R v Stephenson [1979] QB 695
Applying a subjective or objective test for recklessness under s.1 CDA 1971
Facts
The appellant attempted to sleep in a hollow which he had made in a haystack. Because he was cold, he started a fire in that hollow. The fire then spread to the whole stack. This lead to damages being caused in the amount of £3500. The appellant was charged and convicted under section 1 of the Criminal Damage Act 1971, which states that
“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.” (s.1(1) CDA 1971).
The judge had directed the jury that the offence of arson (pursuant to s.1(1) and 1(3) CDA 1971) would be made out if they believed that the risk of the damage which occurred would have been obvious to any reasonable person who was in the Defendant’s position. At trial, evidence was given that the appellant had a history of Schizophrenia and that he may well not have foreseen the possibility of the fire spreading to the whole stack because of his mental illness.
Issues
Was the appropriate test for recklessness under s.1 CDA 1971 objective as the trial judge indicated to the jury or subjective?
Decision/Outcome
The court held that the recklessness test is subjective and that, accordingly, the jury had been misdirected. The appeal was allowed. The fact that the risk of causing damage would have been clear to everyone of sound mind the appellant’s position did not prove that the appellant himself was aware of the risk, given the fact that he was not of sound mind due to his Schizophrenia.
Updated 20 March 2026
This article accurately summarises the decision in R v Stephenson [1979] QB 695, in which the Court of Appeal held that recklessness under s.1 of the Criminal Damage Act 1971 required a subjective test — that is, the defendant must personally have foreseen the risk.
However, readers should be aware that the legal position on recklessness in criminal damage changed significantly following the House of Lords decision in R v Caldwell [1982] AC 341, which introduced an objective test for recklessness and effectively overruled Stephenson for a period. The subjective approach was later restored by the House of Lords in R v G and Another [2003] UKHL 50, which overruled Caldwell and confirmed that recklessness under s.1 CDA 1971 is indeed subjective — broadly consistent with the approach taken in Stephenson. The current law therefore aligns with the outcome in this case, but students should understand that Stephenson was not the sole or uninterrupted authority on the point. R v G is now the leading case on subjective recklessness in criminal damage, and should be read alongside this case for a complete understanding of the law’s development.
