Facts
Two boys, aged 11 and 12, went camping without their parents' permission. In the early hours, they went into the yard behind a Co-op shop in Newport Pagnell, lit some newspapers they found and threw them under a large wheelie bin. They left, expecting the fire to burn itself out on the concrete floor.
It didn't. The fire spread to the bin, then to the shop and the buildings next door, causing around £1 million of damage. The boys were charged with arson under s 1(1) and (3) of the Criminal Damage Act 1971.
The trial judge directed the jury on recklessness according to R v Caldwell [1982] AC 341, under which a defendant was reckless if there was an obvious risk of damage to property and the defendant gave no thought to it. The risk would have been obvious to a reasonable adult, even if not to these boys, and they were convicted.
Issue
Can a defendant be convicted of criminal damage on the basis of recklessness if they never appreciated the risk of damage at all, because of their age or for any other reason?
Decision
The House of Lords allowed the appeals and quashed the convictions. Caldwell was overruled. Lord Bingham gave the leading speech.
Reasoning
Lord Bingham adopted the definition of recklessness in clause 18(c) of the Law Commission's Draft Criminal Code. A person acts recklessly with respect to:
- a circumstance, when they're aware of a risk that it exists or will exist; and
- a result, when they're aware of a risk that it will occur;
and it is, in the circumstances known to them, unreasonable to take the risk.
He gave four reasons for departing from Caldwell:
- Culpability. Conviction of a serious crime should depend on proof that the defendant's state of mind when acting was culpable. It isn't culpable to fail to foresee a risk you genuinely couldn't see.
- Unfairness. Caldwell was capable of leading to obvious unfairness, especially to children and people with mental impairments, as cases such as Elliott v C [1983] 1 WLR 939 showed.
- Misreading Parliament. The majority in Caldwell had misinterpreted the 1971 Act, which was intended to adopt the subjective approach in R v Cunningham [1957] 2 QB 396.
- Criticism. The decision had been widely criticised by academics, judges and practitioners and couldn't be allowed to stand.
Why it matters
R v G restored subjective recklessness as the general standard in criminal law. A defendant is judged on the risks they actually foresaw, not risks that a reasonable person would have seen.
The test has two parts: awareness of the risk (subjective) and the unreasonableness of taking it (objective, judged on the facts as the defendant understood them). A defendant who foresees a tiny risk and takes it for a good reason may not be reckless.
How it comes up in exams
When an offence can be committed recklessly (criminal damage, assault, battery, and the s 20 offence of the Offences Against the Person Act 1861, among others), apply R v G:
- Did D actually foresee a risk of the relevant result or circumstance? Consider age, intoxication and other evidence of what D was thinking.
- Was it unreasonable to take the risk, in the circumstances as D knew them?
Watch out for the special rule on voluntary intoxication. For offences of basic intent, a defendant can't rely on self-induced intoxication to say they didn't foresee a risk (DPP v Majewski [1977] AC 443).
Frequently asked questions
What was decided in R v G?
The House of Lords held that recklessness under the Criminal Damage Act 1971 is subjective. The two boys, aged 11 and 12, didn't foresee that the fire would spread, so they weren't reckless, and their convictions for arson were quashed.
What is the definition of recklessness after R v G?
A person acts recklessly with respect to a circumstance when they're aware of a risk that it exists or will exist, and with respect to a result when they're aware of a risk that it will occur, and in either case it is unreasonable, in the circumstances known to them, to take that risk.
What was Caldwell recklessness?
Under R v Caldwell [1982] AC 341, a defendant was reckless if they created an obvious risk and either recognised it and went ahead, or gave no thought to it. That meant people could be convicted for risks they never saw.
Does the R v G test apply to offences other than criminal damage?
R v G was decided under the Criminal Damage Act 1971, but its subjective approach to recklessness is now applied generally in criminal law.