A2 OCR Law - Intention

References: by the dissenting Lords were made to R v Stephenson [1979] but the majority were in favour of going in accordance with Lord Diplock’s test, that the risk would have been foreseen by an “ordinary, prudent individual” and the defendant was convicted upon section 1(2) of the 1971 Criminal Damage Act based on intention and not on recklessness, as the risk would have been obvious to the defendant if he was sober. The Lords departed from their previous decision introducing an objective test for recklessness; therefore R v Cunningham [1957] was overruled. "In my opinion, 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. That would be a proper direction to the jury; cases in the Court of Appeal which held otherwise should be regarded as overruled." R v Cunningham [1957] was a criminal case which had previously established the statutory interpretation of the “maliciously.” The defendant had ripped a gas meter from a wall to steal the money inside, and consequently, gas escaped from the pipe and partially asphyxiated a neighbour. The defendant was charged and convicted with the indictment of an unlawful and malicious administration of a noxious substance to another person under section 23 of the Offences against the Person act 1861.  Subsequently, the defendant appealed and the Court of Appeal quashed his conviction on the basis that the malicious nature or depravity of the defendant stealing the gas meter from the wall was not enough to fill the mens rea requirement to convict him of such a crime and that the jury had been misdirected. The judges ruled that "’maliciously’ in a statutory crime postulates foresight of consequence." and introduced a subjective test for recklessness. Cases which demonstrate the use of R v Cunningham and the application of a subjective test for recklessness, include that of R v Stephenson [1979]. The defendant, who was homeless at the time, laid down to sleep in a hollow he had made in the side of a haystack and, feeling cold, lit a fire in the hollow which eventually spread and damaged property equal to the sum of £3500. He was charged and convicted under section 1(1) and (3) of the 1971 Criminal Damage Act. However, the defendant had a long history of schizophrenia and evidence of this was provided to the court by a consultant psychiatrist who had examined him. The evidence provided to the court suggested that the defendant was not the “ordinary, prudent person” as expressed later in Caldwell (Lord Diplock) and that his ability to foresee and appreciate any possible risk arising from the consequence of his actions was impaired by the bearing of his mental illness. “Proof of the requisite knowledge in the mind of the defendant will in most cases present little difficulty. The fact that the risk of some damage would have been obvious to anyone in his right mind in the position of the defendant is not conclusive proof of the defendant 's knowledge, but it may well be and in many cases doubtless will be a matter which will drive the jury to the conclusion that the defendant himself must have appreciated the risk." The judges however, acknowledged that the flexibility of a subjective test proposed great difficulties for interpreting common law in a pattern that provided fairness, consistency, and clarity to all involved in the case and for these reasons among others it is understood why an objective measure was introduced in the subsequent case of R v Caldwell [1982]. Despite this, when the appellants in the case of R v G and another [2003] appealed to the Lords to reconsider their conviction, the Lords departed from their previous decision in R v Caldwell [1982] recklessness using the Practice Statement [1966], understanding that the conviction of these two young boys due to the precedent was leading to inadmissible results and that an objective test was possibly too rigid; not allowing any room for factors that could differentiate a defendant’s mind to that of an “ordinary, reasonable bystander” into account, such as age or mental illness. The boys’ convictions were reversed and the Lords departed from their previous decision on the basis that two of the previous decisions the House had made conflicted. The House decided to follow the previous precedent of R v Cunningham [1957] instead of R v Caldwell [1982], which introduced a subjective test for recklessness and was to become binding on the courts. "Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?". R v G and another [2003] had a significant impact on the law of recklessness, as it held that a defendant must have subjectively appreciated a risk to be found criminally liable, and that he must have in the circumstances known to him appreciated that it was unreasonable to take such a risk. The reintroduction of a subjective test for recklessness allows defendants to be judged on their age, character, and understanding, and take all these necessary factors into account to ensure the fairest judgement will arise from future cases.