D, R (on the application of) v Director of Public Prosecutions

For criminal damage, recklessness requires proof that the defendant personally foresaw the possibility of damage. The test is subjective. A court may infer foresight from the defendant’s conduct, admissions and the surrounding circumstances. Evidence that a defendant acted impulsively or failed to consider consequences carefully does not, without more, establish an inability to foresee the risk. Nor does such evidence prevent a finding of recklessness where the evidence as a whole proves subjective foresight beyond reasonable doubt.

The claimant, a child, was convicted by Sunderland Youth Court of criminal damage after punching and breaking a window. He received an absolute discharge. The magistrates relied on his admission that he had punched the window in a fit of temper and on psychiatric evidence stating that he did not always consider the consequences of his actions carefully when highly aroused.

By case stated, the claimant challenged whether the magistrates had applied the correct subjective test and whether the evidence established the foresight and intent required by R v G UKHL 50 2003.

1. Appeal dismissed. The magistrates were entitled to find beyond reasonable doubt that the claimant had the necessary foresight and intent.

2. For recklessness in criminal damage, the relevant question was whether this claimant himself foresaw the possibility of damage to the window. The court was satisfied that the magistrates understood and applied that subjective test.

3. The claimant had been seen breaking the window and had admitted punching it out in a fit of temper. Those admissions and the surrounding evidence plainly left a case to answer and supported an inference that he foresaw at least some damage.

4. The psychiatric report did not establish that the claimant was incapable of intending the consequence of his actions or of foreseeing the risk of damage. A failure to consider consequences as carefully as he should, particularly when highly aroused, was insufficient to negate subjective foresight.

5. The magistrates’ reasoning was not rendered inconsistent by the absence of an express admission of recklessness or by the evidence that the claimant had not intended to break the window. The conviction was therefore upheld and the appeal dismissed.

• Sunderland Youth Court: convicted the claimant of criminal damage and imposed an absolute discharge.
• High Court (Administrative Court): on a case stated appeal, answered the question in the affirmative and dismissed the appeal.