Regina v. G and another  on the Development of the Law on Recklessness R v. G and another , was a criminal law case on appeal concerning recklessness. It upheld a subjective test for recklessness and that a defendant must have subjectively appreciated a risk in the circumstances known to him but continued anyway to be worthy of blame. The facts of the case are that the appellants, who prior to the Lords’ judgement stood trial at the Court of Appeal of England and Wales under the watch of His Honour Judge Maher in 2001, were two boys aged 11 and 12 who went on a camping trip without their parents’ permission. Upon finding bundles of newspapers the boys set them alight and threw them under a wheelie bin, but did not extinguish the flame before departing, which consequently lead to a fire that spread to a second wheelie bin next to the wall of a Co-operative nearby, and damaged the shop and an adjacent building, causing approximately £1 million worth of damage. An indictment was brought against the appellants under section 1(1) and (3) of the Criminal Damage Act, which provides instruction on how to interpret recklessness. A conviction under these sections can find a person liable to imprisonment for life. Section 1 of the 1971 Act states:
"1. (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. (2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another - (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence. (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson." His Honour Judge Maher, explained to the jury that he was bound by a previous precedent, as was decided in R v Caldwell  which applied an objective test for determining recklessness, and the risk the appellants created when they did not extinguish the flames from underneath the bin would be defined as a risk that “would have been obvious to the ordinary, reasonable bystander”. The jury were unable to finish their deliberations on the first day, but returned the second day to convict both the boys. “When you answer this question as to whether it would have been obvious to an ordinary reasonable bystander watching that the fire, in effect, would spread as I have just explained it, the ages of these defendants are irrelevant. Their good characters are irrelevant. No allowance is made by the law for the youth of these boys or their lack of maturity or their own inability, if such you find it to be, to assess what was going on. So, if it would have been obvious to an ordinary, reasonable bystander that there was a risk of the fire spreading (as I have just described) to the building, it is irrelevant that you say, 'Well, we think this is a bit harsh. We don't think it would have been apparent to these boys, even though it might have been apparent to an ordinary, reasonable bystander'. It is too bad. So, in that sense, when you are answering this question, you leave wholly on one side everything you know about these two young boys here because - I repeat - it is what would have been perceived by the ordinary, reasonable bystander which is the test." The ratio decidendi can be described as the judge defined the test; the jury’s conviction confirmed that they believed that a reasonable, ordinary bystander would have perceived such a risk and that the reckless they had been found culpable of was to form the mens rea element or ‘guilty mind’ necessary for their case. The judge made a one...
References: by the dissenting Lords were made to R v Stephenson  but the majority were in favour of going in accordance with Lord Diplock’s test, that the risk would have been foreseen by an “ordinary, prudent individual” and the defendant was convicted upon section 1(2) of the 1971 Criminal Damage Act based on intention and not on recklessness, as the risk would have been obvious to the defendant if he was sober. The Lords departed from their previous decision introducing an objective test for recklessness; therefore R v Cunningham  was overruled.
"In my opinion, a person charged with an offence under section 1(1) of the Criminal Damage Act 1971 is 'reckless as to whether any such property would be destroyed or damaged ' if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it. That would be a proper direction to the jury; cases in the Court of Appeal which held otherwise should be regarded as overruled."
R v Cunningham  was a criminal case which had previously established the statutory interpretation of the “maliciously.” The defendant had ripped a gas meter from a wall to steal the money inside, and consequently, gas escaped from the pipe and partially asphyxiated a neighbour. The defendant was charged and convicted with the indictment of an unlawful and malicious administration of a noxious substance to another person under section 23 of the Offences against the Person act 1861. Subsequently, the defendant appealed and the Court of Appeal quashed his conviction on the basis that the malicious nature or depravity of the defendant stealing the gas meter from the wall was not enough to fill the mens rea requirement to convict him of such a crime and that the jury had been misdirected. The judges ruled that "’maliciously’ in a statutory crime postulates foresight of consequence." and introduced a subjective test for recklessness.
Cases which demonstrate the use of R v Cunningham and the application of a subjective test for recklessness, include that of R v Stephenson . The defendant, who was homeless at the time, laid down to sleep in a hollow he had made in the side of a haystack and, feeling cold, lit a fire in the hollow which eventually spread and damaged property equal to the sum of £3500. He was charged and convicted under section 1(1) and (3) of the 1971 Criminal Damage Act. However, the defendant had a long history of schizophrenia and evidence of this was provided to the court by a consultant psychiatrist who had examined him. The evidence provided to the court suggested that the defendant was not the “ordinary, prudent person” as expressed later in Caldwell (Lord Diplock) and that his ability to foresee and appreciate any possible risk arising from the consequence of his actions was impaired by the bearing of his mental illness.
“Proof of the requisite knowledge in the mind of the defendant will in most cases present little difficulty. The fact that the risk of some damage would have been obvious to anyone in his right mind in the position of the defendant is not conclusive proof of the defendant 's knowledge, but it may well be and in many cases doubtless will be a matter which will drive the jury to the conclusion that the defendant himself must have appreciated the risk."
The judges however, acknowledged that the flexibility of a subjective test proposed great difficulties for interpreting common law in a pattern that provided fairness, consistency, and clarity to all involved in the case and for these reasons among others it is understood why an objective measure was introduced in the subsequent case of R v Caldwell .
Despite this, when the appellants in the case of R v G and another  appealed to the Lords to reconsider their conviction, the Lords departed from their previous decision in R v Caldwell  recklessness using the Practice Statement , understanding that the conviction of these two young boys due to the precedent was leading to inadmissible results and that an objective test was possibly too rigid; not allowing any room for factors that could differentiate a defendant’s mind to that of an “ordinary, reasonable bystander” into account, such as age or mental illness. The boys’ convictions were reversed and the Lords departed from their previous decision on the basis that two of the previous decisions the House had made conflicted. The House decided to follow the previous precedent of R v Cunningham  instead of R v Caldwell , which introduced a subjective test for recklessness and was to become binding on the courts.
"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?".
R v G and another  had a significant impact on the law of recklessness, as it held that a defendant must have subjectively appreciated a risk to be found criminally liable, and that he must have in the circumstances known to him appreciated that it was unreasonable to take such a risk. The reintroduction of a subjective test for recklessness allows defendants to be judged on their age, character, and understanding, and take all these necessary factors into account to ensure the fairest judgement will arise from future cases.
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