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 defendant had given no thought to a risk of damage, but because of his characteristics he might not have seen the danger if he had thought about it.
Held: The high threshold for the House to depart from its earlier judgments was satisfied in this case. Caldwell (which would in this case have disallowed any adjustment for the age or understanding of the defendaants) should be overruled. It has led to cases such as this, cases of clear injustice. Parliament had meant to get rid of the older connotations of malicious intent. It would be wrong to create specific exemptions for certain forms of disability such as youth, since this would lead only to further arbitrary complication. The culpability of the defendants should be decided according to their actual perception of the risk allowing for their personal characteristics.
Lord Bingham of Cornhill said: ‘in any statutory definition of a crime, ‘malice’ must, as we have already seen, be taken – not in its vague common law sense as ‘wickedness’ in general, but – as requiring an actual intention to do the particular kind of harm that in fact was done . . For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so.’
Lord Steyn acknowledged the special position of children in the criminal justice system: ‘Ignoring the special position of children in the criminal justice system is not acceptable in the modern civil society. In 1990 the United Kingdom ratified the Convention on the Rights of the Child (Cm 1976) which entered into force in January 1992. Article 40(1) provides ‘States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others, and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society’. This provision imposes both procedural and substantive obligations on the State parties to protect the special position of children in the criminal justice system . . it is true that the Convention became binding on the United Kingdom after R v Caldwell was decided. But the House cannot ignore the norm created by the Convention. This factor on its own justified a reappraisal of R v Caldwell.’
Judges:
Lord Bingham of Cornhill, Lord Browne-Wilkinson, Lord Steyn, Lord Hutton, Lord Rodger of Earlsferry
Citations:
[2003] UKHL 50, Times 17-Oct-2003, Gazette 13-Nov-2003, [2003] 3 WLR 1060, [2004] 1 AC 1034, (2003) 167 JP 621, (2003) 167 JPN 955, [2004] 1 Cr App R 21, [2003] 4 All ER 765
Links:
House of Lords, Bailii, Bailii
Statutes:
Criminal Damage Act 1971 1, Malicious Damage Act 1861 51
Jurisdiction:
England and Wales
Citing:
Overruled – 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 . .
Cited – Regina v Pembliton CCCR 1874
The defendant was fighting in the street. He picked up a large stone and threw it at the people he had been fighting with. He missed and broke a window causing damage of a value exceeding pounds 5. The jury convicted the defendant, although finding . .
Cited – Regina v Child 1871
The defendant had not intended to set fire to a house and had thought that what he was doing would not do so. He was not guilty. . .
Approved – Regina v Cunningham CCA 1957
Specific Intention as to Damage Caused
(Court of Criminal Appeal) The defendant wrenched a gas meter from the wall to steal it. Gas escaped. He was charged with unlawfully and maliciously causing a noxious thing, namely coal gas, to be taken by the victim.
Held: Byrne J said: ‘We . .
Cited – Regina v Welch 1875
The defendant faced charges of unlawfully and maliciously killing, maiming and wounding a mare under the Act.
Held: The trial judge was right to direct the jury to convict if they found that the defendant in fact intended to kill, maim or . .
Cited – Regina v Faulkner 1877
(Irish Court of Crown Cases Reserved) The defendant had set fire to a ship while stealing rum from its hold. He had been boring a hole by candlelight and some rum had spilled out and been ignited. It was conceded that he had not intended to burn the . .
Cited – Regina v Harris 1882
The defendant was charged with setting fire to a dwelling house. The judge directed: ‘Again, if you think that the prisoner set fire to the frame of the picture with a knowledge that in all probability the house itself would thereby be set on fire, . .
Cited – Regina v Mowatt CACD 20-Jun-1967
The defendant was attacked by his victim, and he hit his victim in the face. He was charged with wounding with intent to do grievous bodily harm with an alternative of unlawful wounding also open to the jury. The judge gave no direction on the . .
Cited – Regina 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 . .
Cited – Regina 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 – Regina 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 . .
Approved – Regina 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’ . .
Cited – Regina 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 . .
Cited – Elliott 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 . .
Cited – Regina v Reid HL 1992
The defendant, convicted of causing death by reckless driving contrary asked the House to reconsider its decision in Lawrence on which the trial judge’s jury direction had been based.
Held: Lawrence remained good. (Lord Keith) ‘where the . .
Applied – Regina 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 . .
Cited – Director of Public Prosecutions v Majewski HL 1976
The defendant took a cocktail of drink and drugs and, whilst intoxicated, assaulted pub landlord. He said that he did not know what he was doing, and had no mens rea, that self-induced intoxication could be a defence to a charge of assault, and that . .
Cited – Regina v Morgan HL 30-Apr-1975
The defendants appealed against their convictions for rape, denying mens rea and asserting a belief (even if mistaken) that the victim had consented.
Held: For a defence of mistake to succeed, the mistake must have been honestly made and need . .
Cited – Beckford v The Queen PC 15-Jun-1987
(Jamaica) Self defence permits a defendant to use such force as is reasonable in the circumstances as he honestly believed them to be. ‘If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the . .
Cited – B (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
Cited – Regina v K CACD 11-Dec-2002
While a girl under the age of 16 cannot in law consent to an indecent assault, it is a defence if the defendant honestly believed she was over 16. . .
Cited – Regina v Graham (Paul) CACD 18-Dec-1981
The defence of duress requires establishment of a reasonable belief. In judging the accused’s response the test is: ‘have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, . .
Cited – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – Regina v Martin (Colin) CACD 29-Nov-1988
Defence of Necessity has a Place in Criminal Law
The defendant appealed against his conviction for driving whilst disqualified. He said he had felt obliged to drive his stepson to work because his stepson had overslept. His wife (who had suicidal tendencies) had been threatening suicide unless he . .
Cited – Regina v Bowen CACD 24-Apr-1996
The low IQ of the defendant was not relevant to jury’s consideration of the effect of duress as a defence. The age and sex of the defendant (but possibly no other characteristics) are relevant to the cogency of the threat. . .
Cited – Regina v Smith (Morgan James) HL 27-Jul-2000
The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
Cited by:
Cited – Attorney 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 . .
Cited – Regina v Misra; Regina v Srivastava CACD 8-Oct-2004
Each doctor appealed convictions for manslaughter by gross negligence, saying that the offence was insufficiently clearly established to comply with human rights law, in that the jury had to decide in addition and as a separate ingredient whether . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Brown 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 . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Cited – Foster and Another v The Queen PC 23-Jan-2007
(Barbados) The appellants had been convicted under the felony murder rule, before its abolition in Barbados in 1994. . .
Cited – HC (A Child), Regina (on The Application of) v Secretary of State for The Home Department and Another Admn 25-Apr-2013
The claimant sought to challenge the policy that a 17 year old under arrest was to be treated as an adult for interview purposes, even though at every other stage of a criminal investigation and prosecution, he would be treated as a child. He had . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Cited – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council SC 8-Jul-2015
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was . .
Cited – Al Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
Cited – Ball v Johnson 29-May-2019
Summons granted for political lies allegation
(Westminster Magistrates Court) The court gave its reasons for acceding to a request for the issue of a summons requiring the defendant to answer a charge for three offences alleging misconduct in a public office.
Held: There was prima facie . .
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .
Cited – Keal, Regina v CACD 18-Mar-2022
Insanity Plea not for D believing he had no choice
The court was asked whether the defence of insanity would be available to a psychotic and deluded defendant who was aware that his act was wrong, but believed himself compelled to perform it. The defendant, with a history of mental problems, had . .
Lists of cited by and citing cases may be incomplete.
Crime, European, Company, Constitutional, Children
Updated: 14 April 2022; Ref: scu.186774