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Life in crime

Jeannie Mackie reports on the House of Lords reconsideration of recklessness, and the treatment of Guantanamo Bay prisoners

12 December 2003

In R v G [2003] UKHL 50, an appeal against conviction of two boys aged 10 and 11 convicted of arson, the House of Lords modified the Caldwell [1982] AC 341 test for recklessness under s 1 of the Criminal Damage Act 1971. This is an authority of considerable importance to defendants whose subjective perception of the risks of the damage likely to be caused is now incorporated into the tests for mens rea. As arson and criminal damage generally are offences most frequently committed either by children or the mentally disturbed, the case has wide practical implications. The Caldwell test of recklessness as defined by Lord Diplock is that where an ordinary prudent bystander would see a risk of damage the defendant is reckless if he either had not given any thought to the possibility of risk or having recognised there was a risk went on nonetheless to do the act which created it. In Elliot v C (A minor) 77 CrAppR, DC the full rigour of Caldwell wa...

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