meaning of recklessness in tort in Herrington v British Railways Board  AC 877. The court (at page 703) thought it fair to assume that those who were responsible for drafting the 1971 Act were intending to preserve its legal meaning as described in Kenny and expressly approved in R v Cunningham  2 QB 396. The court then continued:
The appeal was accordingly allowed. But the court recognised that what it called the subjective definition of recklessness produced difficulties. One of these was where a person by self-induced intoxication deprived himself of the ability to foresee the risks involved in his actions. The court suggested that a distinction was to be drawn between crimes requiring proof of specific intent and those, such as offences under section 1(1) of the 1971 Act, involving no specific intent:
16. In the 1979 (40th) edition of Archbold Pleading, Evidence and Practice in Criminal Cases, on which jury directions were no doubt routinely based at the time, the better view was said (page 958, paragraph 1443c) to be
R v Caldwell
17. R v Caldwell  AC 341 was a case of self-induced intoxication. The defendant, having a grievance against the owner of the hotel where he worked, got very drunk and set fire to the hotel where guests were living at the time. He was indicted upon two counts of arson. The first and more serious count was laid under section 1(2) of the 1971 Act, the second count under section 1(1). He pleaded guilty to the second count but contested the first on the ground that he had been so drunk at the time that the thought there might be people in the hotel had never crossed his mind. His conviction on count 1 was set aside by the Court of Appeal which certified the following question:
In submitting that the two questions should be answered (a) Yes and (b) No, counsel for the Crown did not challenge the correctness of R v Briggs (Note)  1 WLR 605 or R v Stephenson  QB 695.
18. In a leading opinion with which Lord Keith of Kinkel and Lord Roskill agreed, but from which Lord Wilberforce and Lord Edmund-Davies dissented, Lord Diplock discounted Professor Kenny's statement of the law approved in R v Cunningham  2 QB 396 (see paragraph 10 above) as directed to the meaning of "maliciously" in the 1861 Act and having no bearing on the meaning of "reckless" in the 1971 Act: page 351. It was, he held, no less blameworthy for a man whose mind was affected by rage or excitement or drink to fail to give his mind to the risk of damaging property than for a man whose mind was so affected to appreciate that there was a risk of damage to property but not to appreciate the seriousness of the risk or to trust that good luck would prevent the risk occurring: page 352. He observed :
Reference was made to R v Briggs (Note)  1 WLR 605, R v Parker (Daryl)  1 WLR 600 and R v Stephenson  QB 695, but Lord Diplock saw no warrant for assuming that the Act of 1971, whose declared purpose was to revise the law of damage to property, intended "reckless" to be interpreted as "maliciously" had been: page 353. He preferred the ordinary meaning of "reckless" which (pages 353-354):
To decide whether a person had been reckless whether harmful consequences of a particular kind would result from his act it was necessary to consider the mind of "the ordinary prudent individual" (page 354). In a passage which has since been taken to encapsulate the law on this point, and which has founded many jury directions (including that in the present case) Lord Diplock then said (at page 354):
On the facts Lord Diplock concluded that the defendant's unawareness, owing to his self-induced intoxication, of the risk of endangering the lives of hotel residents was no defence if that risk would have been obvious to him had he been sober (page 355). He held that evidence of self-induced intoxication was relevant to a charge under section 1(2) based on intention but not to one based on recklessness (page 356).
19. In his dissenting opinion Lord Edmund-Davies expressed "respectful, but profound, disagreement" with Lord Diplock's dismissal of Professor Kenny's statement which was "accurate not only in respect of the law as it stood in 1902 but also as it has been applied in countless cases ever since, both in the United Kingdom and in other countries where the common law prevails" (page 357). Lord Edmund-Davies drew attention to the Law Commission's preparation of the 1971 Act and its definition of recklessness in Working Paper No 31 (pages 357-358) and continued:
He observed (page 358):
Lord Edmund-Davies differed from the majority on the relevance of evidence of self-induced intoxication: in his opinion such evidence was relevant to a charge under section 1(2) whether the charge was based on intention or recklessness (page 361).R v Lawrence (Stephen)
20. Judgment was given by the House in R v Lawrence (Stephen)  AC 510 on the same day as R v Caldwell  AC 341, although only two members (Lord Diplock and Lord Roskill) were party to both decisions. The defendant had ridden a motor cycle along an urban street after nightfall and had collided with and killed a pedestrian He had been charged and convicted under section 1 of the Road Traffic Act 1972 which made it an offence to cause the death of another person by driving a motor vehicle on a road recklessly. His appeal had succeeded on the ground of an inadequate direction to the jury. The issue on appeal to the House concerned the mental element in a charge of reckless driving.
21. Lord Hailsham of St Marylebone LC, agreeing with Lord Diplock (page 516) and with the majority in R v Caldwell (page 521), understood recklessness to evince "a state of mind stopping short of deliberate intention, and going beyond mere inadvertence" (page 520). Lord Diplock rehearsed the history of motoring offences based on recklessness beginning with section 1 of the Motor Car Act 1903 and applied essentially the same test as laid down in R v Caldwell, by reference to the "ordinary prudent individual" (page 526). He formulated an appropriate jury direction to the same effect, mutatis mutandis, as that in R v Caldwell (pages 526-527). But he added (at page 527):
Lord Fraser of Tullybelton, Lord Roskill and Lord Bridge of Harwich agreed with Lord Hailsham and Lord Diplock.
22. The decisions in R v Caldwell and R v Lawrence (Stephen) were applied by the House (Lord Diplock, Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Brightman) in R v Miller  2 AC 161, although subject to a qualification germane to the facts of that case but not to the facts of the present case (page 179).
23. In Elliott v C  1 WLR 939 the defendant was a 14-year old girl of low intelligence who had entered a shed in the early morning, poured white spirit on the floor and set it alight. The resulting fire had flared up and she had left the shed, which had been destroyed. She was charged under section 1(1) of the 1971 Act and at her trial before justices the prosecution made plain that the charge was based not on intention but on recklessness. The justices sought to apply 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. The justices 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 (page 945). The prosecutor's appeal was allowed. Glidewell J, giving the first judgment, accepted the submission (pages 945-947) that:
Robert Goff LJ felt constrained by the decisions of the House in R v Caldwell, R v Lawrence (Stephen) and R v Miller to agree, but he expressed his unhappiness in doing so and plainly did not consider the outcome to be just. A petition for leave to appeal against this decision was dismissed by an appeal committee.
24. The defendant in R v Stephen Malcolm R (1984) 79 Cr App R 334 had thrown petrol bombs at the outside wall of the bedroom of a girl who he believed had informed on him in relation to a series of burglaries. He had admitted throwing the bombs but claimed he had done so to frighten the girl and without realising that if a bomb had gone through the window it might have killed her. He was charged with arson under section 1(2) of the 1971 Act, on the basis of recklessness. At trial, it was submitted on the defendant's behalf that when considering recklessness the jury could only convict him if he did an act which created a risk to life obvious to someone of his age and with such of his characteristics as would affect his appreciation of the risk (page 337). On the trial judge ruling against that submission the defendant changed his plea and the issue in the Court of Appeal (Ackner LJ, Bristow and Popplewell JJ) was whether the ruling had been correct. The court held that it had: if the House had wished to modify the R v Caldwell principle to take account of, for instance, the age of the defendant, the opportunity had existed in Elliott v C  1 WLR 939 and it had not been taken. Although concerned at the principle it was required to apply, the court had little doubt that on the facts of the case the answer would have been the same even if the jury had been able to draw a comparison with what a boy of the defendant's age would have appreciated.
25. On his appeal to the House (Lord Keith of Kinkel, Lord Roskill, Lord Ackner, Lord Goff of Chieveley and Lord Browne-Wilkinson) in R v Reid  1 WLR 793 the defendant, convicted of causing death by reckless driving contrary to section 1 of the Road Traffic Act 1972, later re-enacted in section 1 of the Road Traffic Act 1988, asked the House to reconsider its decision in R v Lawrence (Stephen)  AC 510 on which the trial judge's jury direction had been based. The House unanimously affirmed its earlier decision as correct in principle for essentially the reasons which Lord Diplock had given. Lord Keith, however, accepted (at page 796) that Lord Diplock's suggested jury direction might call for modification or addition:
Lord Ackner (page 806) drew attention to Lord Diplock's acceptance that "regard must be given to any explanation [the defendant] gives as to his state of mind which may displace the inference" (see paragraph 21 above) and commented:
Lord Ackner (page 805), Lord Goff (page 807) and my noble and learned friend Lord Browne-Wilkinson (pages 816-817) all, with varying degrees of emphasis, made plain that their observations were directed to recklessness in the context of driving and not to recklessness in the context of section 1 of the 1971 Act or any other context.
26. In R v Coles  1 Cr App R 157 a 15 year old defendant convicted under section 1(2) of the 1971 Act on the basis of recklessness again challenged, unsuccessfully, the rule laid down by Lord Diplock in R v Caldwell  AC 341. Since recklessness was to be judged by the standard of the reasonable prudent man, it followed that expert evidence of the defendant's capacity to foresee the risks which would arise from his setting fire to hay in a barn had been rightly rejected.
27. In the present case the Court of Appeal (Dyson LJ, Silber J and His Honour Judge Beaumont QC) reviewed the authorities but was in no doubt that the Caldwell test had been rightly applied:  EWCA Crim 1992,  3 AllER 206, paragraph 18. It acknowledged that the Caldwell test had been criticised and had not been applied in a number of Commonwealth jurisdictions (paragraph 18) and saw great force in these criticisms (paragraph 23) but held that it was not open to the Court of Appeal to depart from it.
28. The task confronting the House in this appeal is, first of all, one of statutory construction: what did Parliament mean when it used the word "reckless" in section 1(1) and (2) of the 1971 Act? In so expressing the question I mean to make it as plain as I can that I am not addressing the meaning of "reckless" in any other statutory or common law context. In particular, but perhaps needlessly since "recklessly" has now been banished from the lexicon of driving offences, I would wish to throw no doubt on the decisions of the House in R v Lawrence  AC 510 and R v Reid  1 WLR 793.
29. Since a statute is always speaking, the context or application of a statutory expression may change over time, but the meaning of the expression itself cannot change. So the starting point is to ascertain what Parliament meant by "reckless" in 1971. As noted above in paragraph 13, section 1 as enacted followed, subject to an immaterial addition, the draft proposed by the Law Commission. It cannot be supposed that by "reckless" Parliament meant anything different from the Law Commission. The Law Commission's meaning was made plain both in its Report (Law Com No 29) and in Working Paper No 23 which preceded it. These materials (not, it would seem, placed before the House in R v Caldwell) reveal a very plain intention to replace the old-fashioned and misleading expression "maliciously" by the more familiar expression "reckless" but to give the latter expression the meaning which R v Cunningham  2 QB 396 and Professor Kenny had given to the former. In treating this authority as irrelevant to the construction of "reckless" the majority fell into understandable but clearly demonstrable error. No relevant change in the mens rea necessary for proof of the offence was intended, and in holding otherwise the majority misconstrued section 1 of the Act.