Fault elements in modern criminal law

One of the most important fault elements in modern criminal law is recklessness. Like intention, though generally less blameworthy, it can be a rather complex concept in determining mens rea. There has been great controversy in the past as to the right approach to this determination of fault. Before we examine the developments of recklessness in law, let us first examine what the law setting the right balance means. For this essay, we will assume that the right balance refers to a “compromise” between justice established in holding individuals accountable, in the social context and upholding the law.

The law on recklessness has its roots in the Malicious Damage Act 1861 s.51 which provided that “Whoever unlawfully and maliciously commits any damage... shall be guilty of misdemeanour...” A case where the Defendant was charged under this section is Pembliton. Here, the courts interpreted “malicious” to mean that the act done had to be intentional and wilful and that the reckless disregard of a perceived risk would suffice as intention. This approach was similarly adopted in R v Faulkner.

Pembliton was relied on in R v Cunningham. In Cunningham, the Defendant stole a gas meter. Gas escaped, endangering the life of the victim who inhaled it. The Court, approving Pembliton's principle, convicted the Defendant for maliciously administering a noxious thing so as to endanger life. The Court of Criminal Appeal quoted “... ‘malice' must be taken not... (as) wickedness in general, but as requiring either (i) an actual intention to do the particular type of harm that was in fact done, or (ii) recklessness as to whether such harm should occur or not (ie: the accused has foreseen that the particular type of harm might be done, and yet has gone on to take the risk of it.)” Hence, malicious in a statutory crime must postulate foresight of consequence and does not require any ill-will towards the victim.

The Cunningham test of recklessness is a subjective form of mens rea, focused on the Defendant's own perception of a risk. The test requires proof of him taking an unjustified risk and also of his awareness of the existence of such a risk (obvious as it may be), before choosing to undertake it. Subsequently, Mowatt also relied on the precedence set in Cunningham. Though in Cunningham, the court was specifically considering the requirement of malice (form of recklessness) the test could apply generally to other types of recklessness.

In 1969, the law underwent a reform. The Law Commission reviewed specific offences including the law for malicious damage. The Cunningham test was approved. The Law Commission identified the “intent” to do the forbidden act or recklessness in relation to its forbidden consequences as the “essential mental element in the existing malicious damage offences.” The Law Commission also stated the preference of the use of the words “wilful” or “reckless” over “maliciously.” In the Working Paper No. 31, it proposed certain important principles which was modified slightly and included in s .1(1) and s.1(2) of the Criminal Damage Act 1971 enacted later. The Malicious Damage Act 1861 on the other hand was repealed in most parts. R v Stephenson was a significant case following this enactment which considered the meaning of “recklessness” in s.1(1) of the Criminal Damage Act .

In 1982, controversy was stirred in R v Caldwell. In Caldwell, the Defendant under self-intoxication, set fire to the hotel he used to work in. He was convicted of two charges, one of arson and another under s.1(1) of the Criminal Damage Act. The Defendant claimed that he was so drunk it genuinely did not occur to him that there were people in the hotel he set the fire to. This thus triggered the “birth” of the objective recklessness test. This is because, had the Courts followed the Cunningham test which asserted that the Defendant has to be aware of the existence of a risk, the Defendant would be acquitted since his state of drunkenness would impair his judgment. The Courts were unwilling to acquit him just on the grounds of his lack of awareness of the risk, which was entirely due to fault on his part ie self-intoxication. To prevent that, the Court attempted to fill the loophole in the Cunningham test. The Lordships generally decided that where the statute uses the word “recklessness”, a different test would apply. Lord Diplock said that a person would be reckless as to whether property was destroyed or damaged: "... if (1) he does an act which in fact creates an obvious risk that property would be destroyed or damaged and (2) when he does the act, he (i) either has not given any thought to the possibility of there being any such risk or (ii) has recognised that there was some risk involved and has nonetheless gone on to do it. Under both limbs of the direction, it must be proven that the risk taken was an “obvious” one. Meaning, the Caldwell test required that the risk to be seen was to be perceived by a reasonable person even if the Defendant did not. Thus, the question arose of the Defendant's liability if he did consider the matter but genuinely did not perceive any risk, through no fault of his. Hence, the “model direction” set by Lord Diplock contained inconsistencies and loopholes, which would be discussed in the subsequent few paragraphs.

R v Lawrence was also decided on the same day as Caldwell. The principles from both cases were taken to apply to all offences relating to recklessness for a short while in the following years following, like Elliot v C unless ordained by Parliament.

In 2003, R v G and others re-examined the definition of recklessness, reverting back to its subjective form. This concerned two minors who set fire to some newspapers and threw them under a rubbish bin. A fire broke out, causing some $1 million worth of damage. They were subsequently charged with arson under S1 (1) and (3) of the Criminal Damage Act 1971 and pronounced guilty at first instance, because the trial judge had directed the jury in accordance with Caldwell. The House of Lords however reconsidered the decision on point of law and adopted the Law Commissions Draft Criminal Code definition. Though this definition was based on the principles in Cunningham, the House of Lords relied on this definition rather than its earlier words there. There are 3 main differences between the definitions in Cunningham and the Draft Code. Firstly, the former only refers to taking risks as a result but not as a circumstance as in the latter. Secondly, the Draft Code has an additional restriction compared to the Cunningham test which is that the Defendant's risk-taking must have been “unreasonable.” To determine whether the risk-taking was unreasonable, the courts will have to balance factors like the seriousness of the risk and the social value of the Defendant's conduct. Also, the Cunningham test requires only foresight of harm that actually occurred but it has been argued that the Draft Code requires awareness of the risk that the actual damage done might occur.

Also, to cover the “loophole” in the Cunningham, Lord Diplock correctly stated in G that the Court will: “... decide whether a defendant can be believed when he says that the thought of a given risk never crossed his mind” and the jury will not blindly accept the Defendant's mitigation.

Caldwell was overruled for various reasons, the most important being the reasonable person assumption. An analogy was given in Smith and Hogan to illustrate this point. The Caldwell test did not provide exclusions for the accused where he falls short of the characteristics of a reasonable person ie: a person whose capacity to foresee risk is genuinely diminished for reasons like lack of intellect as in Elliot v C. Hence, to mitigate the harshness of the rule, Caldwell was overruled. Another reason is the confusion that might arise if different offences relating to recklessness were subjected to different tests as in W v Dolbey. The Defendant would have been liable for recklessly causing damage to the spectacles under the Malicious Damage Act following the Caldwell objective test but not for the destruction of the eye under the Offences Against the Persons Act 1861 following the precedence in the Cunningham subjective test. This clash of tests for recklessness does not make sense since the law would appear to give more protection to the spectacles than the eye.

Though some academics prefer the objective test, R v G still remains the leading authority. Since R v G, the Draft Code was reformed and reproduced under the Criminal Law Bill, further simplifying the law.

In conclusion, in law, individuals should be held accountable for their behaviour. Although it has taken over a century, we now have the right balance with the current subjective test being a fair one where the Defendant would be judged on personal circumstances or characteristics and his subjective state of mind at the time of risk-taking.