“It is now arguable that the ruling in Caldwell has meant that objective

recklessness is virtually indistinguishable from negligence”

 

 

The decision in Commissioner of the Police for the Metropolis V Caldwell 1 is widely accepted as having serious implications on how the criminal law understands recklessness. Critics argue though whether the objective test created leaves negligence and objective recklessness as interchangeable principles.

 

Whilst many crimes require an intent by the accused, for him to be found guilty, some crimes will also allow recklessness in its place. The directions given to the jury in defining recklessness have changed over time, with the wording often vital to the application of the law.

 

In everyday language recklessness means the taking of an unjustified risk. However, the test for recklessness established in Caldwell 1 is different. Caldwell recklessness contains two limbs, the first of which is where the act carries an obvious risk. This is the subjective test taken from R V Cunningham 2. The second limb which has been dubbed ‘objective recklessness’ is where the

accused has either not given any thought to the risk involved or has recognised that there is some risk involved but gone ahead with it anyway. Negligence is where the defendant has fallen below the standards expected of a reasonable person.

 

On the face of it, it would appear that the second limb is very close to negligence. However, there are certain qualifications to the Caldwell 1 ruling which separate the two concepts. Each one is discussed in further detail below. They are 1) The need for an element of seriousness, 2) Capacity of the accused, 3) The Caldwell loophole, 4) Limitations of Objective recklessness and 5) The difference between negligence and gross negligence as regards to recklessness.

 

In R V Lawrence 3, Lord Diplock indicated that for a finding of recklessness, something more than simple negligence is needed. He insisted that there should be a requirement for an “obvious and serious risk” 4 established. This need for the risk to be ‘obvious and serious’ (reckless) gives it distinction from a risk being merely ‘obvious’ (negligence). This was endorsed by Lord Goff in R V Reid 5 for reckless driving when he stated that for liability there must be a “serious risk of harm.” 6 He also added “the harm must be

more substantial than the kind of damage associated with an error of judgment. The risk of serious harm as opposed to a serious risk of harm is another element of objective recklessness which is not a requirement for ordinary negligence.

 

The need for a risk of serious harm for objective recklessness was encapsulated in Lawrence 3 by Lord Diplocks requirement for a “moral turpitude” 7 for reckless driving whilst mere negligence would only amount to the lesser offence of careless driving. This distinction punishes those who are reckless as they have failed to consider the consequences of their actions (or considered them and acted the same anyway). This attitude is seen to be culpable and deserves criminal liability whilst a negligent error of judgement in most cases does not.

 

In Reid 5, Lord Ackner saw it appropriate to draw an analogy of a swimmer about to dive to illustrate the ‘moral turpitude’ required for recklessness. If a swimmer dives from a high diving board over a busy swimming pool, having overlooked the risk of collision with someone underneath, then he is morally guilty and is acting recklessly. However, if he dives from the side of the pool, again having overlooked the risk of collision, he is negligent but not reckless. There is not the same ‘serious risk of harm’.

 

The issue of capacity concerns the characteristics of the accused. Whilst the law of negligence follows what a reasonable person with the defendants characteristics would have done in the particular circumstances, the Caldwell objective recklessness does not. In Elliot V C (a minor) 8 a 14-year old child in remedial school was found guilty of arson despite not being able to appreciate the risk of her actions, because she was judged against the standards of a reasonable person. Had the test been of negligence and not objective recklessness, she would have been acquitted because a reasonable person with her characteristics could not have appreciated the risk. The Court of Appeal followed Elliot strictly in R V Coles 9 where a youth of allegedly low mental capacity committed arson. It stated that the only relevant capacity was that of the average person, not a person with the same characteristics as the defendant.

 

An unsuccessful attempt to moderate the rule was made in R V R 10, a case where marital rape was first recognised as a crime. The counsel for the accused unsuccessfully argued that in deciding what is ‘obvious’ to the reasonable person, that person should be taken as having the permanent characteristics of the accused. Though unsuccessful in these persuasions, the House of Lords allowed

moderation to the rule in Reid by allowing capacity to be relevant only where there is a sudden loss of it, such as with a heart attack whilst driving. In these situations, objective recklessness and negligence are a little closer together.

 

Whilst the tests developed in Caldwell 1 were intended to broaden the concept of recklessness to catch those who were morally at fault but without strong enough evidence of their state of mind, it has left a loophole in the test. The Caldwell lacuna as it is often referred to concerns the situation where a defendant considers a risk but wrongly judges that there is none. For example if a driver attempts to overtake a another vehicle and in doing so crashes into an oncoming vehicle, it would be widely accepted that the driver was as much at fault as someone who hadn’t considered the risk, even if after considering it he believed there was none.

 

The Caldwell lacuna was examined in the case of Chief Constable of Avon and Somerset Constabulary V Shimmen 11 where the defendant claimed to have considered the risk of his demonstration of Martial Arts breaking a window but believed there was no risk. Though, on the facts of the case the court decided he appreciated there was a risk, which bought him inside the Caldwell formula, the court did recognise the Caldwell lacuna.

 

Whilst a test of negligence would find those relying on the Caldwell lacuna guilty, it must not be thought that the loophole is saving lots of defendants with Solicitors persuading clients to claim they examined a risk and believed there was none. In fact “It is interesting to note that despite judicial acceptance of the “lacuna”, there has been no case to date in which a defendant has actually escaped liability on the basis of having ruled out the risk.” 12 It must be appreciated that the practicalities of the matter leave proving that what would be obvious to the reasonable man having been considered and dismissed as without risk being very hard to prove to an often sceptical jury.

 

Whilst Caldwell objective recklessness is often examined by judges and Jury’s are often directed upon, it must not be thought that the test is extremely wide reaching. Negligence can apply to much more of the Criminal law. Originally the test only applied to the destruction of damaging of property. Though Lawrence initially extended this to “injury to the person or of substantial damage to property,” 3, recent case law has stepped away from using the Caldwell formula in anything but damage to property. Caldwell 1can no longer apply to manslaughter 13, assault 14, or rape 15. Caldwell

objective recklessness had considerable influence in the 1980’s but its importance has since diminished. Even the decision in Lawrence 3, which advanced Caldwell 1 into reckless driving is no longer relevant since the offence was abolished in 1991.

 

It is also uncertain whether Caldwell objective recklessness covers omissions as well as positive acts. Whilst the wording in Caldwell 1 only refers to positive acts, negligence can be by way of positive act or omission. Whilst I suggest that if an omission came before the courts it would be dealt with in the same way that an act would, the fact that omissions are not specifically included in the test would give discretion to the judge on the particular facts.

 

The future of objective recklessness looks bleak with possible reforms on the horizon leaving any relationship between objective recklessness and negligence irrelevant. The Law Commissions Criminal Liability (Mental Element) Bill defines recklessness in subjective terms, reverting back to the test originally in Cunningham 2.

 

Proposals for reforming the standard imposed by the reasonable man could however benefit the Caldwell 1 test. Creating the test for reasonableness of someone with the characteristics of the defendant would leave fairer results, benefiting defendants such as

in Elliot 8 and Coles 9. It would also leave Caldwell objective recklessness more in-line with negligance that gives the same test of the reasonable man. This adaptation however could also be put in place if the Law Commissions above proposals are put in place.

 

If Objective recklessness is to survive, it is likely that it will remain limited to criminal damage as judges shy away from using it elsewhere. There is however a long standing relationship between gross negligence manslaughter and the principles found in Caldwell 1. Whilst it has been accepted that Objective recklessness is no longer the test for this form of manslaughter (as above), the Caldwell test was used for about a decade in these sort of crimes. The courts then reverted back to the test of gross negligence as though the two tests were interchangeable. The only real difference between the two (apart from the lacuna) related to the severity of harm that was risked.

 

In examining the relationship between objective recklessness and negligence, it would be appropriate to distinguish between two types of negligence. Gross negligence requires less care than ordinary negligence. For example driving without due care and attention (ordinary negligence) is covered by section 3 of the Road Traffic Act 1988. On the other hand, gross negligence would be when the driver “falls far below what would be expected of a

competent and careful driver” (emphasis added) 16. Going back to an earlier example, the diver who dives from the high board over a busy pool without considering anyone beneath him would be grossly negligent whilst the diver who dives off the side of the pool with the same lack of regard would be committing ordinary negligence.

 

In conclusion, whilst ordinary negligence and Caldwell objective recklessness are far apart, Gross negligence and Caldwell objective negligence are much closer, leaving few differences. The need for seriousness in recklessness in particular precludes ordinary negligence but not necessarily gross negligence. The Caldwell lacuna is one difference although in practical terms it remains a principle which is unused. Other differences include the test for reasonableness, the objectivity of the Caldwell test being different from the objectivity of a reasonable person with the same characteristics which is part of the negligence test.

 

One major difference between objective recklessness and negligence is in the scope. It is yet to be examined by a court whether omissions can be covered by objective recklessness as only positive acts are specifically mentioned in the test. Caldwell objective recklessness is also limited to criminal damage.

 

The future of objective recklessness is still cloudy. If we are to equate it with gross negligence, leaving it as a test may encourage people to think more about risks before taking them whilst being insensitive to the rights of others is not necessarily blameworthy-for example in the case of motor accidents caused by negligence, slow reactions or awkwardness could be to blame.

 

Whilst Caldwell objective recklessness and gross negligence are inexorably linked, the matter may be one that will not be discussed for much longer. With recent proposals by the Law Commission to revert to a more subjective test for recklessness, the Calwell test looks to be nearing the end of its life.

 

1.COMMISSIONER OF THE POLICE FOR THE METROPOLIS V CALDWELL (1982) AC 341

2.R V CUNNINGHAM (1957) 2 QB 396

3. R V LAWRENCE (1982) AC 510

4. ibid

5. R V REID (1992) 95 CR APP R 393

6. ibid

7. ibid

8. ELLIOT V C (A MINOR) (1983) 2 ALL ER 1005

9. R V COLES (1995) 1 CR APP R 157

10. R V R (1992) 1 AC 599

11. CHIEF CONSTABLE OF AVON AND SOMERSETCONSTABULARY V SHIMME

12. CRIMINAL LAW, TEX AND MATERIALS:C.M.V. CLARKSON AND H.M KEATING, 4TH EDITION PG 169

13. R V ADOMAKO (1994) 2 ALL ER 79

14. R V SPRATT (1990) 91 CR APP R 362

15. SATNAM AND KEWAL SINGH (1983) 78 CR APP R 149

16. ROAD TRAFFIC ACT 1988 S2A

 

1956 WORDS

BIBLIOGRAPHY-

CRIMINAL LAW: CATHERINE ELLIOT AND FRANCES QUINN 3RD EDITION

CRIMINAL LAW REVISION WORKBOOK: CONSULTANT EDITOR LORD TEMPLEMAN

CRIMINAL LAW THEORY AND DOCTRINE: AP SIMENSTER AND GR SULLIVAN

CRIMINAL LAW: PETER SEAGO, 3RD EDITION

CRIMINAL LAW TEXT AND MATERIALS: CMV CLARKSON AND HM KEATING

ENGLISH LAW: DENIS KEENAN, 12TH EDITION

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