Crime CLXXVI-Criminal Damage XVI

In Elliott v C (1983) – a 14-year-old girl of lower intelligence had started a fire. She entered a shed and found a bottle of spirit. She poured the contents on the floor and threw two lighted matchsticks at the emptied contents. The second matchstick started a fire and burnt the shed down. When questioned, she said she had no idea why she had started the fire and that she did so simply because she had felt like it.

At her trial she was charged with arson but she was acquitted. The judge applied the Caldwell test and said that the defendant could only have acted recklessly if she was able to appreciate the risk or the risk would have been obvious to her if she had given the matter some thought.

The prosecution appealed the case on a point of law. The appeal was allowed …. “if the risk is one which would have been obvious to a reasonably prudent person, once it has been proved that the particular defendant gave no thought to the possibility of there being such a risk, it is not a defense that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it.”

In Elliott v C (1983) the judges had broadened the subjective recklessness test in R v Caldwell (1982) by taking into account the conduct of the “reasonably prudent person” (the judge in the first instance had applied the Caldwell test strictly and had found the defendant not guilty but on appeal the judges found it best to broaden the scope of the Caldwell test. We have to keep in mind that some of these decisions could have been made for public policy reasons i.e. to deter or prevent arson).

Copyright © 2018 by Dyarne Ward

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