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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Commissioner of Police v Caldwell [1982]
UKHL 1 (19 March 1982)
URL: http://www.bailii.org/uk/cases/UKHL/1982/1.html
Cite as: [1982] UKHL 1, [1982] AC 341
JISCBAILII_CASE_CRIME
Parliamentary Archives,
HL/PO/JU/18/241
HOUSE OF LORDS
(APPELLANT)
v.
CALDWELL
(RESPONDENT)
Lord Wilberforce
Lord Diplock
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Roskill
Lord Wilberforce
MY LORDS,
I would dismiss the appeal and answer the certified questions as suggested
by my noble and learned friend, Lord Edmund-Davies.
Lord Diplock
MY LORDS,
The facts that gave rise to this appeal are simple. The respondent had been
doing work for the proprietor of a residential hotel. He considered that he
had a grievance against the proprietor. One night he got very drunk and
in the early hours of the morning he decided to revenge himself on the
proprietor by setting fire to the hotel, in which some ten guests were
living at the time. He broke a window and succeeded in starting a fire in
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a ground floor room; but fortunately it was discovered and the flames were
extinguished before any serious damage was caused. At his trial he said
that he was so drunk at the time that the thought that there might be
people in the hotel whose lives might be endangered if it were set on
fire had never crossed his mind.
He was indicted at the Central Criminal Court upon two counts of arson
under section 1, subsections (1) and (2) respectively, of the Criminal Damage
Act 1971. That section reads as follows:
" (2) A person who without lawful excuse destroys or damages any
" property, whether belonging to himself or another ....
Count 1 contained the charge of the more serious offence under section
1(2) which requires intent to endanger the life of another or recklessness as
to whether the life of another would be endangered. To this count the
respondent pleaded not guilty. He relied upon his self-induced drunkenness
as a defence, on the ground that the offence under subsection (2) was one
of " specific intent" in the sense in which that expression was used in
speeches in this House in Reg. v. Majewski [1977] AC 443. Count 2
contained the lesser offence under section 1(1) to which the respondent
pleaded guilty.
The learned recorder directed the jury that self-induced drunkenness was
not a defence to count 1, and the jury convicted him on this count. The
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The question of law certified for the opinion of this House was:
" and
" (b) Whether the defendant was reckless as to whether the life of
" another would be endangered, within the meaning of Section
" 1(2)(b) of the Criminal Damage Act 1971 ".
The question recognises that under section 1 (2)(b) there are two alternative
states of mind as respects endangering the life of another, and that the
existence of either of them on the part of the accused is sufficient to
constitute the mens rea needed to convert the lesser offence under section
1(1) into the graver offence under section 1(2). One is intention that a
particular thing should happen in consequence of the actus reus, viz., that
the life of another person should be endangered, (this was not relied on by
the prosecution in the instant case). The other is recklessness as to whether
that particular thing should happen or not. The same dichotomy of mentes
reae, intention and recklessness, is to be found throughout the section; in
subsection (1) and paragraph (a) of subsection (2) as well as in paragraph
(b); and " reckless " as descriptive of a state of mind must be given the
same meaning in each of them.
In the Act of 1861, the word consistently used to describe the mem rea
that was a necessary element in the multifarious offences that the Act created
was " maliciously " —a technical expression, not readily intelligible to juries,
which became the subject of considerable judicial exegesis. This culminated
in a judgment of the Court of Criminal Appeal in Reg. v. Cunningham [1957]
2 Q.B. 396 which approved, as an accurate statement of the law, what had
been said by Professor Kenny in the first edition of his Outlines of Criminal
Law published in 1902:
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real risk of its having the relevant harmful consequences; but, granted this,
recklessness covers a whole range of states of mind from failing to give
any thought at all to whether or not there is any risk of those harmful
consequences, to recognising the existence of the risk and nevertheless
deciding to ignore it. Conscious of this imprecision in the popular meaning
of recklessness as descriptive of a state of mind, Professor Kenny, in the
passage quoted, was, as it seems to me, at pains to indicate by the words
in brackets the particular species within the genus: reckless states of mind,
that constituted " malice " in criminal law. This parenthetical restriction on
the natural meaning of recklessness was necessary to an explanation of the
meaning of the adverb " maliciously " when used as a term of art in the
description of an offence under the Malicious Damage Act 1861 (which was
the matter in point in Reg. v. Cunningham); but it was not directed to
and consequently has no bearing on the meaning of the adjective " reckless "
in section 1 of the Criminal Damage Act 1971. To use it for that purpose
can, in my view, only be misleading.
When cases under section 1(1) of the new Act, in which the prosecution's
case was based upon the accused having been " reckless as to whether . . .
" property would be destroyed or damaged ", first came before the Court
of Appeal, the question as to the meaning of the expression " reckless " in
the context of that subsection appears to have been treated as soluble
simply by posing and answering what had by then, unfortunately, become
an obsessive question among English lawyers. Is the test of recklessness
" subjective " or " objective "? The first two reported cases, in both of
which judgments were given off the cuff, are first Reg. v. Briggs which is
reported in a footnote to the second, Reg, v. Parker (Daryl) [1977] 1 W.LR.
600. Both classified the test of recklessness as " subjective ". This led the
court in Briggs to say: " A man is reckless in the sense required when he
" carries out a deliberate act knowing that there is some risk of damage
" resulting from that act but nevertheless continues in the performance of
" that act." This leaves over the question whether the risk of damage may
not be so slight that even the most prudent of men would feel justified in
taking it, but it excludes that kind of recklessness that consists of acting
without giving any thought at all to whether or not there is any risk of
harmful consequences of one's act; even though the risk is great and would
be obvious if any thought were given to the matter by the doer of the
act. Parker, however, opened the door a chink by adding as an alternative
to the actual knowledge of the accused that there is some risk of damage
resulting from his act and his going on to take it, a mental state described as
" closing his mind to the obvious fact " that there is such a risk.
Reg. v. Stephenson [1979] 1 Q.B. 695, the first case in which there was full
argument, though only on one side, and a reserved judgment, slammed the
door again upon any less restricted interpretation of " reckless " as to whether
particular consequences will occur than that originally approved in Briggs.
The appellant, a tramp, intending to pass the night in a hollow in the side
of a haystack, had lit a fire to keep himself warm; as a result of this the
stack itself caught fire. At his trial, he was not himself called as a witness
but a psychiatrist gave evidence on his behalf that he was schizophrenic and
might not have had the same ability to foresee or appreciate risk as a
mentally normal person. The judge had given to the jury the direction on
the meaning of reckless that had been approved in Parker. The argument
for the appellant on the appeal was that this let in an " objective " test
whereas the test should be entirely " subjective". It was buttressed by
copious citation from previous judgments in civil and criminal cases where
the expressions " reckless " or " recklessness " had been used by judges in
various contexts. Counsel for the Crown expressed his agreement with the
submissions for the appellant. The judgment of the court contains an
analysis of a number of the cited cases, mainly in the field of civil law.
These cases do not disclose a uniform judicial use of the terms; and as
respects judicial statements made before the current vogue for classifying
all tests of legal liability as either " objective " or " subjective " they are
not easily assignable to one of those categories rather than the other. The
court, however, reached its final conclusion by a different route. It made
the assumption that although Parliament in replacing the Act of 1861 by the
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If one is attaching labels, the latter state of mind is neither more nor
less "subjective" than the first. But the label solves nothing. It is a
statement of the obvious; mens rea is, by definition, a state of mind of the
accused himself at the time he did the physical act that constitutes the
actus reus of the offence; it cannot be the mental state of some non-existent,
hypothetical person.
of there being any such risk or has recognised that there was some risk
involved and has nonetheless gone on to do it. That would be a proper
direction to the jury; cases in the Court of Appeal which held otherwise
should be regarded as overruled.
Where the charge is under section 1(2) the question of the state of mind
of the accused must be approached in stages, corresponding to paragraphs
(a) and (b). The jury must be satisfied that what the accused did amounted
to an offence under section 1(1), either because he actually intended to
destroy or damage the property or because he was reckless (in the sense that
I have described) as to whether it might be destroyed or damaged. Only
if they are so satisfied must the jury go on to consider whether the accused
also either actually intended that the destruction or damage of the property
should endanger someone's life or was reckless (in a similar sense) as to
whether a human life might be endangered.
Turning now to the instant case, the first stage was eliminated by the
respondent's plea of guilty to the charge under section 1(1). Furthermore
he himself gave evidence that his actual intention was to damage the hotel
in order to revenge himself on the proprietor. As respects the charge under
section 1(2) the prosecution did not rely upon an actual intent of the
respondent to endanger the lives of the residents but relied upon his having
been reckless whether the lives of any of them would be endangered. His
act of setting fire to it was one which the jury were entitled to think
created an obvious risk that the lives of the residents would be endangered;
and the only defence with which your Lordships are concerned is that
the respondent had made himself so drunk as to render him oblivious of
that risk. If the only mental state capable of constituting the necessary
mens rea for an offence under section 1(2) were that expressed in the words
" intending by the destruction or damage to endanger the life of another ",
it would have been necessary to consider whether the offence was to be
classified as one of " specific " intent for the purposes of the rule of law
which this House affirmed and applied in Regina v. Majewski; and this it
plainly is. But this is not, in my view, a relevant inquiry where " being
" reckless as to whether the life of another would be thereby endangered "
is an alternative mental state that is capable of constituting the necessary
mens rea of the offence with which he is charged.
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" he would have been aware had he been sober, such unawareness is
" immaterial ".
So, in the instant case, the fact that the respondent was unaware of the
risk of endangering the lives of residents in the hotel owing to his self-induced
intoxication, would be no defence if that risk would have been obvious
to him had he been sober.
My Lords, the Court of Appeal in the instant case regarded the case as
turning upon whether the offence under section 1 (2) was one of " specific "
intent or " basic" intent. Following a recent decision of the Court of
Appeal by which they were bound, Reg. v. Orpin (1980) 70 Cr. App. R. 306,
they held that the offence under section I (2) was one of " specific " intent
in contrast to the offence under section 1(1) which was of basic intent. This
would be right if the only mens rea capable of constituting the offence were
an actual intention to endanger the life of another. For the reasons I have
given, however, classification into offences of " specific " and " basic " intent
is irrelevant where being reckless as to whether a particular harmful
consequence will result from one's act is a sufficient alternative mens rea.
My Lords, the learned recorder's summing-up was not a model of clarity.
Contrary to the view of the Court of Appeal she was right in telling the
jury that in deciding whether the respondent was reckless as to whether the
lives of residents in the hotel would be endangered, the fact that, because
of his drunkenness, he failed to give any thought to that risk was
irrelevant; but there were other criticisms of the summing-up made by the Court of Appeal which your
Lordships very properly have not been invited to consider, since it makes
no practical difference to the respondent whether the appeal is allowed or
not. Since it is not worth while spending time on going into these criticisms,
I would dismiss the appeal.
Lord Edmund-Davies
MY LORDS,
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" (1) A person who without lawful excuse destroys or damages any
" property belonging to another intending to destroy or damage any
" such property or being reckless as to whether any such property would
" be destroyed or damaged shall be guilty of an offence.
" (2) A person who without lawful excuse destroys or damages any
" property, whether belonging to himself or another—
" (a) intending to destroy or damage any property or being reckless
" as to whether any property would be destroyed or damaged;
"and
(1) Recklessness
The words " intention " and " recklessness " have increasingly displaced
in statutory crimes the word " maliciously, " which has frequently given rise
to difficulty in interpretation. In Cunningham [1957] 2 Q.B. 396, Byrne J.
in the Court of Criminal Appeal cited with approval the following passage
which has appeared in Kenny's Outline of Criminal Law from its first
edition in 1902 onwards:
Byrne J.'s comment was laconic and unqualified: "We think that this is
" an accurate statement of the law ... in our opinion the word
" ' maliciously' in a statutory crime postulates foresight of consequence ".
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" A person is reckless if, (a) knowing that there is a risk that an
" event may result from his conduct or that a circumstances may
" exist, he takes that risk, and (b) it is unreasonable for him to take
" it, having regard to the degree and nature of the risk which he knows
" to be present."
It was surely with this contemporaneous definition and the much respected
decision of Cunningham (1957) in mind that the draftsman proceeded to
his task of drafting the Criminal Damage Act 1971.
prove fatal, for " A person cannot, in any intelligible meaning of the words,
" close his mind to a risk unless he first realises that there is a risk; and if
" he realises that there is a risk, that is the end of the matter." (Glanville
Williams, Textbook of Criminal Law, p.79).
" (b) shall decide whether he did intend or foresee that result by
" reference to all the evidence, drawing such inferences from the
" evidence as appear proper in the circumstances ".
My Lords, it is unnecessary to examine at length the proposition that
ascertainment of the state of mind known as " recklessness " is a subjective
exercise, for the task was expansively performed by Geoffrey Lane L.J. (as
he then was) in Stephenson [1977] 1 Q.B. 495. And, indeed, that was the
view expressed by the learned recorder herself in the instant case when,
citing Briggs [1977] 1 All E.R. 475, at 477, she directed the jury at one
stage in these terms:
" 'A man is reckless when he carries out a deliberate act, knowing
" 'that there is some risk of damage resulting from that act, but
" 'nevertheless continues in the performance of that act' ... That
" came, in fact, in a case of straight arson and damage to property,
" but in this case you would probably feel that you had to add after
" the words to fit this section of the Act,' some risk of damage to life',
" ... because that is what we are concerned with. I see both counsel
" nod assent to that. So, we can stay on common ground . . . ."
The first count charged the respondent with " Arson contrary to Section
" 1(2) and (3) of the Criminal Damage Act 1971 ", and the particulars of
the offence were in the following terms:
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My Lords, the very layout of section 1 makes clear that a state of mind
over and beyond that essential for a conviction under section 1(1) has to be
established before the graver crime created by section 1(2) can be brought
home. The latter has features both of an offence against property and an
offence against the person, and a special " intent" or a special " recklessness "
is involved, a state of mind " ulterior " to the " basic " intent or recklessness
which is sufficient for section 1(1). And "intention" and "recklessness"
are more than birds of a feather; they are blood-brothers; so much
so that Austin included " recklessness" within the term "intention".
(Jurisprudence", 4th Edition, Volume 1, pp.436, 441, 442). As James L.J.
said in Reg. v. Venna [19761 Q.B. 421, at 429C, " In many cases the dividing
" line between intention and recklessness is barely distinguishable ". So in
O'Driscoll (1977) 65 Cr. App. R. 50, where the charge was one of
manslaughter caused by setting fire to a house, Waller L.J., giving the
judgment of the Court of Appeal (Criminal Division) said (at p.55):
". . . We are of the opinion in this case that the unlawful act relied
" on by the learned judge of damaging the building of another by fire
" involved a basic intent .... It would have been different in our
" view if the intent had involved the question of danger to the life of
" others, as in subsection (2) of section 1 of the Criminal Damage Act
" 1971, because that would not be inherent in the actus reus if there
" was an intention to endanger the life of another of recklessness as
" to whether the life of another would be endangered or not. As I
" have already stated, in our view this was a crime of basic intent . . .
" and therefore the defence of drunkenness does not avail at all: see
" D.P.P. v. Majewski [1977] AC 443 ".
And in Stephenson (ante), to which I have already referred, where the charge
was laid under section 1(1), Geoffrey Lane L.J. said (at page 704 B):
" ' intent', but not to a charge of any other crime. The Criminal
"Damage Act 1971, section 1(1) involves no specific intent: see Reg.
10
That Geoffrey Lane L.J. was referring in his final sentence only to section
1(1) of the Act is made clear by its context, and in Orpin (1980) 70 Cr.
App. R. 306, at 312 Eveleigh L.J. said:
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But the trial judge here unfortunately failed to differentiate between the
different types of arson embraced by section 1 of the 1921 Act by directing
the jury without qualification that " Arson is an offence of basic intent".
This led her, in purported pursuance of Majewski, to conclude that—
Something more must be said about (b), having regard to the view
expressed by my noble and learned friend, Lord Diplock, that the speech of
the Lord Chancellor in Majewski " is authority that self-induced intoxication
" is no defence to a crime in which recklessness is enough to constitute the
" necessary mens rea ". It is a view which, with respect, I do not share. In
common with all noble and learned Lords hearing that appeal,
Lord Elwyn-Jones L.C. adopted the well-established (though not universally
favoured) distinction between basic and specific intents. Majewski related
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11
For the foregoing reasons, the Court of Appeal were in my judgment right
in quashing the conviction under section 1(2)(b) and substituting a finding
of guilty of arson contrary to section 1(1) and (3) of the 1971 Act. It
follows, therefore, that I agree with learned counsel for the respondent that
the certified point of law should be answered in the following manner:
My Lords, it was recently predicted that, " There can hardly be any doubt
" that all crimes of recklessness except murder will now be held to be crimes
" of basic intent within Majewski" (Glanville Williams, " Textbook of
" Criminal Law", 1978, page 431). That prophecy has been promptly
fulfilled by the majority of your Lordships, for, with the progressive
displacement of " maliciously " by " intentionally or recklessly " in statutory
crimes, that will surely be the effect of the majority decision in this appeal.
That I regret, for the consequence is that, however grave the crime charged,
if recklessness can constitute its mens rea the fact that it was committed in
drink can afford no defence. It is a very long time since we had so harsh
a law in this country. Having revealed in Majewski (page 495B-497C) my
personal conviction that, on grounds of public policy, a plea of drunkenness
cannot exculpate crimes of basic intent and so exercise unlimited sway in
the criminal law, I am nevertheless unable to concur that your Lordships'
decision should now become the law of the land. For, as Eveleigh L.J. said
in Orpin (ante, at page 312):
By way of a postscript I would add that the majority view demonstrates yet
again the folly of totally ignoring the recommendations of the Butler
Committee (Report on Mentally Abnormal Offenders. Cmnd 6244, 1975,
paragraphs 18, 53-58).
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MY LORDS,
12
Lord Roskill
MY LORDS,
I had prepared an opinion of my own in this appeal but having had the
advantage of reading in draft the speech of my noble and learned friend,
Lord Diplock, I am satisfied that no useful purpose would be served by
delivering that speech. I agree in every respect with what my noble and
learned friend has said in his speech and with his proposed answers to the
questions certified. For the reasons he gives I agree that this appeal should
be dismissed.
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