1) risk that exists or will exist; (ii) a

1) The Decision in R v CaldwellCommissioner of Police for the Metropolis v Caldwell is case surrounding the issue of the requirement of recklessness for mens rea. The previous authority on the topic was a case known as R v Cunningham. In Caldwell Lord Diplock chose to set out a brand new approach to recklessness which leaned more heavily on judging liability objectively rather than subjectively. He set out the definition of recklessness as follows:”(1) He does an act which in fact creates an obvious risk that property will be destroyed or damaged and(2) when he does that act he either has not given any thought to the possibility of there being any such risk or he has recognized that there was some risk involved and has none the less gone on to do it”In addition to Caldwell, the same approach was used in the case of Lawrence the only change being a slight refinery of the definition by shifting “obvious risk” to an “obvious and serious risk”.2) The Approach in R v GIn the case of R v G Lord Bingham and the House of Lords took the decision to overrule Caldwell. Bingham believed that Caldwell had been a fundamentally wrong turn for the law and highlighted problems with the definition of recklessness set out such as “it is not clearly blameworthy to do something involving a risk of injury if… one genuinely does not perceive the risk.”He based the new definition of recklessness on the Draft Criminal Code Bill which had been formulated in 1989:”A person acts recklessly with respect to – (i) a circumstance when he is aware of a risk that exists or will exist; (ii) 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.’Whilst this does lean a great deal more heavily on subjective elements of recklessness it clearly retains objective aspects when it considers the unreasonability of the risk. Whilst this subjective approach received some academic criticism, it was generally met with approval from both judges and legal scholars. The House of Lords gave a range of reasons for overruling Caldwell citing issues of ensuring a culpable state of mind, prevention of obvious unfairness, academic and judicial criticism of Caldwell and the misinterpretation of the law.3) Culpable State of Mind and Obvious UnfairnessThe House of Lords reasoned that purpose of a mens rea requirement is to ensure that the defendant has a culpable state of mind which it was argued that the Caldwell definition of recklessness was not ensuring.This can be seen to be true in the case of R v G itself. In this case two children threw newspaper which they had lit on fire underneath a wheelie bin, assuming the fire would put itself out. Instead a huge fire formed causing large amounts of damage to the Coop. Under the Caldwell definition of recklessness the court would have taken an objective approach to the states of mind and held them liable as they have not given any thought to what normal reasonable people would see as an obvious and serious risk. This would be unfair as the defendant’s are only children and therefore should not be held to this objective reasonable standard therefore the Lords needed to formulate a new definition.5) Academic and Judicial CriticismAn additional reason cited by the Judge is that the decision in Caldwell received vast academic and judicial criticism. Lord Bingham states that a decision should not be “departed from simply because it meets with disfavour in the learned journals” but the sheer amount of disapproval was a contributing factor.This criticism came from academics such as J.C. Smith, G. Williams, E. Grew and D. J. Birch. One of the key criticisms was something known as the Caldwell loophole which pointed out a gap in the definition of recklessness set out in Caldwell. There was no provision for a defendant who stops to consider the risk the wrongly concludes there is no risk. Birch explains this in the context of a driver ‘whose unshakeable faith in their ability to avoid danger displays an arrogance bordering on lunacy’. This driver should be held liable for their actions but under the Caldwell definition there is possibility of escape. Birch feared that the courts ‘were sliding towards a situation where the courts recognise and give effect” to this loophole “as an escape route from recklessness”. The Caldwell loophole was never properly tested in courts but remained a concern with academics and judges whilst the definition of recklessness reigned.6) Misinterpretation of the ActThe final key reason cited as a justification for overruling Caldwell is that it was a misinterpretation of s.1 of the Criminal Damage Act 1971 offensive enough to require overruling. The Criminal Damage Act 1971 replaced the Malicious Damage Act and intended to replace the word malicious with reckless for increased precision. This can be seen from the context in which the Act was passed in, after a draft had been published in the Law Commission Report no.29 and Working Paper No.23. Therefore it was determined that there was no intention of Parliament to change the definition of recklessness from subjective to objective in the way that the House of Lords chose to do in Caldwell.The House of Lords in R v G recognised there is a ‘very high threshold for departing from a previous decision in the house” but believed this interpretation of the act to be “beyond the range of feasible meanings” and said “the need to correct the misinterpretation is compelling”.ConclusionIn conclusion the reasons for overruling Caldwell appear to be compelling. The definition set out can be seen in R v G to be susceptible to causing injustices as it falsely assumes that a lack of thought is enough to determine criminal culpability. In addition, as pointed out by academics, the definition also has within it a clear loophole, excluding to hold people who wrongly conclude there is no risk as reckless. Finally the issue that Parliament’s intention was distinctly misinterpreted by the courts is persuasive as the courts exist only to serve the wishes of the legislature and should not be reading into acts things that, when presented in the context of the time, were almost certainly not desired.However, whilst the conclusion that Caldwell must be overrule can be considered persuasive that does not necessarily mean we have now reached the final, flawless definition of recklessness. K. Amirthalingam argues that, whilst the previous definition was flawed, the new definition also leans too heavily on subjective elements and wishes to find some level of middle ground between the two.  Amirthalingam argues that the men’s and the rea should be separated out allowing subjective elements to determine the existence of a culpable state of mind and objective elements to determine the quality of this state of mind.