Regina v. G and another (Appellants) (On Appeal from the Court of Appeal (Criminal Division)).

For criminal damage under section 1 of the Criminal Damage Act 1971, recklessness is subjective. The defendant must be aware of a risk that the relevant circumstance exists or result will occur. Taking that risk must also be unreasonable in the circumstances known to the defendant.

An obvious risk may support an inference of actual awareness, but it cannot replace proof of that awareness. Mere failure to consider a risk is insufficient, even where a reasonable adult would have recognised it. Neither an age-adjusted objective comparison nor speculation about what the defendant would have appreciated upon reflection is the statutory test. The objective rule in R v Caldwell was overruled. The distinct rules governing self-induced intoxication and reckless driving were left undisturbed.

Two boys aged 11 and 12 lit newspapers beneath a plastic bin and left them burning. The fire spread unexpectedly to commercial premises and caused about £1 million of damage. Neither boy appreciated any risk that the fire would spread to the building.

They were convicted of arson under sections 1(1) and 1(3) of the Criminal Damage Act 1971. The trial judge directed the jury under the objective test in R v Caldwell [1982] AC 341, although both the judge and jury expressed concern about its fairness. The Court of Appeal upheld the convictions in [2002] EWCA Crim 1992, reported at [2003] 3 AllER 206, because it was bound by that authority.

The central issue was whether a person who had given no thought to a risk could be reckless under section 1 when the risk would have been obvious to an ordinary adult but would not have been obvious to that person because of age or personal characteristics.

1. Disposition. The House unanimously allowed the appeal and quashed both convictions. Lord Bingham of Cornhill delivered the leading speech. Lord Browne-Wilkinson, Lord Steyn, Lord Hutton and Lord Rodger of Earlsferry agreed with his proposed order and his construction of section 1 of the Criminal Damage Act 1971.

2. Statutory construction. Parliament used “reckless” in section 1 to preserve the subjective mental element previously associated with “maliciously”. The Law Commission materials preceding the Act showed that no substantive alteration of mens rea was intended. Per Lord Bingham, the majority in R v Caldwell [1982] AC 341 had fallen into demonstrable error by treating the earlier authorities as irrelevant and adopting an objective test. Lord Steyn and Lord Rodger gave additional reasons supporting that conclusion.

3. The governing test. A person acts recklessly under section 1 with respect to a circumstance if aware of a risk that it exists or will exist, and with respect to a result if aware of a risk that it will occur. In either case, it must be unreasonable to take the risk in the circumstances known to that person. Actual awareness is therefore essential.

4. Proof and personal characteristics. Per Lord Bingham, an obvious and significant risk may provide strong evidence from which a jury can infer awareness. It is not conclusive and cannot substitute the perception of an ordinary adult for the defendant's state of mind. It was neither moral nor just to convict a child solely because another person would have apprehended the risk. The House rejected both a comparison with a reasonable child of the same age and a counterfactual inquiry into whether the risk would have been obvious to the particular defendant upon reflection. Those approaches remained objective, invited speculation and lacked statutory support.

5. Departure from precedent and limits. Stability weighed against departing from a rule applied for more than 20 years. Departure was nevertheless compelling because R v Caldwell misconstrued the statute, offended the principle that serious crime requires a culpable state of mind and was capable of causing injustice. The decision did not disturb the different statutory treatment of reckless driving in R v Lawrence (Stephen) [1982] AC 510 or R v Reid [1992] 1 WLR 793. Nor did it remove the established exception concerning self-induced intoxication.

1. House of Lords: In Regina v. G and another [2003] UKHL 50, the House unanimously allowed the appeal, displaced the objective construction of recklessness and quashed the convictions.

2. Court of Appeal (Criminal Division): In [2002] EWCA Crim 1992, reported at [2003] 3 AllER 206, the court upheld the convictions. It considered the test in R v Caldwell binding and held that the trial judge had applied it correctly.

3. Crown Court: Following a jury trial before Judge Maher, both appellants were convicted of arson under sections 1(1) and 1(3) of the Criminal Damage Act 1971. Each received a one-year supervision order.