R v G and R [2003] UKHL 50

Key point
  • The objective test for recklessness (known as Caldwell recklessness) was rejected in favour of a subjective test
  • Two boys (Ds) set fire to newspapers in the back of a shophouse, and burnt down supermarket and adjoining buildings
  • They were charged under s1 Criminal Damage act 1971 for reckless arson
Held (House of Lords)
  • Ds were not guilty of arson as they had not been reckless; they had been unable to appreciate the risk due to their immaturity
Lord Bingham

Overruling R v Caldwell

  • ‘The present case shows, more clearly than any other reported case since R v Caldwell, that the model direction formulated by Lord Diplock (see paragraph 18 above) 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.’: [33]
  • R v Caldwell was a misinterpretation of s1 Criminal Damage Act 1971 that offended principle: [36]

Applied a subjective test for recklessness

  • “A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to—(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.”: [41]
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