Crime XIII – Mens IX – Recklessness II

In R v Spratt (1990) the accused fired his air gun from an open window without thinking that there might be others in the vicinity, the thought never occurred to him. Two of the bullets that were fired from the air gun hit a young girl who was playing in the courtyard and the accused was charged with causing actual bodily harm (ABH). The question before the court was whether a) the accused intended to cause actual bodily harm or b) whether his conduct was so reckless that intention could be implied. The accused pleaded guilty and was sentenced. The accused appealed the sentence.

On appeal, the prosecution relied on the Caldwell test and sought to obtain a conviction on the grounds that the accused had either not given any thought to the possibility of there being any such risk or had recognized that there was some risk involved but had nonetheless gone on to commit the act. His conviction was quashed and the judge decided that in order to convict for Caldwell recklessness the accused must have some appreciation of the risk.

It is clear that the Caldwell test is too broad and widens the scope of liability and the judge in R v Spratt (1990) recognizing the dangers of the Caldwell test has tried to limit or restrict its scope by looking at the accused’s state of mind at the time he committed the act.

In R v Savage (1991) the accused threw a glass of beer at her husband’s ex-girlfriend and the glass slipped and broke cutting the victim in the wrist. The accused was charged and the court had to decide on whether there was intent to cause some type of bodily harm to the victim. The accused contented that she merely threw the beer to humiliate the victim.

The House of Lords held that it was sufficient that some harm was foreseeable, regardless of the severity of the harm or the fact that it was minor. As long as there was intent to cause some harm it was sufficient to establish the mens rea required for a conviction or demonstrate the malicious component or aspect of mens rea.

In R v Adomako (1994) the accused was an aesthetician who was in charge of administering anesthetics during an operation. While in surgery an oxygen pipe got disconnected and the patient died from the resulting complications. The accused was charged and convicted of manslaughter. The accused appealed. The Court of Appeal dismissed the conviction but the House of Lords upheld the conviction on the grounds that the cause of death was not recklessness but gross negligence in breach of a duty.

In R v Gemmell and Richards (2003) – two boys aged 11 and 12 respectively, went camping without their parents’ permission. They found themselves behind a Co-op shop and discovered bundles of newspaper stacked up nearby. They opened the newspapers to read and later lit up some of the newspaper. They then threw some of the lit paper under a large plastic wheelie-bin and left the yard without putting out the fire. The wheelie-bin caught fire and spread to another bin, a shop and adjoining buildings causing damages worth £1 million.

The defendants were charged with arson as per s 1 (1) and 1 (3) of the Criminal Damage Act 1971. The defendants were convicted and the Court of Appeal upheld the conviction because it felt that it was bound by the decision in Caldwell. The defendants appealed.

The House of Lords quashed the appellants’ convictions – “Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?”.

“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 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.” – Lord Bingham.

Copyright © 2018 by Dyarne Ward

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