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Hard Cases Make Bad Law - An examination of R v Caldwell [1982]

Hard Cases Make Bad Law - An examination of R v Caldwell [1982]

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Published by Philip Reynor Jr.
It has been said that “hard cases make bad law” (Winterbottom v. Wright [1842] M&W 109). Which judicial decision best illustrates this phrase? Your answer may be based on Irish or foreign case law, but if you choose a case from another jurisdiction your answer must be based on a reported decision; reported and unreported Irish decisions may be relied upon.

It has been said that “hard cases make bad law” (Winterbottom v. Wright [1842] M&W 109). Which judicial decision best illustrates this phrase? Your answer may be based on Irish or foreign case law, but if you choose a case from another jurisdiction your answer must be based on a reported decision; reported and unreported Irish decisions may be relied upon.

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Published by: Philip Reynor Jr. on Nov 26, 2013
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~ 1 ~
It has been said that ‚hard cases make bad law‛ (
Winterbottom v. Wright
 [1842] M&W 109). Which judicial decision best illustrates this phrase? Your answer may be based on Irish or foreign case law, but if you choose a case from another jurisdiction your answer must be  based on a reported decision; reported and unreported Irish decisions may be relied upon.
 
~ 2 ~
I
n the case of
Winterbottom v. Wright
 ,
1
 Rolfe J
states that ‚it is, no doubt, a hardship upon the
plaintiff to be without a remedy, but by that consideration we ought not be influenced. Hard
cases …
are apt to introduce bad law
.
2
 This statement indicates that Rolfe J takes
‘hard cases’
 to be those where considerations of hardship give rise to tensions between the law itself and the call for individual justice and, by implication, that the term
‘bad law’
 relates to  judicial decisions which are influenced by such considerations. Unfortunately, this does not offer much of an explanation for an expression which has become ubiquitous yet somewhat equivocal in the 150 years since
Winterbottom
. For, given the changes in the law since
Winterbottom
 , for example, from
London Tramways v. London County Council
3
 where the House of Lords rigidified the implications of precedent, to the
Practice Statement
 where Lord Gardiner LC recognised
that ‚too rigid adherence to precedent may lead to injustice … and
also unduly restrict the proper dev
elopment of the law‛
.
4
 It thus appears that in order to
offer a valuable assessment of the notion that ‘hard cases make bad law’, such that the
expression may become a meaningful one in a modern legal context, it is necessary to examine a case out of which a modern definition of this expression may be sought. One such case is
R v. Caldwell
.
5
 In
Caldwell
the defendant had done some work for the proprietor of a hotel over which they had had a disagreement. Subsequently, the defendant had gotten drunk, returned to the hotel and set fire to it in order to get revenge upon the proprietor. The fire was extinguished quickly and as such there was no serious damage done to the hotel and none of the 10 guests who were residing in the hotel at the time were
1
 [1842] M&W 109.
2
 Ibid; p. 405-6 [116].
3
 [1898] AC 375.
4
 
Practice Statement (Judicial Precedent)
[1966] 1 W.L.R 1234.
5
 [1982] AC 341.
 
~ 3 ~
injured. The defendant was indicted under sections 1(1) and 1(2) of the Criminal Damage Act 1971
6
 and pled guilty to the charge pursuant to section 1(1)
 intending to, or being reckless as to whether, the property of another would be destroyed or damaged
 and not guilty to the charge pursuant to section 1(2)
 destroying or damaging the property of another and of intending, or being reckless as to whether, the life of others would be thereby endangered. In terms of the latter charge, the defendants plea was based on the fact that he was so intoxicated at the time of the incident that the thought that he might be endangering ot
her people’s lives never crossed his
mind and that it would
 be ‚unjust that he should be
punished for a state of mind he did not possess
.
7
 On the foot of this plea the case was eventually appealed to the House of Lords on the following point of law:
‚W
hether evidence of self-induced intoxication can be relevant to the following questions
 (a) Whether the defendant intended to endanger the life of another; and (b) Whether the defendant was reckless as to whether the life of another would be endangered within the meaning of s 1(2)(
b
) of the 1971 act
.
8
 On this point, which is of general public importance, the House of Lords unanimously held that in terms of (a) drunkenness could be relevant as a defence. The more difficult question which then arises is whether drunkenness is a defence against (b) as this requires a definition of
‘reckless’ a term which
 , according to Ashworth,
has been ‚given
several different shades of meaning by the courts over the years
.
9
 
What then is ‘recklessness’? In order to
understand this term it is propitious to examine the history of its usage, a history which begins in effect with the definition of the
term ‘malicious’
. The Malicious Damage Act 1861
speaks of ‚unlawfully or maliciously‛
committing any damage, injury, or spoil to or upon any public or private property.
10
 According to Professor Kenny, as he sets out in his
Outlines on Criminal Law
 , criminal
malice
 
is taken as requiring ‚recklessness as to whether such harm should occur or not (i.e.,
the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it
)
.
11
 
Professor Kenny’s
interpretation was adopted in
R v. Cunningham
12
 where Byrne
6
 
Hereafter ‘the 1971 Act’.
 
7
 
Caldwell
; at p.347.
8
 
Caldwell
; at p.344.
9
 Ashworth, A. (2006)
Principles of Criminal Law
; at p.181.
10
 The Malicious Damage Act 1861, section 51; at p.766.
11
 
Caldwell
; at p.351 [emphasis added].
12
 [1957] 2 QB 396; at p.399.

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