p.p1 counts of arson under the Criminal

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This essay aims to trace the journey of ‘recklessness’ in Criminal Law and analyse how persuasive the reasons given in R v G were to overrule Caldwell- a case that faced wide criticism for criminalising individuals who failed to foresee the risk of harm in their act.

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The facts in the case of R v Caldwell as stated by Lord Diplock were simple. The respondent worked for a proprietor at a residential hotel. He had a quarrel with the proprietor. One night after getting drunk in the early hours, he decided to set fire to the hotel. About 10 guests were residing at the hotel at that time. He broke a window and started a fire in the ground floor room but it was found that the fire had been put off before any severe damage was caused. He was indicted at the Central Criminal Court upon two counts of arson under the Criminal Damage Act 1971, s 1 and 2. At his trial, he revealed that he was intoxicated and that did not consider that there might be people there whose lives might be endangered. He pleaded guilty to the second count but challenged the first count.

The question before the court now was whether to apply the subjective or the objective approach to dealing with a fairly controversial area in criminal law : recklessness. 

A subjective approach was more popular as observed in the cases of Briggs, Daryl Parker with 
Cunningham being the most noteworthy example. In this case, the defendant dislodged a gas meter from a wall in order to commit theft of the money stored therein. This resulted in a gas leak and this gas was inhaled by an occupant in the adjoining building.The defendant was charged with recklessly administering a noxious substance. A subjective approach was adopted by the court to determine whether the defendant had ‘foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it’.  

However, a completely different modus operandi was adopted in Caldwell’s case. Lord Diplock disregarded the fact that although the Parliament replaced the Act of 1861 by the Act of 1971 removing  the word ‘maliciously’ as description of mens rea with the phrase ‘intending to destroy or damage any property or being reckless as to whether any property was being damaged’ it intended the words to be interpreted in the same sense as ‘maliciously’, also elucidated by Professor C S Kenny in his works which was approved by the Court of Appeal in Cunningham’s case.