Caldwell recklessness is not dead

Sunday 10 October 2004 at 12:17 am | In News | Post Comment

Tuesday 5 October:
R v G [2003] HL
delivered Caldwell a fatal blow so far as the Criminal Damage Act was concerned. It was not clear what survived R v G, but we now know that the test of recklessness for all but Criminal Damage may have survived. The authority for this is an unreported case in the Court of Appeal, R v Mark and another [2004] CA.

[Gross negligence manslaughter – D need not actually be aware of risk of death]
DD were involved in the management of a company that contracted to clean a resin storage tank. V, an apprentice died when an explosion occurred because a halogen lamp was knocked over by another apprentice. The appeal was made so DD could obtain permission to take the case to the House of Lords to ask them to consider whether R v G had altered the position in R v Adomako [1994]

Held: Actual foresight by D of the risk of death was not essential in gross negligence manslaughter (R v Adomako). Further, the decision in R v G was limited to recklessness in the context of a particular statutory provision (Criminal Damage) and no reference had been made to R v Adomako.

Guilty leave to appeal against conviction refused.
[Comment] The court considered the following two cases:
A-G’s Ref (No 2 of 1999) [2000] (CA) which confirmed that where the defendant’s state of mind was relevant in Gross Negligence manslaughter the test was objective.
R v DPP, ex p Jones [2000] (QBD) IRLR 373 which said that the test of negligent manslaughter is an objective one confirming Attorney General’s Reference No 2 of 1999.

If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal.

Where D fails to consider the risk (as opposed to taking a risk) in an obvious and important matter, he can still be convicted.

In the instant case the Court of Appeal has followed the law to the letter and decided that the law is in no need of revision.

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