Subjective recklessness in criminal damage (R v G)
Priya Shah, aged 19, and a friend shelter behind a warehouse in Coventry late at night. To keep warm they set light to some cardboard inside a metal skip that stands against the warehouse wall. They genuinely believe the fire will burn out safely inside the skip, and then leave. The fire spreads to the plastic cladding of the warehouse, causing £60,000 of damage. Priya is charged with arson, the prosecution alleging that she was reckless as to whether the warehouse would be damaged. The jury accept that the risk would have been obvious to an ordinary prudent adult, but also accept that the risk never crossed Priya's mind.
Which of the following best describes whether Priya was reckless as to the damage to the warehouse?
Choose one answer to see the reasoning.
Worked answer
Correct answer A: She was not reckless, because she is reckless only if she is aware of a risk that the damage will occur and, in the circumstances known to her, it is unreasonable to take it.
THE RULE TO REMEMBER
Recklessness in criminal damage is subjective: the defendant must be aware of a risk that the result will occur, and it must be unreasonable, in the circumstances known to her, to take it.
Subjective recklessness in criminal damage (R v G)
In R v G [2003] UKHL 50 the House of Lords overruled the objective test of recklessness from R v Caldwell and held that recklessness under s.1 of the Criminal Damage Act 1971 is subjective. Lord Bingham adopted the Law Commission's formulation: a person acts recklessly with respect to 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. The question is what the defendant herself foresaw, not what an ordinary prudent person would have foreseen. The jury accept that Priya genuinely did not appreciate any risk of the fire spreading to the warehouse. She therefore lacked the mental element of recklessness as to damage to the building, and she must be acquitted of arson of the warehouse unless intention is proved, which is not alleged.
Why B is wrong: This is the objective Caldwell test, which R v G overruled.
Why C is wrong: The mens rea must relate to the damage to the property, not merely to the act of lighting a fire.
Why D is wrong: A person can close her mind to a risk only if she first realises it exists; the jury accept that Priya never did.
Why E is wrong: Section 1(1) and (3) expressly allow arson to be committed recklessly.
A little more practice done.
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