Chief Constable of Avon and Somerset Constabulary v Shimmen (1986) 84 Cr App R 7
Recklessness in the case of mistaken discounting of risk
Facts
The defendant was spending time with four of his friends outside a shop in a generally jovial atmosphere. At one stage, the appellant was pushed by one of his friends which caused him to flail his arms and legs, but did he did not hit anyone or anything. This prompted the discussion to evolve to the point that the defendant felt compelled to demonstrate his martial arts abilities to his friends. This involved kicking in the direction of a window in order to demonstrate the level of his control and martial arts skill. However, the defendant’s control was not as advanced as he believed and he broke the window. The defendant was prosecuted and convicted under s.1 of the Criminal Damage Act 1971. It was accepted by the partied that the defendant had no intention to break the window, but he was prosecuted under the recklessness limb of that section. The defendant’s defence had been that he was certain that no risk was involved due to his advanced martial arts skills and that he was therefore not reckless.
Issues
Is a defendant who acted under a mistaken belief as to risk objectively reckless as to the consequences of his actions and therefore guilty of an offence under s.1 CDA 1971.
Decision/Outcome
A defendant who acted upon a mistaken assessment of risk could still be reckless for the purposes of s.1 CDA 1971 where he still allowed for a degree of risk and acted anyway. However, a defendant who was convinced of zero risk would potentially not be objectively reckless because he has neither failed to consider the risk nor consciously run a degree of risk). Since this was not the case in this instance, the case was remitted to the Magistrates with a direction to convict.
Updated 19 March 2026
This article accurately describes the facts, issues, and outcome of Chief Constable of Avon and Somerset Constabulary v Shimmen (1986) 84 Cr App R 7. The case remains good law as an illustration of subjective recklessness under the Caldwell/Lawrence framework as it applied at the time, and specifically the point that a defendant who discounts but does not eliminate a recognised risk remains reckless.
However, readers should note an important subsequent development: the House of Lords in R v G and Another [2003] UKHL 50 overruled R v Caldwell [1982] AC 341 and restored a purely subjective test for recklessness under s.1 of the Criminal Damage Act 1971. Under the test now laid down in R v G, a person acts recklessly when they are aware of a risk that exists or will exist and it is unreasonable in the circumstances to take that risk. The significance of Shimmen in contemporary law therefore lies in its demonstration that a defendant who recognises some degree of risk but consciously discounts it is still subjectively reckless — a point that sits comfortably with the R v G test. The article’s framing in terms of ‘objective recklessness’ reflects the Caldwell era and should be read with this context in mind. The core conclusion of the case (that partial discounting of a recognised risk does not negate recklessness) remains valid under current law.
