Commissioner of Police v Caldwell: HL 19 Mar 1981

The defendant got drunk and set fire to the hotel where he worked. Guests were present. He was indicted upon two counts of arson. He pleaded guilty to the 1(1) count but contested the 1(2) charge, saying he was so drunk that the thought there might be people never crossed his mind. Setting aside his conviction the Court of Appeal had asked: ‘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 section 1(2)(b) of the Criminal Damage Act 1971.’
Held: (Lord Diplock) It was no less blameworthy for a man whose mind was affected by rage or excitement or drink to fail to give his mind to the risk of damaging property than for a man whose mind was so affected to appreciate that there was a risk of damage to property but not to appreciate the seriousness of the risk or to trust that good luck would prevent the risk occurring: ‘I can see no reason why Parliament when it decided to revise the law as to offences of damage to property should go out of its way to perpetuate fine and impracticable distinctions such as these, between one mental state and another. One would think that the sooner they were got rid of, the better.’ The word ‘reckless’ was not just to be read as the word ‘malicious’. The ordinary use of reckless ‘surely includes 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. 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.’ and ‘a person charged with an offence under section 1(1) of the Criminal Damage Act 1971 is ‘reckless as to whether any such property would be destroyed or damaged’ if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.’ and ‘It presupposes that if thought were given to the matter by the doer before the act was done, it would have been apparent to him that there was a 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.’
Lord Diplock described the law applicable to gross negligence manslaughter by normal acts such as driving a car: ‘In ordinary usage ‘recklessly’ as descriptive of a physical act such as driving a motor vehicle which can be performed in a variety of different ways, some of them entailing danger and some of them not, refers not only to the state of mind of the doer of the act when he decides to do it but also qualifies the manner in which the act itself is performed. One does not speak of a person acting ‘recklessly’, even though he has given no thought at all to the consequences of his act, unless the act is one that presents a real risk of harmful consequences which anyone acting with reasonable prudence would recognise and give heed to. So the actus reus of the offence under sections 1 and 2 is not simply driving a motor vehicle on a road, but driving it in a manner which in fact creates a real risk of harmful consequences resulting from it.’ and described what might be a standard jury direction: ‘In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things:
First, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and
Second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.
It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.
If satisfied that an obvious and serious risk was created by the manner of the defendant’s driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference.’


Lord Diplock, Lord Keith of Kinkel, Lord Roskill. Lord Wilberforce and Lord Edmund-Davies dissenting


[1982] AC 341, [1982] UKHL 1




Criminal Damage Act 1971 1(1) 1(2)


England and Wales


CitedRegina v Briggs (Note) CACD 1977
The defendant caused damage to a car. The appeal turned on the trial judge’s direction on the meaning of ‘reckless’.
Held: The conviction was set aside. The judge had not adequately explained that the test to be applied was that of the . .
CitedRegina v Stephenson CACD 1979
The defendant sought to sleep in a hollow in a haystack. He lit a fire, to keep warm, which set fire to the stack. He appealed against his conviction under the 1971 Act. He had a long history of schizophrenia and may not have had the same ability to . .
CitedRegina v Parker (Daryl) CACD 1977
In a temper the defendant broke a telephone by smashing the handset violently down on to the telephone unit.
Held: Applying but modifying Briggs, the defendant had been fully aware of all the circumstances and, if ‘he did not know, as he said . .

Cited by:

CitedRegina v G and R CACD 17-Jul-2002
The defendants were children accused of arson being reckless as to the danger of damage. They were not entitled to require the jury to consider as a separate question whether the risk of damage was obvious other than to an ordinary adult.
OverruledRegina v G and R HL 16-Oct-2003
The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the . .
AppliedRegina v Miller HL 17-Mar-1982
The defendant, a vagrant, fell asleep in an empty house. His lighted cigarette fell onto his mattress, and a fire started. Rather than put it out, he moved to another room. He was accused of arson.
Held: He was guilty. A defendant would be . .
AppliedElliott v C 1983
A 14-year old girl of low intelligence entered a shed, poured white spirit on the floor and set it alight. The fire destroyed the shed after she left. The allegation was that she was reckless. The justices applied Caldwell but inferred that in his . .
CitedRegina v Coles CACD 1995
The 15 year old defendant appealed his conviction on the basis of recklessness, challenging, unsuccessfully, the rule in Caldwell.
Held: Because recklessness was to be judged by the standard of the reasonable prudent man, expert evidence of . .
CitedRegina v Lawrence (Stephen) HL 1981
The defendant had ridden a motor-cycle and hit a pedestrian. The court asked whether he had been reckless.
Held: The House understood recklessness as ‘a state of mind stopping short of deliberate intention, and going beyond mere inadvertence’ . .
CitedData Protection Registrar v Amnesty International (British Section) Admn 8-Nov-1994
The defendants had been charged with recklessly holding and then disclosing information about named individuals. It had exchanged a list of potential addressee’s for use in mailing lists with another charity.
Held: Recklessness is defined by . .
CitedAttorney General’s Reference (No 3 of 2003) CACD 7-Apr-2004
Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The . .
CitedRegina v Spratt CACD 2-Jan-1990
The defendant fired his air gun from a window hitting a six year old girl. He admitted a section 47 assault on the basis that he had been unaware of her presence, and had given no thought to any risk.
Held: Failure to give any thought to a . .
CitedJaggard v Dickinson QBD 1980
The defendant broke two windows and damaged a curtain in the house of a stranger. She was drunk. She was charged under the 1971 Act, but she raised her honest but drunken and mistaken belief that the house belonged to a friend who would have . .
CitedBrown v The Queen (Jamaica) PC 13-Apr-2005
A police officer appealed against his conviction for manslaughter after being involved in a road traffic accident. Two were killed. The policemen complained as to the direction given on gross negligence manslaughter.
Held: Adomako could not . .
CitedBrown v The Queen (Jamaica) PC 13-Apr-2005
A police officer appealed against his conviction for manslaughter after being involved in a road traffic accident. Two were killed. The policemen complained as to the direction given on gross negligence manslaughter.
Held: Adomako could not . .
CitedHilda Amoo-Gottfried v Legal Aid Board (No 1 Regional Committee) CA 1-Dec-2000
The claimant appealed an order dismissing her claim for misfeasance in public office by the defendant, for the way in which they had mishandled her membership of duty solicitor rota schemes.
Held: The court discussed the requirements for . .
Lists of cited by and citing cases may be incomplete.


Updated: 27 November 2022; Ref: scu.183458