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Published online by Cambridge University Press: 02 January 2018
It is clear that several members of the judiciary are unhappy about some of the moral implications of Caldwell recklessness. In particular, there is concern about the accused whose capacities, mental or physical, are appreciably more restricted than those of the ordinary person. Such person may not just fail to foresee risks obvious to rcasonable people, they may plausibly be seen as being incapable of so doing. Judicial anxiety about this first surfaced in Elliott v C. There, the Queen's Bench Divisional Court allowed a prosecution appeal against the acquittal of a 14 year old girl (who was in a remedial class at school) for the criminal destruction of a garden shed and its contents.
1. [1983] 2 All ER 1005.
2. Ibid, at 1006.
3. Ibid, at 1010c and 1012h.
4. Stephen Malcolm v R (1984) 79 Cr App Rep 334, especially at 341 (Ackner LJ, Bristow and Popplewell JJ) and DDP v K (1990] 1 All ER 331 at 334 (per Parker LJ).
5. Smith, J. C. and Hogan, B., Criminal Law (1988, 6th edn) p 64 Google ScholarPubMed.
6. D. W. Elliott and M. J. Allen, Elliott and Wood's Casebook on Criminal Law (1989, 4th edn) p 122. For further academic comment on similar lines, see Charlson, C. M. V. and Keating, H. M., Criminal Law: Text and Materials (1990, 2nd edn) p 190 Google Scholar, Wells, C., ‘The Mental Element in Crime: 1974-1983’ [1984] Crim LR 652 at 661Google Scholar, Glazebrook, P. R., ‘Criminal Negligence’ [1984] CLJ 1 at 2CrossRefGoogle Scholar and MacDonald, E., ‘Reckless Language and Majewski’ (1986) 6 LS 239 at 242Google Scholar.
7. Birch, D., ‘The Foresight Saga’ [1988] Crim LR 4 at 14Google Scholar.
8. J. P. Leff, ‘Chronic Syndromes of Schizophrenia’ in J. K. Wing and L. Wing, Psychoses of Uncertain Aetiology (1982, eds), Handbook of Psychiatry, vol 3, Davison, G. C. and Neale, J. M., Abnonnal Psychology (1982) p 401 Google Scholar.
9. F. Kreupe Taylor, ‘Descriptive and Developmental Phenomena’ in M. Shepherd and O. L. Zangwill, General Psychopathology (1983).
10. Davison, and Neale, , op cit, p 30.Google Scholar
11. Id, p461.
12. Hayes, C. G. (1988), ‘Mental Load and Risk in Traffic Behaviour’, Ergonomics 31 (4) 571 at 576-7Google Scholar, Brown, I. D. (1989), ‘How can we train safe driving’, Professorial Inagural Lecture, University of Gronigen, at p 12 Google Scholar, Brown, I. D. and Groeger, J. A. (1988) ‘Risk Perception and Decision-Taking during the transition between novice and experienced driver’, Ergonomics 31 (4) 585 at 588-9CrossRefGoogle Scholar, Mourant, R. R. and Rockwell, T. H. (1972) ‘Strategies of Visual search by Novice and Experienced Drivers’, Human Factors 14 (4) 325. CrossRefGoogle Scholar
13. (1987) 141 Health and Safety Information Bulletin 3.
14. The key phrases used in Caldwell and Lawrence.
15. Williams, G., Textbook of Criminal Law (1983, 2nd edn) p 70 Google Scholar, Smith, and Hogan, , op cit, p 55 Google Scholar, Hart, H. L. A., Punishment and Responsibility (1968) pp 181-3Google Scholar, Clarkson, and Keating, , op cit, pp 572-5Google Scholar. Note the stress on strict liability as exceptional.
16. R v Treacy [1971] AC 537 at 560c.
17. Tesco Supermarkets Ltd v Nattrass [1971] 2 All ER 127 at 155c.
18. Id, at 155 c. d.
19. Lawrence [1981] 1 All ER 974; Caldwell [1981] 1 All ER 961.
20. Lawrence op cit, at 981e.
21. Caldwell, op cit, at 965 c. d.
22. Lawrence, op cit, at 978b.
23. Delgado, R. ‘Rotten Social Background’ (1985) 3 Law and Inequality 9 Google Scholar, Hart, H. L. A., op cit, pp 35–10Google Scholar, Fletcher, G., Rethinking Criminal Law (1978) pp 798–817 Google Scholar. Packer, H., The Limits of the Criminal Sanction (1968) pp 108–113 Google Scholar, Gross, H., A Theory of Criminal Justice (1979) pp 318–328 Google ScholarPubMed, Brett, P., An Inquiry into Criminal Guilt (1963) p 100 Google Scholar, Clarkson, and Keating, , op cit, p 573 Google Scholar.
24. Hart, , op cit, p 181 Google Scholar.
25. Miller [1983] AC 161 at 176e, 178b.
26. Lord Diplock was also only prepared to see strict liability imposed where the person on whom the duty was imposed could do something to promote observance of the obligation: Sweet v Parsley [1970] AC 132 at 163.
27. Sheppard [1981] AC 394 at 408C.
28. Ibid, at 408B.
29. Birch, , op cit, p 13.Google Scholar
30. Duff, R. A. (1990), Intention, Agency and Criminal Liability, pp 149–173 Google Scholar, Brett, , op cit, pp 98–100 Google Scholar, Hart, op cit, chapter 6, Wells, C., ‘Swatting the Subjectivist Bug’ [1982] Crim LR 209 Google Scholar.
31. The recent cases of Savage and Parmenter might have been used as an opportunity for the Law Lords to reconsider the whole basis of Caldwell recklessness. But they were not asked to do so (transcript, R v Savage, R v Parameter, House of Lords (1991) 7 November, at p17).
32. Dworkin, R. (1977), Taking Rights Seriously, pp 111–116.Google ScholarPubMed
33. This assumption is most evident in academic circles in the foremost textbooks such as Smith and Hogan or Williams.
34. See Alldridge, P., ‘What's wrong with the traditional Criminal Law course?’ (1990) 10 LS 38 Google Scholar.
35. See references in note 8.
36. Elliott v C [1983] 2 All ER 1005; Bell [1984] 3 All ER 842; Stephen Malcolm R (1984) 79 Cr App R 334.
37. Hardie [1984] 3 All ER 848; Dickie [1984] 3 All ER 173.
38. Huncock and Shankland [1986] AC 455 at 468E.
39. Cooke [1986] 2 All ER 985 at 987-8.
40. Elliott, op cit, p 1006c, our emphasis. Of course it seems strange that the court did not simply convict her on the basis of intentional criminal damage. She intended to light the white spirit and that malice could surely be transferred to the shed. But we confine our discussion to the case as argued and decided.
41. We will later develop this distinction further.
42. Whitehead v Haines [1964] 2 All ER 530 at 534A.
43. Id, at 1008f, our emphasis.
44. Elliott v C, op cit, at 1011 d.
45. Caldwell, op cit, at 966g: ‘[the Caldwell] state of mind is neither more nor less subjective than [the Cunningham state of mind]’.
46. Bell, op cit, p 844 e-h.
47. Id, at 844 e. See [1984] Crim LR 686 for a similar view from Professor J. C. Smith.
48. Bell, op cit, at 847 e.
49. Op cit, at 847 g.
50. The ambiguity of this passage is compounded by the fact that, in Elliott, Goff LJ seemed to envisage situations where inquiry as to why the risk was not perceived could be relevant to establishing guilt, op cit, at 1012a.
51. Stephen Malcolm R, op cit, at 337.
52. (1978) 67 Cr App R 14.
53. Hart, op cit, at p 155.
54. Hardie, op cit, p 853g, our emphasis.
55. Bailey [1983] 2 All ER 503.
56. Hardie, op cit, p 853 d-e, emphasis added.
57. Criminal Damage Act 1971, ss l(2) and l (3).
58. Even at his trial, Dickie would not admit that there was any chance of burning the floorboards.
59. This would be the effect of Miller coupled with a rejection of the argument advanced here.
60. Fletcher, op cit, p 513.
61. Vuoso, G., ‘Background, Responsibility and Excuse’ (1987) 96 Yale Law Journal 1661 at 1672CrossRefGoogle Scholar.
62. See Brown, I. D., ‘The Traffic Offence as a Rational Decision’ in Lloyd-Bostock, S., Psychology in Legal Contexts (1981) 203, 212-219CrossRefGoogle Scholar for the view that young male drivers are more dangerous than females and older males because of hazard perception failure rather than different attitudes towards risk. Of course this might be an argument for placing restrictions on such drivers, for example speed limits. After all, in Northern Ireland, newly qualified drivers are restricted to 55 mph for a year.
63. R v Bailey [1983] 2 All ER 503. Dicta in Hardie suggest that a decision to drive when tired or sleepy might also provide the culpability to ground a conviction for reckless driving where tiredness or sleepiness causes an incapacity negativing culpability at a later stage, see Hardie, op cit, note 31 at 853f. However contra Clarke (1990) 91 Cr App R 69; Hand v DPP [1991] Crim LR 437 and R v Bennett [1991] Crim LR 788.
64. Kelman, M., ‘Interpretative Construction in the Substantive criminal Law’ (1981) 33 Stanford Law Review 591 CrossRefGoogle Scholar.
65. See R. A. Duff's analogous argument, op cit, pp 165-166 and his ‘Recklessness’ [1980] Crim LR 282 at 289 et seq. See also Lord Diplock's reference in Miller to those who do not trouble to give their mind to a risk in Miller, op cit, at 178A.
66. Note that although the issue is often framed in terms of destroying the shed and its contents, damage is clearly the key concept and destruction surplusage, Elliott, D. W., ‘Criminal Damage’ [1988] Crim LR 403 Google Scholar.
67. Elliott, op cit, at 1010e.
68. And here we note that the spirit, as well as the carpet, formed part of the contents she was (inter alia) charged with damaging. If the charge had merely been damaging the white spirit, the conviction would have been straightforward.
69. Of course, children end up in remedial classes for a range of reasons, and lack of intellectual capacity may he only one of them.
70. Presumably she could have been convicted ofdamaging the contents only, despite the inclusion of damage to the shed itself in the terms of the charges preferred. See Bing, I., ‘Criminal Procedure and Sentencing in the Magistrates' Court’ (1989) pp 6–7 Google Scholar on defective informations.
71. Obviously if it had been hers to light, there would be no criminal damage, but the question serves to point up the capacity issue by hypothesising a strong self-interest in spotting the risk.
72. Applying the tests suggested by Hardie and Bailey.
73. Bratty v A-G [1963] AC 386 at 418.
74. In Bratty op cit, at 413, Lord Denning stated that ‘[t]he evidence of the man himself will rarely be sufficient unless it is supported by medical evidence…’
75. By a colleague.
76. The latter phrase was preferred by LordBrandon, in Sullivan [1983] 2 All ER 673 Google Scholar at 678f.
77. In the Court of Appeal, Watkins LJ stated that ‘there was little or no evidence which went to the aspect of the quality of the act’.
78. Chatterton v Gerson [1981] QB 432.
79. P. Alldridge, op cit.
80. We would cite Larsonneur (1933) 24 CR ADD R 74 and Winzar (1983) Times, 28 March as obvious contradictions of any capacity responsibility doctrine. See Alldridge, op cit, at 44 for emphasis that this is a moral point.
81. We note the developing debate between advocates of ‘character responsibility’ and ‘capacity responsibility’. For useful recent exposition and contrasting positions in the debate, see M. S. Moore, ‘Choice, Character, and Excuse’ and P. Arenella, ‘Character, Choice, and Moral Agency’, in E. F. Paul, F. D. Miller, Jr. and J. Paul, Crime, Culpability, and Remdy (1990). See also N. Lacey, State Punishment (1988) especially chapter 3.
82. Cf the very artificial limits on defences such as necessity and duress.
