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Published online by Cambridge University Press: 02 January 2018
‘The House of Lords has a dismal record in criminal cases. All too often their lordships’ decisions have to be reversed by legislation…the present decision could well be another'.
In two recent criminal appeals of major importance on the meaning of mens rea, Caldwell and Lawrence, the House of Lords has departed so far from the academically accepted deffition of ‘recklessness’, that Professor Smith is driven to ask, ‘Can we really afford the House of Lords as an appellate criminal court?’. Such desperation surely indicates that their Lordships have got things badly wrong and it is our purpose in this article to examine whether this is indeed the case.
1. Professor John Smith, [1981] Crim LR 393.
2. [1981] 1 All ER 961.
3. (1981) 1 All ER 975.
4. Supra, Professor Smith's casenote on Caldwell.
5. Caldwell, supra, at 967.
6. The accused, who had been riding his motor cycle through a built-up area where the speed limit was 30 mph, collided with and killed a woman pedestrian. He denied at the trial that he had been riding at 77 mph as the prosecution alleged.
7. [1980] 2 All ER 321.
8. Professor Smith does not include the Road Traffic Act in this general point and therefore dislikes the Lawrence decision less. See below.
9. Such a distinction would in our view be unjustifiable in principle and would result in hideous and unnecessary confusion.
10. Modern statutes show an increasing tendency to use recklessness as a mental element e.g.: Prevention of Frauds (Investments) Act 1958, section 13(1) (as amended by Protection of Depositors Act 1963, section 21(1); Banking Act Act 1979, section 39(1): Gas Act 1972, section 42(1); Ancient Monuments and Archaeological Areas Act 1976, section 1(1)(b).
11. Textbook of Criminal Law. pp. 68–70. This book also deals at some length with the interesting question of the degree of probability which must be proved.
12. Working Paper No.31, Proposition 7B.
13. [1977] 1 All ER 478. (Overruled in Caldwell).
14. (19761 AC 182.
15. 4th Edition, 53.
16. See Law Commission, Criminal Law, Report on the Mental Element in Crime (Law Com No.89, 1978), pp. 28—30.
17. [1957] 2 All ER 412 at 414. The charge was that C unlawfully and maliciously caused his neighbour to take a noxious thing (gas) which endangered his life, contrary to s.23 Offences Against the Person Act 1861. C had ripped out the gas meter.
18. 1st Edition 1902.
19. Supra, at 964.
20. Ibid., at 966.
21. Supra. The appellants had been convicted on indictment of the rape of the wife of a friend. The defence argued that the trial judge should not have told the jury that their belief in her consent must be reasonable if they were to rely on it as a defence.
22. Textbook of Criminal Law, 69.
23. Supra, at 209.
24. (1974) 59 Cr App R 91.
25. See post, p. 272.
26. See post, p. 274.
27. Professor Williams quotes ‘indifference to a woman's consent’, but the phrase does not appear in the part of Lord Hailsham's judgment which is cited. Lord Cross, however, does use the phrase, at 203.
28. At 203. See post, p. 275.
29. It must be conceded, however, that the minority in Caldwell, Lord Edmund-Davies and Lord Wilberforce, wholeheartedly support the ‘academic’ version of recklessness.
30. [1978] Crim LR 5 and 14.
31. [1964] 2 QB 745.
32. Supra.
33. Op. cit. p. 49.
34. Supra, at 103 and 104.
35. Ibid., at 110.
36. I.e. the definition of malice aforethought given by Stephen in his Digest. Article 223, (Smith's “Reply”, supra, 16).
37. Supra, at 107.
38. Ibid., at 117–118. Logic is unpopular in the House of Lords! - see Mujewski [1977] AC 443, Lord Salmon at 482. ‘The answer is that in strict logic this view cannot be justified. But this is the view that has been adopted by the common law in England, which is founded on common sense and experience rather than logic’.
39. [1954] Crim LR 661.
40. Ibid., at 666.
41. Supra. Also see Allsopp (1977) 64 Cr App R 29. Cf. Lord Diplock in Lemon [1979] AC 617, at 638. ‘When Stephen (History of the Criminal Law of England) was writing in 1883, he did not them regard it as settled law that, where intention to produce a particular result was a necessary element of an offence, no distinction is to be drawn in law between the state of mind of one who does an act because he desires it to produce that particular result and the state of mind of one who, when he does the act, is aware that it is likely to produce that result and is prepared to take the risk… It is by now well-settled law that both states of mind constitute “intention” in the sense in which that expression is used in the definition of a crime whether at common law or in a statute’.
42. At 216-217.
43. Report of the Advisory Group on the Law of Rape, (HMSO Cmnd. 6352) 1975, 12.
44. Op. cit., p. 69.
45. Supra, at 210.
46. Ibid., at 203. Lord Simon and Lord Edmund-Davies, the dissenting judges, do not deal specifically with the problem of the mens rea of rape since they regard the defence of mistake as one which requires reasonableness.
47. Ibid., at 237.
48. The reasonableness or otherwise of a belief that the woman does not consent ‘is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed’; Sexual Offences (Amendment) Act 1976, s. 1(2). Although rape is now a crime of recklessness, we believe that this subsection is still relevant since there is a difference between deciding on unreasonable grounds that a woman consents and not bothering to consider the question at all, for instance because all women are thought to be fair game or not possessed of individual rights. Mistakes made recklessly are discussed below. See post, n.96.
49. Law Commission Working Paper No.23, 1969.
50. Cunningham (supra) was not a criminal damage case. There are plenty of Court of Appeal authorities on criminal damage which do subscribe to the Law Commission view, however. Examples are Briggs (supra) Stephenson [1979] QB 695 and the Court of Appeal decision in Caldwell itself. Briggs and Stephenson were overruled in that case, as was Parker (1977) 64 Cr App R 211, which met with much less academic approval than the former, owing to reliance on the problematic concept of ‘wilful blindness’.
51. For example Bates and Russell (1952) 36 Cr App R 175; McKinnon [1958] 3 WLR 688; Grunwald [1963] 1 QB 935; MFI v Nattrass [1973] 1 All ER 762.
52. Eighth Report of the Criminal Law Revision Committee 1966.
53. Section 15(4): deceptions should be ‘deliberate or reckless’.
54. Cmnd. 6323.
55. Lord Diplock in Lawrence, supra at 981.
56. Supra.
57. Supra.
58. The offence concerned was the ‘reckless making of a misleading and deceptive forecast’ contrary to the Prevention of Fraud (Investments) Act 1939, s. 12(1).
59. (1889) 15 App Cas 337.
60. Supra.
61. Supra, at 940.
62. Supra.
63. In McKinnon supra.
64. At 768. The offence charged was under s.14, Trade Descriptions Act 1968.
65. [1977] 2 All ER 341.
66. [1937] AC 576. 583.
67. Our italics.
68. At 347.
69. Supra, at 216. Quoted with approval in Majewski (supra) by Lord Elwyn-Jones (at 471), and Lord Edmund-Davies (at 487).
70. Supra, at 116.
71. Supra, at 981.
72. Ibid., at 977.
73. [1980] Crim L Rev 282.
74. Supra.
75. See Tom Hadden on murder convictions [1968] Crim LR 521, for a discussion o artificiality of many findings of ‘subjective foresight’.
76. Caldwell. supra, at 967.
77. Supra.
78. Supra.
79. Supra.
80. Supra, at 978.
81. Supra, at 966. Our italics.
82. ‘Reducing oneself by drink or drugs into a condition in which the restraints of reason and conscience are cast off was held to be a reckless course of conduct and an integral part of the crime.’ Lord Diplock, in Caldwell at 967 referring to Lord Elwyn-Jones' judgment in Majewski (supra) at 474–475. This would certainly not apply to the involuntary taking of drink or drugs.
83. Supra.
84. Ibid., at 347.
85. Op. cit., p. 292.
86. Supra at 968.
87. Supra.
88. Textbook of Criminal Law, 431.
89. See Mowatt [1968] 1QB 421. ‘Maliciously’ seems to be a stage below ‘with intent’, in that the accused must foresee ‘some physical harm, albeit of a minor character’, rather than the full actus reus.
90. Majewski, supra. Crimes of basic intent (as distinct from specific intent) are those to which there is no defence of self-induced intoxication.
91. From Venna [1975] 3 All ER 788, assault is an offence which can be committed recklessly. Also see Lord Simon in Majewski, quoted above, n.41. If we are right that there should be no difference between recklessness in common assault and in statutory offences, then assault can be committed in a case where the accused should have foreseen the risk of causing alarm where that risk was glaringly obvious.
92. Supra.
93. (1889) 23 QBD 168.
94. Lord Hailsham, supra, at 215.
95. See Grunwuld, above, nn.51 and 61.
96. This is established by the jury taking into account inter alia, the reasonableness of the belief, s. 1(2) Sexual Offences Amendment Act 1976 (supra, n.48). It is once the mistaken belief in consent has been established to be genuine that the court must inquire further and ask whether it is only unreasonable, and therefore a negligent mistake, or wholly and grossly unreasonable, and therefore a reckless one.
97. [1979] 63 Cr App R 59.
98. [1976] QB 1.