R. v G R. v R
House of Lords 16 October 2003
 UKHL 50;  1 A.C. 1034;  3 W.L.R. 1060;  4 All E.R. 765;  1 Cr. App. R. 21; (2003) 167 J.P. 621;  Crim. L.R. 369; (2003) 167 J.P.N. 955; (2003) 100(43) L.S.G. 31; Times, October 17, 2003; Official Transcript Subject: Criminal law Keywords: Capacity; Criminal damage; Knowledge; Mens rea; Recklessness Summary: A person who gave no thought to the risk of damage or injury resulting from his conduct could not be found guilty of a serious criminal offence on the basis of recklessness if, by reason of his age or capacity, the risk would not have been obvious to him even if he had thought about it. Abstract: A person acts recklessly within the meaning of the Criminal Damage Act 1971 s.1 in respect of a result when he is aware of a risk that it will occur, and it is, in the circumstances known to him, unreasonable to take that risk. G and R appealed against a decision ( EWCA Crim 1992,  3 All E.R. 206) upholding their convictions for arson under the Criminal Damage Act 1971 s.1(1) and s.1(3). In August 2000 the appellants, who were then aged 11 and 12 respectively, went camping without their parents' permission. During the night they set fire to newspapers in the yard at the back of a shop and threw the lit newspapers under a wheelie bin. They left the yard without putting out the fire. The burning newspapers set fire to the bin and subsequently spread to the shop. Approximately GBP 1 million worth of damage was caused to the shop and adjoining buildings. The appellants' case at trial was that they expected the newspapers to burn themselves out on the concrete floor of the yard and it was accepted that neither of them appreciated the risk of the fire spreading in the way that it did. The trial judge had directed the jury in accordance with the objective test given in R. v Caldwell (James)  A.C. 341 . The Court of the Appeal certified a point of law of general public importance, namely whether a defendant could properly be convicted under s.1 of the 1971 Act on the basis that he was reckless as to whether property was damaged when he gave no thought to the risk and 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. Held, allowing the appeal, that s.1 of the 1971 Act had been enacted following the draft proposed in the Law Commission Report No.29 and in Working Paper No.23 which preceded it. Those materials revealed a clear intention to replace the old fashioned expression "maliciously" with the more familiar expression "reckless". Parliament intended that recklessness should be given the meaning enunciated in R. v Cunningham (Roy)  2 Q.B. 396 . No change in the mens rea necessary for proof of the offence had been intended and, in holding otherwise, the majority in Caldwell had
misconstrued s.1. A departure from the House of Lords decision in Caldwell was justified on the grounds that (1) conviction of serious crime should depend on proof not simply that a defendant caused an injurious result to another but that his state of mind when so acting was culpable; (2) the model direction formulated in Caldwell was capable of leading to obvious unfairness. It was neither moral nor just to convict a defendant, least of all a child, on the strength of what someone else would have apprehended if that defendant himself had no such apprehension; (3) the judgment in Caldwell had been subjected to vigorous academic and judicial criticism, and (4) the majority's misinterpretation of "recklessly" in s.1 was offensive to principle and apt to cause injustice. Accordingly, the need to correct that misinterpretation was compelling. Thus, a person acted recklessly within the meaning of s.1 of the 1971 Act with respect to (i) a circumstance when he was aware of a risk that it existed or would exist; (ii)...