The concept of recklessness in criminal law has long been debated in terms of whether the courts should apply a subjective or an objective test. Under section 1 of the Criminal Damage Act 1971, a person acts recklessly when they are aware of a risk occurring and, despite its unreasonableness, proceed with the act. Over the last fifty years, the law on recklessness has undergone several shifts, culminating in the House of Lords decision in R v G. This ruling was significant because it overturned the objective test of recklessness set out in R v Caldwell and reinstated a subjective approach.
Case Law Prior to R v G
Before R v G, two main approaches shaped the definition of recklessness.
The first approach originated in R v Cunningham, where the courts defined recklessness as the situation where a defendant foresaw a risk of harm yet acted regardless. This subjective approach became linked with the term “malicious”, later replaced by “recklessness”, and it was supported by the wording of the Criminal Damage Act 1971. This test was clarified in later cases such as Parker, Briggs and Stephenson, where foresight of some damage was sufficient and it had to be shown that knowledge or appreciation of risk entered the defendant’s mind.
While this test provided a defendant-focused approach, it had shortcomings. One problem was that defendants might escape liability if they successfully convinced a jury that they did not foresee the risk, even where a reasonable person would have. This left a gap in criminal law where defendants could act with disregard for others but still avoid conviction.
The second approach came from MPC v Caldwell, which introduced an objective standard. Lord Diplock held that a defendant was reckless if he created an obvious risk of property damage and either gave no thought to the risk or recognised it and still went ahead. This widened liability and meant that even if a defendant genuinely did not foresee a risk, they could still be convicted if the risk was obvious to a reasonable person.
However, the Caldwell test attracted criticism. Scholars such as Ibbetson argued that it created unjust results, particularly for children or uneducated defendants who could not perceive risks in the same way as reasonable adults. This objective test criminalised those who failed to foresee risks due to personal limitations, rather than through wilful disregard.
Facts of R v G
The defendants in R v G were two boys, aged 11 and 12. They went camping without parental permission and, during the night, set fire to newspapers behind a shop. Before leaving, they placed the burning papers under a wheelie bin. The fire spread from the bin to the shop and adjoining buildings, causing approximately £1 million worth of damage.
At trial, it was accepted that the boys did not appreciate the risk of the fire spreading in the way that it did. They had not intended to burn down the building, but the risk would have been obvious to an adult.
The trial judge directed the jury to apply the Caldwell test, meaning that the failure to consider an obvious risk was sufficient mens rea for recklessness. On this basis, the jury convicted the boys.
Issue Before the Court
The issue in R v G was whether a defendant could properly be convicted under section 1 of the Criminal Damage Act 1971 for recklessness when they gave no thought to a risk due to their age or personal characteristics. In other words, the question was whether it was fair to hold children to the same objective standard as adults under the Caldwell test.
Judgement of the House of Lords
The Court of Appeal in R v G upheld the convictions, stating it was bound by Caldwell despite criticisms. However, the House of Lords reconsidered the matter and unanimously overruled the approach in Caldwell.
Lord Bingham, delivering the leading opinion, acknowledged that the Caldwell rules often led to unfairness, especially when applied to children or individuals with limited capacity. He referred to the concept of “mischievous discretion” in the law on infancy, which recognises that children above the age of eight may not fully appreciate the difference between right and wrong. Applying the same standard of obvious risk as for adults could therefore produce unjust outcomes.
Lord Bingham reformulated the test of recklessness, stating that a person acts recklessly with respect to:
- A circumstance when he is aware of a risk that it exists or will exist;
- A result when he is aware of a risk that it will occur;
and in either case, it is unreasonable in the circumstances known to him to take that risk.
This new definition restored the subjective focus of Cunningham, but with additional clarification that the defendant’s risk-taking must be unreasonable when balanced against the gravity of the potential harm. It meant that defendants would be judged based on what they actually foresaw, rather than on what a reasonable person would have seen.
The Law Following R v G
The ruling in R v G reinstated the subjective test of recklessness, but its application in later cases has been mixed. For example, in Booth v Crown Prosecution Service (2006), a pedestrian ran into the road while drunk and was convicted of criminal damage after colliding with a car. The court upheld the conviction, reasoning that despite the intoxication, the defendant must have closed his mind to the risk.
This outcome raised questions about whether the application of recklessness still retained objective elements, particularly when intoxication was involved. While R v G required proof of the defendant’s actual foresight, later decisions suggested that courts sometimes inferred awareness of risk even where it was not directly proven.
Academic commentary has also noted that in cases like Booth, the primary risk perceived by defendants might not be damage to property but rather self-injury. This raises concerns about whether R v G has been fully respected in subsequent applications or whether the courts have subtly shifted back towards objective reasoning in certain contexts.
Conclusion
R v G marked an important shift in English criminal law by rejecting the objective test of recklessness set out in Caldwell and reinstating a subjective approach rooted in Cunningham. The case recognised that defendants, especially children, should not be judged solely against the standards of reasonable adults but on what they actually foresaw at the time.
While the decision improved fairness in many respects, challenges remain in its application, particularly in cases involving intoxication or unusual circumstances. The tension between subjective and objective elements continues to provoke debate, and the law on recklessness remains an evolving area. Nonetheless, R v G stands as a leading authority in shaping how recklessness is understood in English criminal law.