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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.
In 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 Council3 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 development 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
 M&W 109. Ibid; p. 405-6 . 3  AC 375. 4 Practice Statement (Judicial Precedent)  1 W.L.R 1234. 5  AC 341.
injured. The defendant was indicted under sections 1(1) and 1(2) of the Criminal Damage Act 19716 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 other 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: ‚Whether 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. Cunningham12 where Byrne
Hereafter ‘the 1971 Act’. 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  2 QB 396; at p.399.
J held it to be an ‚accurate statement of the law‛13 adding that ‘malice’ is not to be taken ‚in the old vague sense of wickedness in general‛.14 In R v. Mowatt15 Lord Diplock himself discussed the meaning of ‘malice’ as including an awareness that physical harm to others was a possible consequence of the act and upholding the precedent set by Byrne J in Cunningham that ‚maliciously in statutory crime postulates a foresight of consequences‛16 and stating that ‚upon this proposition we do not wish to cast any doubt‛.17 Shortly after Mowatt the Law Commission voiced its approval of Cunningham and by implication Professor Kenny’s definition of recklesness and identified "intent to do the forbidden act or recklessness in relation to its foreseen consequences [as the] essential mental element in the existing malicious damage offences".18 On the foot of these decisions Parliament then passed the 1971 Act the aims which are, firstly, according to its long title, to revise the law and, secondly, to simplify the law.19 This is significant as the term ‘malicious’ which formerly constituted the mental element of the offence had been purposefully replaced with the term ‘reckless’. Does this mean that the intention of Parliament was for ‘reckless’ to simply take over the meaning of ‘malicious’ or were Parliament indicating that the new term should revise and simplify the old? On this matter it is difficult to draw any definitive conclusion for although it had voiced its approval of Cunningham the Law Commission had also suggested that the main motivation for a terminological shift from ‘malicious’ to ‘reckless’ is the need for a simple and clear statement of the law in order to avoid confusion and difficulty of interpretation.20 However, the Law Commission fails to specify either the confusions and difficulties it wished to avoid or which aspects of Professor Kenny’s definition, and its adoption by the courts, had led to difficulties and confusions. It goes on to propose the following definition of ‘recklessness’: A person is reckless if, (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and (b) it is unreasonable
Cunningham; at p.400. Cunningham; at p.399. 15  1 QB 421. 16 Mowatt; at p.425 [emphasis added]. 17 Mowatt; at p.425. 18 Law Commission Working Paper No.23 (1969); p.20 taken from R v. G & Anor  4 All ER 765, at p. 776. 19 Law Commission Working Paper No.23 (1969); p.17 taken from R v. G & Anor; at p.776. 20 Law Commission Working Paper No.29 (1970); p.17 taken from R v. G & Anor; at p.776.
for him to take it having regard to the degree and nature of the risk which he knows to be present.21 The test, upheld by the Court of Appeal (Criminal Division) in R v. Briggs,22 is certainly subjective as ‘recklessness’ is defined advertently and requires not that a reasonable man but that the accused foresees the harm or the risk and goes on to take it anyway. This definition was again upheld but expanded, although arguably so, by Geoffrey Lane LJ in R v. Parker (Daryl)23 in order to account for the possibility of a defendant ‚closing his mind to the obvious fact that there is some risk of damage resulting from that act‛.24 In spite of this confusions and difficulties of meaning still abound as Glanville Williams in the 1978 edition of his Textbook on Criminal Law writes that: The question is not merely one of ascertaining the ordinary popular meaning of ‘recklessness’ (assuming there is such a meaning). For legal purposes we need a word to express the position intermediate between inadvertent negligence on the one hand and intention on the other … There is no word more suitable than ‘recklessness’. 25 Smith and Hogan, also writing around this time, point to a further problem of in interpreting ‘recklessness’. Unfortunately, the courts have frequently used ‘reckless’ to mean what is … negligence or gross negligence, and they continue to do so. This is confusing and, in light of the clear recognition of the term in the sense used here (i.e. to mean subjective recklessness) in important recent criminal statutes, it is submitted that it is desirable that it should be used only in that sense in criminal law. 26 In addition to these ambiguities over the dividing line between negligence and recklessness there are further implications that ‘recklessness’, as a subjective, had been cast in doubt. Moreover, this uncertainty was not limited to the jurisdiction of England and Wales.
Law Commission Working Paper No. 31 (1970); p.48 taken from R v. G & Anor; at p.777.  1 WLR 605 23  2 All ER 37. 24 Parker; at p.40. 25 Williams, G. (1978) Textbook on Criminal Law; p.70 taken from McAleese, M. (1981); at p.30. 26 Smith & Hogan. (1978) Criminal Law; p.53,taken from McAleese, M. (1981); at p.30.
Around 5 years before Caldwell came before the House of Lords the Irish Supreme Court was hearing The People (DPP) v. Murray27 a case which, as of 2008, was still considered to be the leading authority on the meaning of recklessness28 and in which ‚*t+he judgments of Henchy, Walsh and Griffin JJ make it clear that the required mens rea for the purposes of recklessness as to consequences is subjective and not objective‛.29 Although again this is disputable as McAleese states that, at least two of the five Supreme Court judges (Walsh J. and Henchy J.) appear to approve a broad notion of ‚recklessness‛, which accords with Lord Diplock’s in Caldwell … The three remaining can be interpreted more or less as one pleases, but are probably best left uninterpreted until the issue is more specifically and coherently debated sometime in the future.30 There can be no doubt that given the outright ambiguity and lack of certainty in the law at the time, that Caldwell could certainly be labelled a ‘hard case’. Note however that this is for reasons in excess of those extracted from Winterbottom. The Caldwell case is ‘hard’ not simply because of public policy considerations in relation to drunkenness but because the issue of recklessness was at the heart of the case. This problem is in fact noted by Lord Diplock, for example, he labels the distinction between the subjective and objective tests as ‚impractical‛ and states that he can see no reason why they should be perpetuated by Parliament through the 1971 Act. ‚One would think,‛ he adds, ‚that the sooner they were got rid of, the better.‛31 Lord Diplock also argues that, in terms of the mental element, ‚neither state of mind seems … less blameworthy then the other‛32 and that it is not a ‛practicable distinction for use in a trial by jury‛.33 Furthermore, he rejects the assumption that Parliament, in their attempts to revise and simplify the law, had replaced the word ‘malicious’ with the word ‘reckless’ only to have them mean the same thing.34 That is, he rejects the perpetuation of the
 IR 360. The People (DPP) v. Cagney *2008+ 2 IR 111. Geoghegan J. states at p. 137 that ‚*w+here ‚recklessness‛ is a constituent of a criminal offence in Ireland, the leading authority on its meaning is The People v. Murray  I.R. 360.‛ 29 The People (DPP) v. Cagney  2 IR 111; at p.137-8. 30 McAleese, M. (1981) ‘Just what is Recklessness?’; at p.36-7. 31 Caldwell; at p. 352e-f. 32 Ibid; at p. 352b-d. 33 Ibid. 34 Ibid; at p.353e-g.
definition of ‘recklessness’ found in Cunningham and Briggs and forwards an ordinary language definition35 which challenges the distinction between recklessness and negligence.36 [Recklessness means] not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter it would be obvious that there was.37 This definition clearly possess both subjective and objective elements and in this respect the defendant in Caldwell although not subjectively reckless was certainly objectively reckless since, if he had given thought to the matter, he would have realised that setting fire to a hotel would endanger lives. On this definition, however, Lord Wilberforce and Lord Edmund-Davies dissented with the latter expressing his ‚respectful but profound disagreement‛38 and voicing a preference for Professor Kenny’s definition. The decision was nonetheless upheld by the majority of the House and, as one recent commentator noted, it became ‚one of those situations in which an extract from a judgement is invested with the attributes of a statutory provision‛.39 This leads to the second element of the topic under discussion, and the question as to whether Caldwell created ‘bad law’? In this respect Ashworth illustrated a serious flaw in Lord Diplock’s definition. The effect was to convict young children and mentally impaired defendants by applying them to an objective standard of foreseeability that they could not meet … [T]he absence of a capacity exception produced unfair victims in some cases.40
Caldwell; at p.353h-354a. Ashworth, A. (2006); at p.185. 37 Caldwell; at p.353h-4a [emphasis added]. Although there is no space to deal with it here, on the same day as Caldwell in R v. Lawrence (Stephen)  All ER 971 Lord Diplock offered a formulation of recklessness in terms of driving which, although similar to Caldwell required the added proof that ‚an obvious and serious risk was created‛ (at p.11). 38 Ibid; at p.357e-f. 39 Reed, A. (2003) ‘Court of Appeal -Objective Recklessness and Criminal Damage’; at p.3. 40 Ashworth, A. (2006); at p. 186.
Smith and Hogan also note that Lord Diplock’s redefining of the mental element in criminal damage had the potential to produce injustice. [Caldwell] allowed for conviction on the basis of D having no state of mind as to the risk of the proscribed harm. This most significant principled failing of the Caldwell approach was its potential to create injustice, and this led, ultimately to its downfall.41 This potential for injustice and unfairness is ‚epitomised‛42 in the case of Elliott v. C.43 The accused in Elliott was a 14 year old girl who was in a remedial class in school and of limited intelligence. One day, instead of returning home she stayed out all night and at around 5am she entered a shed, poured white spirit on the carpet and set it alight. The fire quickly got out of control and the girl left the shed. The defendant was charged under section 1(1) of the 1971 Act and on appeal Glidewell J, having considered Caldwell, held that ‚it is not a defence that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it.‛44 The defendant was thus found guilty on the basis of what was foreseeable to a reasonable man of which the defendant clearly was not. The decision was held with much reservation, and Geoff LJ who supported Glidewell J’s conclusion did so only because he felt constrained by the authority of Caldwell. He went on to voice his disapproval in no uncertain terms. ‚I feel … that I would be lacking in candour if I were to conceal my unhappiness about the conclusion which I feel compelled to reach.‛45 In addition to clear judicial reservation, academics as esteemed as Glanville Williams identify Caldwell as ‚the most serious injury inflicted on the developing criminal law‛46 and note that the attitude towards the mental element contained therein is ‚perverse‛.47 Sir John Smith wrote that ‚[t]he decision sets back the law concerning the mental elements in criminal damage in theory to before 1861‛.48 Furthermore, Caldwell opened up a possible loophole or lacuna ‚where D had considered whether there was a risk and decided that there was none or where D had foreseen a risk and believed he had taken ample precautions
Smith & Hogan (2005) Criminal Law; at p.105. Crosby, C. (2008) ‘Recklessness – the Continuing Search for a Definition’; at p.8. 43  2 All ER 1005. 44 Elliott; at p.1008e-f. 45 Elliott; at p.1010b-c. 46 Williams, G. (1981) ‘Recklessness Redefined’; at p.283. 47 Ibid. 48  Crim LR 393; taken from Smith & Hogan (2005); at p. 106.
to prevent it from happening … this would excuse the genuine but negligent mistake-maker from liability for recklessness‛.49 Yet in spite of this the application of Caldwell continued on its ‚slippery slope towards intolerable injustice.‛50 In R v. Stephen Malcolm51 and R v. Coles,52 for example, the appellants were both 15 years old and were both convicted, again with much judicial reservation,53 on the basis of what is foreseeable to a reasonable man. After 22 years, and with the weight of criticism having become somewhat overwhelming, the House of Lords unanimously overruled Caldwell in R v. G & Anor54 a case involving two defendants aged 11 and 12. The two defendants were on a camping trip when they accessed the back yard of a shop, opened up bundles of newspapers, set some of them alight, threw them under a large wheelie-bin and left the scene. The fire spread to the shop and adjoining buildings causing £1 million in damages. When the case came to the House of Lords Lord Bingham, in addition to speaking of the general sense of unfairness, injustice and moral repugnancy, on the part of judges, the juries, academics and practitioners alike, also notes that, the model direction formulated by Lord Diplock is capable of leading to obvious unfairness … It is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension. Furthermore, Lord Bingham holds that Caldwell is a misinterpretation of the 1971 Act which is ‚offensive to principle and is apt to cause injustice‛ 55 and that ‚the need to correct the misinterpretation is compelling‛. 56 In terms of the mental element of the case Lord Bingham views the principle of actus non facit reum nisi mens sit rea as a valuable principle in criminal law, as the mind is clearly not blameworthy if ‚one genuinely does not perceive the risk‛. 57
Crosby, C. (2008); at p.2. Smith & Hogan (2005); at p.106. 51  79 Cr App R 334. 52  1 Cr App Rep 157. 53 Note for example the comments of Lord Ackner in Malcolm. 54  4 All ER 765. 55 R v. G & Anor; at p.784-5, paragraphs 32-35. 56 R v. G & Anor; at p.784-5, paragraphs 32-35. 57 R v. G & Anor; at p.784-5, paragraphs 32-35.
Returning to Judge Rolfe’s adage that ‚hard cases … are apt to introduce bad law‛ it seems that ‘hard cases’ are those in which hardship, injustice or unfairness, either to the public, the plaintiff or the defendant, is at issue in an area of law that is noticeably ambiguous or vague in terms of interpretative guidelines and actual meaning. This gives rise to the possibility that the law may be manipulated – revised or simplified – in this area in order to adapt it to a particular public or moral issue without the proper foresight or examination being given to the consequences of that manipulation. The consequence of this lack of foresight and jurisprudence is to open the door to ‘bad law’ which leads to hardship, injustice and unfairness and, as a result, destabilises, muddies and even antiquates the legal waters. In this there is a certain amount of irony, for in attempting ameliorate injustice and unfairness the courts may actually be creating it, there is also, and more importantly, a salutary lesson to be learned here. For, although public policy and moral considerations may provide inescapable interpretative sway, although the art of interpretation by its very nature excludes the possibility of absolute rigour, although ‘bad law’ since the Practice Statement now has a final remedy, and although the law itself in its development often requires revision and simplification, it still remains of paramount importance that the practical application of the law does not and cannot become experimental in nature.
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Bibliography Ashworth, A. (2006) Principles of Criminal Law (5th Edition). Oxford: Oxford University Press. Crosby, C. (2008) ‘Recklessness – the Continuing Search for a Definition.’ Journal of Criminal Law, 72: 4 (313). Haralambous, N. (2003) ‘Retreating from Caldwell: restoring subjectivism.’ New Law Journal, 153: 7104. McAleese, M. (1981) ‘Just what is Recklessness?’ Dublin University Law Journal, p.29-37. Reed, A. (2003) ‘Court of Appeal-Objective Recklessness and Criminal Damage.’ Journal of Criminal Law, 67:2 (91). Smith & Hogan. (2005) Criminal Law (11th edition, by Ormerod, D) Oxford: Oxford University Press. Williams, G. (1981) ‘Recklessness Redefined.’ Cambridge Law Journal, 40:2 (252).
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