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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Commissioner of Police v Caldwell [1982] UKHL 1 (19 March 1982) URL: https://www.bailii.org/uk/cases/UKHL/1982/1.html Cite as: [1982] AC 341, [1982] UKHL 1 |
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Parliamentary
Archives,
HL/PO/JU/18/241
Die Jovis 19° Martii 1981
Upon
Report
from the Appellate Committee to whom
was referred
the Cause
Commissioner of Police for
the Metropolis against Caldwell,
That
the Committee
had heard Counsel as well on Wednesday the 10th
as
on Thursday the 11th days of December last upon
the Petition and
Appeal of the Commissioner of Police
for the Metropolis New
Scotland Yard, Broadway,
London, I.E. (on behalf of Her Majesty)
praying
that the matter of the Order set forth in the
Schedule
thereto, namely an Order of Her Majesty's Court of
Appeal
(Criminal Division) of the 31st day of March
1980 might be
reviewed
before Her Majesty the Queen
in Her Court of Parliament
and that the said Order
might be reversed,
varied
or altered or
that the
Petitioner might have such other relief
in the
premises
as to Her Majesty the Queen in Her Court of
Parliament
might seem meet; as also upon the Case of
JamesCaldwell
lodged in answer to the said Appeal; and
due
consideration had this day of what was offered
on either side in
this Cause:
It is
Ordered and Adjudged, by the Lords Spiritual
and
Temporal in the Court of Parliament of Her
Majesty the Queen
assembled, That the said Order of
Her Majesty's Court of Appeal
(Criminal Division) of
the 31st day of March 1980 complained of in
the said
Appeal be, and the same is hereby, Affirmed and
that
the said Petition and Appeal be, and the same is
hereby,
dismissed this House: And it is further Ordered,
That
the questions certified in the said Order of the Court
of
Appeal be answered as follows:
If the
charge of an offence under section 1(2) of
the Criminal Damage
Act 1971 is framed so as
to charge the defendant only with "
intending by
the destruction or damage" [of the
property]
" to endanger the life of another ". evidence
of
self-induced intoxication can be relevant
to his
defence.
If the
charge is, or includes, a reference
to his
" being reckless
as to whether the life of another
would thereby be endangered ",
evidence of self-
induced intoxication is not relevant
:
And it is
also further Ordered, That the Costs
incurred by the
Appellant in the courts below and in
this House be paid out of
Central Funds pursuant to
section 10 of the Costs in Criminal
Cases Act 1973,
the amount of such last-mentioned Costs to be
certified
by the Clerk of the Parliaments.
HOUSE OF LORDS
COMMISSIONER OF POLICE FOR THE METROPOLIS
(APPELLANT)
(on Appeal from the Court of Appeal (Criminal Division))
Lord
Wilberforce
Lord Diplock
Lord Edmund-Davies
Lord
Keith of Kinkel
Lord
Roskill
Lord Wilberforce
MY LORDS,
I would dismiss the appeal and
answer the certified questions as suggested
by my noble and
learned friend, Lord Edmund-Davies.
Lord Diplock
MY LORDS,
The facts that gave rise
to this
appeal are simple. The
respondent
had been
doing work for the
proprietor of a residential
hotel. He considered that he
had a
grievance against the proprietor. One night he got very
drunk and
in
the early hours of the morning he decided to revenge
himself on
the
proprietor by setting fire to the hotel, in which some ten
guests were
living at the time. He broke a window and succeeded in
starting a fire in
a ground floor room;
but fortunately it was
discovered and the flames were
extinguished before any serious
damage was caused. At his trial he said
that he was so drunk at
the time that the thought that there might be
people in the hotel
whose lives might be endangered if it were set on
fire had never
crossed his mind.
He was indicted at the Central
Criminal Court upon two counts of arson
under section 1,
subsections (1) and (2) respectively,
of the Criminal Damage
Act
1971. That section reads
as follows:
" 1.—(1) A person who
without lawful excuse destroys or damages
" any property
belonging to another intending to destroy or damage
" any
such property or being reckless
as to whether any such property
"
would be destroyed or damaged shall be guilty of an offence.
" (2) A person who without
lawful excuse destroys or damages any
" property, whether
belonging to himself or another ....
" (a) intending to
destroy or damage any property or being reckless
" as to
whether any property would be destroyed or damaged; and
" (b) intending by the
destruction or damage to endanger the life
" of another or
being reckless
as to whether the life of another
" would be
thereby endangered;
" shall be guilty of an offence.
" (3) An offence committed
under this section by destroying or
" damaging property by
fire shall be charged as arson."
Count 1 contained the charge of
the more serious offence under section
1(2) which requires
intent
to endanger the life of another or
recklessness
as
to whether the
life of another would be endangered. To this count therespondent
pleaded not guilty. He
relied
upon his self-induced drunkenness
as
a defence, on the ground that the offence under subsection (2) was
one
of " specific intent" in the sense in which that
expression was used in
speeches in this House in Reg.
v.
Majewski [1977] AC 443. Count 2
contained the lesser
offence under section 1(1) to which the respondent
pleaded guilty.
The learned recorder
directed the
jury that self-induced drunkenness was
not a defence to count 1,
and the jury convicted him on this count. The
2
recorder
sentenced him to three
years imprisonment on count 1 but passed
no sentence on count 2,
the lesser offence, to which he had pleaded guilty.
On appeal the
Court of Appeal held that her direction to the jury as to the
effect
of self-induced drunkenness on the charge in count 1 was wrong.
They
set aside the conviction on that count; but left the sentence of
three
years imprisonment unchanged as they considered it to be an
appropriate
sentence on count 2. So it was only a pyrrhic victory
for the
respondent;
but it left the law on criminal damage and
drunkenness in a state of some
confusion.
The question of law certified for the opinion of this House was:
"
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 ".
The question recognises
that under
section 1 (2)(b) there are two alternative
states of mind
as respects
endangering the life of another, and that the
existence
of either of them on the part of the accused is sufficient
to
constitute the mens rea
needed to convert the lesser
offence under section
1(1) into the graver offence under section
1(2). One is intention that a
particular thing should happen in
consequence of the actus reus,
viz.,
that
the life
of another person should be endangered, (this was not relied
on
by
the prosecution in the instant case). The other is recklessness
as to whether
that particular thing should happen or not. The same
dichotomy of mentesreae,
intention and
recklessness,
is to
be found throughout the section; in
subsection (1) and paragraph
(a) of subsection (2) as well as in paragraph
(b); and
" reckless
" as descriptive of a state of mind must be
given the
same meaning in each of them.
My Lords, the Criminal Damage Act
1971 replaced
almost in their
entirety the many and detailed
provisions of the Malicious Damage Act
1861. Its purpose, as
stated in its long title was to revise
the law of
England
and Wales as to offences of damage to property. As the brevity
of
the Act suggests, it must have been hoped that it would also
simplify
the law.
In the Act of 1861, the word
consistently used to describe the mem rea
that was a
necessary element in the multifarious offences that the Act
created
was " maliciously " —a technical
expression, not readily
intelligible to juries,
which became the
subject of considerable judicial exegesis. This culminated
in a
judgment of the Court of Criminal Appeal in Reg.
v.
Cunningham
[1957]
2 Q.B. 396 which approved, as an accurate statement of
the law, what had
been said by Professor Kenny in the first
edition of his Outlines of Criminal
Law published in 1902:
" In any statutory definition
of a crime, malice must be taken ... as
" requiring
either
(1) an actual intention to do the particular kind of
" harm
that in fact was done; or (2) recklessness
as to whether such
"
harm should occur or not (i.e., the accused has foreseen that
the
" particular kind of harm might be done and yet has gone
on to take
" the risk
of it)."
My Lords, in this passage
Professor Kenny was engaged in defining for
the benefit of
students the meaning of " malice " as a term of art in
criminal
law. To do so he used ordinary English words in their
popular meaning.
Among the words he used was " recklessness
", the noun derived from the
adjective " reckless
",
of which the popular or dictionary meaning is: careless,
regardless,
or heedless, of the possible harmful consequences of one's acts.
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 areal
risk
of its having the
relevant
harmful
consequences; but, granted this,
recklessness
covers a whole
range
of states of mind from failing to give
3
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. Conscious of this imprecision in the popular meaning
of
recklessness
as descriptive of a state of mind, Professor Kenny, in
the
passage quoted, was, as it seems to me, at pains to indicate
by the words
in brackets the particular species within the genus:
reckless
states of mind,
that constituted " malice " in
criminal law. This parenthetical restriction
on
the natural
meaning of recklessness
was necessary to an explanation of
the
meaning of the adverb " maliciously " when used as a
term of art in the
description of an offence under the Malicious
Damage Act 1861 (which was
the matter in point in Reg.
v.
Cunningham); but it was not directed to
and consequently
has no bearing on the meaning of the adjective " reckless
"
in
section 1 of the Criminal Damage Act 1971. To use it for that
purpose
can, in my view,
only be misleading.
My Lords, the restricted
meaning
that the Court of Appeal in
Reg.
v.
Cunningham had
placed upon the adverb "maliciously" in the
Malicious
Damage Act 1861 in cases where the prosecution did not
rely
upon an
actual intention of the accused to cause the damage
that was in fact done,
called for a meticulous analysis by the
jury of the thoughts that passed
through the mind of the accused
at or before the time he did the act
that caused the damage, in
order to see on which side of a narrow dividing
line they fell. If
it had crossed his mind that there was a risk
that someone's
property
might be damaged but, because his mind was affected by rage
or
excitement or confused by drink, he did not appreciate the
seriousness of
the risk
or trusted that good luck would prevent
its happening, this state of
mind would amount to malice in the
restricted
meaning placed upon that
term by the Court of Appeal;
whereas if, for any of these reasons,
he did
not even trouble to
give his mind to the question whether there was any risk
of
damaging the property, this state of mind would not suffice to
make
him guilty of an offence under the Malicious Damage Act 1861.
Neither state of mind seems to me
to be less blameworthy than the
other; but if the difference
between the two constituted the distinction between
what does and
what does not in legal theory amount to a guilty state of
mind for
the purposes of a statutory offence of damage to property, it
would
not be a practicable distinction for use in a trial by jury.
The only
person who knows what the accused's mental processes were
is the accused
himself—and probably not even he can recall
them accurately when the
rage
or excitement under which he acted
has passed, or he has sobered up if
he were under the influence of
drink at the relevant
time. If the accused
gives evidence that
because of his rage,
excitement or drunkenness the
risk
of
particular
harmful consequences of his acts simply did not occur to him, a
jury
would find it hard to be satisfied beyond reasonable
doubt that his
true
mental process was not that, but was the slightly different
mental processrequired
if one applies the
restricted
meaning of "
being
reckless
as to
" whether " something would happen,
adopted by the Court of Appeal inReg.
v.
Cunningham.
My Lords, 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.
When cases under section 1(1) of
the new Act, in which the prosecution's
case was based upon the
accused having been " reckless
as to whether . . .
"
property would be destroyed or damaged ", first came before the
Court
of Appeal, the question as to the meaning of the expression
" reckless
" in
the context of that subsection appears
to have been treated as soluble
simply by posing and answering
what had by then, unfortunately, become
an obsessive question
among English lawyers. Is the test of recklessness
"
subjective " or " objective "? The first two
reported
cases, in both of
which judgments were given off the cuff, are
first Reg.
v.
Briggs which is
reported
in a footnote
to the second,
Reg,
v.
Parker (Daryl) [1977] 1
W.LR.
600. Both classified the test of recklessness
as "
subjective ". This led the
4
court in Briggs to say: "
A man is reckless
in the sense
required
when he
" carries out
a deliberate act knowing that there is some risk
of damage
"
resulting
from that act but nevertheless continues in the performance
of
" that act." This leaves over the question whether
the risk
of damage may
not be so slight that even the most prudent
of men would feel justified in
taking it, but it excludes that
kind of recklessness
that consists of acting
without giving any
thought at all to whether or not there is any risk
of
harmful
consequences of one's act; even though the risk
is great and would
be
obvious if any thought were given to the matter by the doer of
the
act. Parker, however, opened the door a chink by adding
as an alternative
to the actual knowledge of the accused that
there is some risk
of damage
resulting
from his act and his going
on to take it, a mental state described as
" closing his mind
to the obvious fact " that there is such a risk.
Reg.
v.
Stephenson
[1979] 1 Q.B. 695, the first case in which there was
full
argument, though only on one side, and a reserved
judgment,
slammed the
door again upon any less restricted
interpretation of
"
reckless
" as to whether
particular consequences will
occur than that originally approved in Briggs.
The
appellant, a tramp, intending to pass the night in a hollow in the
side
of a haystack, had lit a fire to keep himself warm; as a
result
of this the
stack itself caught fire. At his trial, he was
not himself called as a witness
but a psychiatrist gave evidence
on his behalf that he was schizophrenic and
might not have had the
same ability to foresee or appreciate risk
as a
mentally normal
person. The judge had given to the jury the direction on
the
meaning of reckless
that had been approved in Parker. The
argument
for the appellant on the appeal was that this let in an "
objective " test
whereas the test should be entirely "
subjective". It was buttressed by
copious citation from
previous judgments in civil and criminal cases where
the
expressions " reckless
" or "
recklessness
" had
been used by judges in
various
contexts. Counsel for the Crown
expressed his agreement with the
submissions for the appellant.
The judgment of the court contains an
analysis of a number of the
cited cases, mainly in the field of civil law.
These cases do not
disclose a uniform judicial use of the terms; and asrespects
judicial statements made before the current
vogue
for classifying
all
tests of legal liability as either " objective " or "
subjective " they are
not easily assignable to one of those
categories rather
than the other. The
court, however, reached
its
final conclusion by a different
route.
It made
the assumption that
although Parliament in replacing
the Act of 1861 by the
Act of
1971 had discarded the word "maliciously" as descriptive of
the
mens rea
of the offences of which the actus
reus
is
damaging property, in
favour of the more explicit phrase "
intending to destroy or damage any
" such property or being
reckless
as to whether any such property would be
"
destroyed", it nevertheless intended the words to be interpreted
in
precisely the same sense as that in which the single adverb "
maliciously " had
been construed by Professor Kenny in the
passage that received
the
subsequent approval of the Court of
Appeal in Reg.
v.
Cunningham.
My Lords, I see no warrant for
making any such assumption in an
Act whose declared purpose is to
revise
the then existing law as to offences
of damage to property,
not to perpetuate it. " Reckless
" as used in the
new
statutory definition of the mens rea
of these offences
is an ordinary English
word. It had not by 1971 become a term of
legal art with some more
limited esoteric meaning than that which
it bore in ordinary speech—a
meaning which 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
suchrisk
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.
5
Nevertheless, to decide whether
someone has been "reckless"
as to
whether harmful
consequences of a particular kind will result
from his act,
as
distinguished from his actually intending such harmful consequences
to
follow, does call for some consideration of how the mind of the
ordinary
prudent individual would have reacted
to a similar
situation. If there were
nothing in the circumstances that ought
to have drawn the attention of
an ordinary prudent individual to
the possibility of that kind of harmful
consequence, the accused
would not be described as "reckless"
in the
natural
meaning of that word for failing to address his mind to
the
possibility; nor, if the risk
of the harmful consequences was
so slight that
the ordinary prudent individual upon due
consideration of the risk
would not be deterred from treating it
as negligible, could the accused be
described as " reckless
"
in its ordinary sense if, having considered the
risk,
he decided
to ignore it. (In this connection the gravity of the possible
harmful
consequences would be an important factor. To endanger life must
be
one of the most grave.) So to this extent, even if one ascribes to
"
reckless
" only the
restricted
meaning, adopted by the Court of
Appeal
in Stephenson and Briggs, of foreseeing that
a particular kind of harm
might happen and yet going on to take
the risk
of it, it involves a test that
would be described in part
as " objective" in current legal jargon.
Questions of
criminal liability are seldom solved by simply asking whether
the
test is subjective or objective.
In my opinion, a person charged
with an offence under section 1(1) of the
Criminal Damage Act 1971
is "reckless
as to whether or not any 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.
Where the charge is under section
1(2) the question of the state of mind
of the accused must be
approached in stages, corresponding to paragraphs
(a) and
(b). The jury must be satisfied that what the accused did
amounted
to an offence under section 1(1), either because he
actually intended to
destroy or damage the property or because he
was reckless
(in the sense that
I have described) as to whether it
might be destroyed or damaged. Only
if they are so satisfied must
the jury go on to consider whether the accused
also either
actually intended that the destruction or damage of the
property
should endanger someone's life or was reckless
(in a
similar sense) as to
whether a human life might be endangered.
Turning now to the instant case,
the first stage was eliminated by therespondent's
plea of guilty
to the charge under section 1(1). Furthermore
he himself gave
evidence that his actual intention was to damage the hotel
in
order to revenge
himself on the proprietor. As
respects
the charge
under
section 1(2) the prosecution did not rely
upon an actual
intent of the
respondent
to endanger the lives of the
residents
but
relied
upon his having
been reckless
whether the lives of any
of them would be endangered. His
act of setting fire to it was one
which the jury were entitled to think
created an obvious risk
that
the lives of the
residents
would be endangered;
and the only
defence with which your Lordships are concerned is that
the
respondent
had made himself so drunk as to
render
him oblivious
of
that risk.
If the only mental state capable of constituting the
necessary
mens rea
for an offence under section 1(2) were
that expressed in the words
" intending by the destruction or
damage to endanger the life of another ",
it would have been
necessary to consider whether the offence was to be
classified as
one of " specific " intent for the purposes of the rule
of
law
which this House affirmed and applied in Regina
v.
Majewski; and this it
plainly is. But this is not, in my
view,
a
relevant
inquiry where " being
" reckless
as to
whether the life of another would be thereby endangered "
is
an alternative mental state that is capable of constituting the
necessary
mens rea
of the offence with which he is charged.
6
The speech of the Lord Chancellor
in Majewski [1977] AC 443 at 475,
with which Lord Simon
of Glaisdale, Lord Kilbrandon and I agreed, is
authority that
self-induced intoxication is no defence to a crime in
whichrecklessness
is enough to constitute the necessary mens
rea.
The charge in
Majewski was of assault occasioning
actual bodily harm and it was held by
the majority of the House,
approving Reg
v.
Venna
[1976] 1 Q.B. 421 at 428,
that
recklessness
in the use of force was sufficient to satisfy the
mental
element in the offence of assault. Reducing
oneself by
drink or drugs to a
condition in which the restraints
of
reason
and conscience are cast off was
held to be a reckless
course of
conduct and an integral part of the crime.
The Lord Chancellor
accepted as correctly stating English law the provision
in section
208 of the American Model Penal Code:
" When recklessness
establishes an element of the offence, if the
" actor, due to
self-induced intoxication, is unaware of a risk
of which
" he
would have been aware had he been sober, such unawareness is
"
immaterial ".
So, in the instant case, the fact
that the respondent
was unaware of the
risk
of endangering the
lives of
residents
in the hotel owing to his
self-induced
intoxication, would be no defence if that risk
would
have been obvious
to him had he been sober.
My Lords, the Court of Appeal in
the instant case regarded
the case as
turning upon whether the
offence under section 1 (2) was one of " specific "
intent
or " basic" intent. Following a recent
decision of the
Court of
Appeal by which they were bound, Reg.
v.
Orpin
(1980) 70 Cr. App.
R.
306,
they held that the offence under
section I (2) was one of " specific " intent
in contrast
to the offence under section 1(1) which was of basic intent.
This
would be right
if the only mens
rea
capable of
constituting the offence were
an actual intention to endanger the
life of another. For the reasons
I have
given, however,
classification into offences of " specific " and "
basic " intent
is irrelevant where being reckless
as to
whether a particular harmful
consequence will result
from one's
act is a sufficient alternative mens
rea.
My Lords, the learned recorder's
summing-up was not a model of clarity.
Contrary to the view
of the
Court of Appeal she was
right
in telling the
jury that in deciding
whether the respondent
was
reckless
as to whether the
lives of
residents
in the hotel would be endangered, the fact that, because
of
his drunkenness, he failed to give any thought to that risk
was
irrelevant; but there were other criticisms of the summing-up
made by the Court of Appeal which your
Lordships very
properly
have not been invited to consider, since it makes
no practical
difference to the respondent
whether the appeal is allowed or
not.
Since it is not worth while spending time on going into these
criticisms,
I would dismiss the appeal.
I would give the following answers to the certified questions:
If the charge of an offence under
section 1(2) of the Criminal
Damage Act 1971 is framed so as to
charge the defendant only with
" intending by the
destruction or damage " [of the property] " to
"
endanger the life of another ", evidence of self-induced
intoxication
can be relevant
to his defence.
If the charge is, or includes, a
reference
to his " being
reckless
as
" to whether the
life of another would thereby be endangered ",
evidence of
self-induced intoxication is not relevant.
Lord
Edmund-Davies
MY LORDS,
I respectfully
concur in holding
that this appeal must be dismissed. I
nevertheless consider that
one of the certified questions should be answered
in a manner
contrary to that favoured by a majority of your Lordships. And
I
believe that the reason
for my arriving at a different conclusion is
of some
importance and that it should be explored.
7
We are concerned with a charge of
arson in contravention of section 1(2)
of the Criminal Damage Act
1971, which needs to be seen in its statutory
setting. Section 1
is in the following terms:-
" (1) A person who without
lawful excuse destroys or damages any
" property belonging to
another intending to destroy or damage any
" such property or
being reckless
as to whether any such property would
" be
destroyed or damaged shall be guilty of an offence.
"
(2) A person who without lawful excuse destroys or damages any
"
property, whether belonging to himself or another—
"
(a) intending to destroy or damage any property or being
reckless
" as to whether any property would be destroyed
or damaged;
"and
"
(b) intending by the destruction or damage to endanger the
life of
" another or being reckless
as to whether the life
of another would
" be thereby endangered;
" shall be guilty of an offence
" (3) An offence committed
under this section by destroying or
" damaging property by
fire shall be charged as arson."
In considering the section, there
are two matters of particular importance:
(1) What constitutes "
recklessness
" in the criminal law? (2) What is the
mens
rea
of the offence commonly (and understandably)
known as
" aggravated arson " in section 1(2)(b)?
I turn to these questions forthwith:
(1)
Recklessness
The words " intention "
and " recklessness
" have increasingly displaced
in
statutory crimes the word " maliciously, " which has
frequently given rise
to difficulty in interpretation. In
Cunningham [1957] 2 Q.B. 396, Byrne J.
in the Court of
Criminal Appeal cited with approval the following passage
which
has appeared in Kenny's Outline of Criminal Law from its
first
edition in 1902 onwards:
" In any statutory definition
of a crime, malice must be taken not
" in the old, vague
sense of wickedness in general, but as
requiring
" either (1)
an actual intention to do the particular kind of harm that
"
in fact was done; or (2) recklessness
as to whether such harm
should
" occur or not (i.e. the accused has foreseen
that the particular kind
" of harm might be done and yet has
gone on to take the risk
of it). It
" is neither limited to
nor does it indeed require
any ill will towards the
" person
injured ".
Byrne J.'s comment was laconic and
unqualified: "We think that this is
" an accurate
statement of the law ... in our opinion the word
" '
maliciously' in a statutory crime postulates foresight of consequence
".
My Lords, my noble and learned
friend, Lord Diplock, somewhat
dismissively describes Professor
Kenny as having been " engaged in defining
" for the
benefit of students the meaning of ' malice' as a term of art in
"
criminal law ", adding:
" To do so he used ordinary
English words in their popular meaning.
" Among the
words he used was ' recklessness',
the noun derived from
"
the adjective ' reckless',
of which the popular or dictionary
meaning
" is: careless, regardless,
or heedless, of the
possible harmful
" consequences of one's acts. 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 . . . The parenthetical
restriction
on the
"
natural meaning of recklessness
was necessary to an explanation of
the
" meaning of the adverb ' maliciously' when used as a
term of art in
" the description of an offence under the
Malicious Damage Act 1861
" (which was the matter in point in
Reg.
v.
Cunningham); but it was
" not directed
to and consequently has no bearing on the meaning of
" the
adjective ' reckless'
in section 1 of the Criminal Damage Act
"
1971." (Emphasis added).
8
I have to
say that I am in respectful,
but profound, disagreement. The law
in
action compiles its own dictionary. In time, what was originally
the
common coinage of speech acquires a different value
in the
pocket of the
lawyer than when in the layman's purse. Professor
Kenny used lawyers'
words in a lawyer's sense to express his
distillation of an important part of
the established law relating
to mens
rea,
and he did so in a manner
accurate not only in
respect
of the law as it stood in 1902 but also as it
has been
applied in countless cases ever since, both in the United Kingdom
and
in other countries where the common law prevails; see, for example
in
Western Australia, Lederer v.
Hutchins, [1961]
W.A.
R.99,
and, in the
United States of America, Jethro Brown's "
General Principles of Criminal
"Law", 2nd Edition, 1960,
115. And it is well known that the Criminal
Damage Act 1971 was in
the main the work of the Law Commission, who,
in their Working
Paper No. 31 (issued in 1970), defined recklessness
by
saying:
"
A person is reckless
if, (a) knowing that there is a
risk
that an
"
event may result
from his conduct or that a circumstances may
"
exist, he takes that risk,
and (b) it is unreasonable for him to
take
" it, having regard
to the degree and nature of the
risk
which he knows
" to be present."
It was
surely with this contemporaneous definition and the much
respected
decision of Cunningham (1957) in mind that the
draftsman proceeded to
his task of drafting the Criminal Damage
Act 1971.
It has
therefore to be said that, unlike negligence, which has to be
judged
objectively, recklessness
involves foresight of
consequences, combined with
an objective judgment of the
reasonableness
of the
risk
taken. And
recklessness
in
vacuo
is
an incomprehensible notion. It must
relate
to
foresight of
risk
of the particular kind
relevant
to the charge preferred,
which,
for the purpose of section 1(2), is the risk
of endangering
life and nothing
other than that.
So if a
defendant says of a particular risk,
" It never crossed my mind
", a
jury could not on those words alone properly convict him
of recklessness
simply because they considered that the
risk
ought
to have crossed his
mind, though his words might well lead to
a finding of negligence. But a
defendant's admission that he "
closed his mind " to a particular risk
could
prove fatal, for
" A person cannot, in any intelligible meaning of the words,
"
close his mind to a risk
unless he first
realises
that there is a
risk;
and if
" he realises
that there is a
risk,
that is the
end of the matter." (Glanville
Williams, Textbook of Criminal
Law, p.79).
In the
absence of exculpatory factors, the defendant's state of mind
is
therefore all-important where recklessness
is an element in the
offence
charged, and section 8 of the Criminal Justice Act 1967
has laid down that:
" A
court or jury, in determining whether a person has committed an
"
offence,—
" (a)
shall not be bound in law to infer that he intended or foresaw
"
a result
of his actions by
reason
only of its being a natural and
"
probable consequence of those actions; but
" (b)
shall decide whether he did intend or foresee that result
by
" reference
to all the evidence, drawing such inferences
from the
" evidence as appear proper in the circumstances ".
My Lords,
it is unnecessary to examine at length the proposition
that
ascertainment of the state of mind known as "
recklessness
" is a subjective
exercise, for the task
was expansively performed by Geoffrey Lane L.J. (as
he then was)
in Stephenson [1977] 1 Q.B. 495. And, indeed, that was
theview
expressed by the learned
recorder
herself in the instant
case when,
citing Briggs [1977] 1 All E.R.
475, at 477, she
directed the jury at one
stage in these terms:
"...
It may be the most useful function that I can perform if I
"
read
to you the most
recent
(I hope) definition of '
recklessness'
.
. .
" by a superior court . . .
9
" 'A man is reckless
when he
carries out a deliberate act, knowing
" 'that there is some
risk
of damage
resulting
from that act, but
" 'nevertheless
continues in the performance of that act' ... That
" came, in
fact, in a case of straight arson and damage to property,
"
but in this case you would probably feel that you had to add after
"
the words to fit this section of the Act,' some risk
of damage to
life',
" ... because that is what we are concerned with. I
see both counsel
" nod assent to that. So, we can stay on
common ground . . . ."
(2)
The ' mens rea
' of aggravated arson
The first count charged the
respondent
with " Arson contrary to Section
" 1(2) and
(3) of the Criminal Damage Act 1971 ", and the particulars
of
the offence were in the following terms:
"James Caldwell
on the 23rd
day of December 1978 without lawful
" excuse you damaged by
fire a window frame and curtains at the Hydro
" Hotel . . .
belonging to another intending to damage the said property
"
or being reckless
as to whether any such property would be damaged
"
and intending by the said damage to endanger the life of
another or
" being reckless
as to whether the life of another
would be thereby
" endangered."
My Lords, the very
layout of
section 1 makes clear that a state of mind
over and beyond that
essential for a conviction under section 1(1) has to be
established
before the graver crime created by section 1(2) can be brought
home.
The latter has features both of an offence against property and
an
offence against the person, and a special " intent"
or a special " recklessness
"
is involved, a state of
mind " ulterior " to the " basic " intent or
recklessness
which is sufficient for section 1(1). And "intention"
and "
recklessness"
are more than birds of a feather;
they are blood-brothers; so much
so that Austin included "
recklessness"
within the term "intention".
(Jurisprudence",
4th Edition, Volume
1, pp.436, 441, 442). As James L.J.
said in
Reg.
v.
Venna
[19761 Q.B. 421, at 429C, " In many
cases the dividing
" line between intention and recklessness
is barely distinguishable ". So in
O'Driscoll (1977)
65 Cr. App. R.
50, where the charge was one of
manslaughter caused
by setting fire to a house, Waller L.J., giving the
judgment of
the Court of Appeal (Criminal Division) said (at p.55):
". . . We are of the opinion
in this case that the unlawful act relied
" on by the learned
judge of damaging the building of another by fire
" involved
a basic intent .... It would have been different in our
"
view
if the intent had involved the question of danger to the life
of
" others, as in subsection (2) of section 1 of the
Criminal Damage Act
" 1971, because that would not be
inherent in the actus reus
if there
" was an intention
to endanger the life of another of recklessness
as
" to
whether the life of another would be endangered or not. As I
"
have already stated, in our view
this was a crime of basic intent . .
.
" and therefore the defence of drunkenness does not avail
at all: see
" D.P.P. v.
Majewski [1977] AC 443 ".
And
in Stephenson (ante), to which I have already referred,
where
the charge
was laid under section 1(1), Geoffrey Lane L.J. said
(at page 704 B):
" There is no doubt that the
subjective definition of ' recklessness'
" does produce
difficulties. One of them, which is particularly likely to
"
occur in practice, is the case of the person who by self-induced
"
intoxication by drink or drugs deprives himself of the ability to
"
foresee the risks
involved in his actions. Assuming that by
reason
"
of his intoxication he is not proved to have foreseen the
relevant
"
risk,
can he be said to have been '
reckless'?
Plainly not, unless
"
cases of self-induced intoxication are an exception to the general
"
rule.
In our judgment the decision of the House of Lords in
Reg.
v.
" Majewski [1977] AC 443 makes it clear that
they are such an
" exception. Evidence of self-induced
intoxication such as to negative
" mens rea
is a defence to a
charge which
requires
proof of a ' specific
" ' intent', but not to a
charge of any other crime. The Criminal
"Damage Act 1971,
section 1(1) involves no specific intent: see Reg.
10
" v.
O'Driscoll . . .
Accordingly, it is no defence under the Act of
" 1977 for
a person to say that he was deprived by self-induced
"
intoxication of the ability to foresee or appreciate an obvious risk
".
That Geoffrey Lane L.J. was
referring
in his final sentence only to section
1(1) of the Act is
made clear by its context, and in Orpin (1980) 70 Cr.
App.
R.
306, at 312 Eveleigh L.J. said:
" The mental element
(intention or recklessness)
in the second part of
" section 1
(2) is an aggravating circumstance which adds to the gravity
"
of the actus reus
which is defined in the first part of that
subsection.
" Although the proof of that additional element
will often involve
" evidence as to possible or actual danger
to life, the additional
" aggravating factor lies in the
mind. It is the mental attitude to the
" consequences of
an actus reus.
It goes beyond the actus
reus
itself,
"
and is therefore to be treated as a specific intent which has to be
"
established as an ingredient of the offence. That being so,
evidence
" of intoxication is relevant
as one of those
matters to be taken into
" consideration whether or not the
necessary mental element existed.
" There is nothing
inconsistent in treating an offence under Section
" 1(1) as a
crime of basic intent and an offence under Section 1(2) as
"
one of specific intent. It is only the second part of Section 1 (2)
which
" introduces a specific intent. The same words are used
to denote the
" attitude of mind, but in the one case there
is an act stipulated
" corresponding to the mental state and
manifesting its existence, whilst
" in the other there is no
such act ".
But the trial judge here
unfortunately failed to differentiate between the
different types
of arson embraced by section 1 of the 1921 Act by directing
the
jury without qualification that " Arson is an offence of basic
intent".
This led her, in purported pursuance of Majewski,
to conclude that—
" It is no defence for the
accused, by reason
of self-induced
" intoxication, to say
that he was senseless and so had neither ' intent'
" nor '
recklessness'
with
regard
to what he was doing . . . One basic,
"
simple act of setting fire to the curtains, with a view
to igniting
the
" building, is what is relied
upon for the commission of
the offence . . .
" If a person . . . sets out with intent to
set fire to something, that
" is a positive, basic act, and
he has with him the equipment to do it,
" he cannot then be
allowed to say, ' Well, yes, I meant to set fire to
" ' that,
but that's all' ".
In my judgment, the Court of
Appeal (Criminal Division) were right
in
holding that this
direction contained two errors. In the first place, despite
her
earlier, correct directions as to the subjective nature of the "
recklessness
"
test, the learned recorder
invited the jury to
hold
recklessness
established if
they considered that it
was "... a fair likelihood that, ... if the wind
" was
in the right
direction, perhaps, to fan the flames
rather
than
peter
" them out, it might have got a good hold of the
furniture in the room
. . ."
That was undoubtedly a direction
that the " recklessness
" of the accused's
action was to
be judged objectively. And the second error lay in directing
the
jury without qualification that (a) all arson is an offence of basic
intent
and, consequently, that (b) since Majewski [1977] AC 443 it matters not
if, by reason
of the defendant's
self-intoxication, he may not have foreseen
the possibility that
his admittedly unlawful actions endangered life.
Something more must be said about
(b), having regard
to the
view
expressed by my noble and learned
friend, Lord Diplock, that the speech of
the Lord Chancellor in
Majewski " is authority that self-induced intoxication
"
is no defence to a crime in which recklessness
is enough to
constitute the
" necessary mens rea
". It is a
view
which, with
respect,
I do not share. In
common with all noble
and learned Lords hearing that appeal,
Lord Elwyn-Jones L.C.
adopted the well-established (though not universally
favoured)
distinction between basic and specific intents. Majewski
related
solely to charges of assault, undoubtedly an offence
of basic intent, and the
Lord Chancellor made it clear that his
observations were confined to offences
of that nature; see pp.473
B.C. and G.H., 474H-475E, and 476 A.D. My
11
respectful
view
is that Majewski
accordingly supplies no support for the
proposition that, in
relation
to crimes of specific intent (such as section
1(2)(b)
of the 1971 Act) incapacity to appreciate the degree and nature
of therisk
created by his action which is attributable to the
defendant's
self-intoxication is an irrelevance. The Lord
Chancellor was dealing simply
with crimes of basic intent, and in
my judgment it was strictly within that
framework that he adopted
the view
expressed in the American Penal Code
quoted at p.475D,
and recklessness
as an element in crimes of specific intent
was, I
am convinced, never within his contemplation.
For the foregoing reasons,
the
Court of Appeal were in my judgment
right
in quashing the
conviction under section 1(2)(b) and substituting a finding
of
guilty of arson contrary to section 1(1) and (3) of the 1971 Act.
It
follows, therefore, that I agree with learned counsel for the
respondent
that
the certified point of law should be answered in
the following manner:
Yes, evidence of self-induced
intoxication can be relevant
both to (a)
whether the defendant
intended to endanger the life of another, and to
(b)
whether the defendant was reckless
as to whether the life of
another
would be endangered, within the meaning of Section l(2)(b)
of the
Criminal Damage Act 1971.
My Lords, it was recently
predicted that, " There can hardly be any doubt
" that
all crimes of recklessness
except murder will now be held to
be crimes
" of basic intent within Majewski"
(Glanville Williams, " Textbook of
" Criminal Law",
1978, page 431). That prophecy has been promptly
fulfilled by the
majority of your Lordships, for, with the progressive
displacement
of " maliciously " by " intentionally or recklessly
"
in statutory
crimes, that will surely be the effect of the
majority decision in this appeal.
That I regret,
for the
consequence is that, however grave the crime charged,
if
recklessness
can constitute its mens
rea
the fact that it was
committed in
drink can afford no defence. It is a very
long time
since we had so harsh
a law in this country. Having revealed
in
Majewski (page 495B-497C) my
personal conviction that, on
grounds of public policy, a plea of drunkenness
cannot exculpate
crimes of basic intent and so exercise unlimited sway in
the
criminal law, I am nevertheless unable to concur that your
Lordships'
decision should now become the law of the land. For, as
Eveleigh L.J. said
in Orpin (ante, at page 312):
"... there is nothing
inconsistent in treating intoxication as
" irrelevant when
considering the liability of a person who has
" willed
himself to do that which the law forbids (for example, to do
"
something which wounds another), and yet to make it relevant
when a
"
further mental state is postulated as an aggravating circumstance
"
making the offence even more serious ".
By way of a postscript I would add
that the majority view
demonstrates yet
again the folly of totally
ignoring the recommendations
of the Butler
Committee (Report
on
Mentally Abnormal Offenders. Cmnd 6244, 1975,
paragraphs 18,
53-58).
My Lords, I would dismiss the appeal.
Lord Keith of Kinkel
MY LORDS,
I am in entire agreement with the
reasoning
contained in the speech of my
noble and learned friend,
Lord Diplock, which I have had the benefit ofreading
in draft. I
would answer the certified questions in the manner which
he
proposes, and dismiss the appeal.
12
Lord
Roskill
MY LORDS,
I had prepared an opinion of my
own in this appeal but having had the
advantage of reading
in
draft the speech of my noble and learned friend,
Lord Diplock, I
am satisfied that no useful purpose would be served by
delivering
that speech. I agree in every respect
with what my noble and
learned
friend has said in his speech and with his proposed answers to
the
questions certified. For the reasons he gives I agree that
this appeal should
be dismissed.
313192 Dd 8013619 250 3/81