Even by the mid-1990s it was fair to say that the decision in R v. Caldwell [1982] AC 341 [S&S2 pp. 140-3] had become confined largely to its own offence. Whereas it was, at first, treated as a general authority concerning the mens rea requirements of recklessness-based offences (and their like; cf. Seymour [1983] 2 AC 493), over the subsequent decade or so it came to be seen primarily as a decision concerning the interpretation of section 1 of the Criminal Damage Act 1971.

Now, in that specific context, Caldwell is no more. In R. v. G and another the House of Lords has determined that, within the terms of section 1, "recklessness" requires actual foresight of the risk (i.e. Cunningham recklessness: S&S2 p. 140-1). As Lord Bingham put it [at 41], drawing on the definition in the Draft Criminal Code,

"A person acts È 'recklessly' within the meaning of s 1 of the 1971 Act with respect to - (i) a circumstance when he is aware of a risk that it 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...."

An important question remains. Caldwell may be undone with respect to the Criminal Damage Act 1971, but is it still authority of any more general application?

We think the answer is yes. Even though Caldwell recklessness has not been favoured in other offences, it remains an available interpretation of the recklessness requirement, where it occurs, in any particular offence. To see this, one must look more closely at the decision in G itself. Three broad propositions may be extracted from the judgments.

1. The key proposition in G is that, as a matter of statutory interpretation, the House of Lords in Caldwell misconstrued section 1 of the Criminal Damage Act 1971 and failed to give effect to the meaning of "reckless" that Parliament intended. All five of their Lordships concurred in this conclusion. In the leading judgement, Lord Bingham (with whom Lords Browne-Wilkinson and Hutton agreed) undertook an extensive review of the legislative and case-law history of the offence. The review establishes clearly that the interpretation of section 1 in Caldwell was not in accord with Parliamentary intent; a conclusion echoed following a similar exercise conducted by Lord Steyn (with whom Lord Hutton also concurred).
   
2. That was enough to decide the case and, by itself, it does not foreclose the deployment of Caldwell recklessness on another occasion in another statute. Lords Bingham and Steyn, however, went further and buttressed their reading with a moral argument: one who commits an actus reus inadvertently may not be, or at least may not clearly be, sufficiently blameworthy to warrant conviction and/or punishment for a serious crime:

   "But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication (see DPP v Majewski [1977] AC 443)) one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment."[At 32; see also Lord Steyn at 55.]

   Indeed, especially where the defendant suffers from limitations of age, intellect, or the like, to convict on the Caldwell standard (as interpreted in Elliott v. C (a minor) [1983] 1 WLR 939, DC; S&S2 p. 142) would be manifestly unfair:

   "It is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension. Nor, the defendant having been convicted, is the problem cured by imposition of a nominal penalty." [At 33; cf. Lord Steyn at 52-54.]

3. So what is left? Lord Rodger is alone in restricting his objection to Caldwell to statutory interpretation grounds rather than moral reasons:

   " It does not follow, however, that Lord Diplock's broader concept of recklessness was undesirable in terms of legal policy. On the contrary, there is much to be said for the view that, if the law is to operate with the concept of recklessness, then it may properly treat as reckless the man who acts without even troubling to give his mind to a risk that would have been obvious to him if he had thought about it. " [At 69.]

   His Lordship notes that this possible interpretation may be better suited to some but not all offences, citing the (former) offence of reckless driving, where a Caldwell analysis was preferred by the House of Lords in Lawrence [1982] AC 510 and Reid [1992] 1 WLR 793. Yet in this, Lord Bingham appears to agree:

   " I mean to make it as plain as I can that I am not addressing the meaning of 'reckless' in any other statutory or common law context. In particular, but perhaps needlessly since 'recklessly' has now been banished from the lexicon of driving offences, I would wish to throw no doubt on the decisions of the House in R v Lawrence and R v Reid." [At 28.]

   So it seems possible that Caldwell recklessness may, in at least some contexts, still be a plausible construction of particular offences, notwithstanding the moral objections espoused by Lords Bingham and Steyn. We think the most likely offences where this may occur are those where the recklessness refers to the manner in which an actus reus is performed (e.g. reckless driving), rather than to consequential or circumstantial elements of the offence. [This possibility is discussed further in S&S2, ¾ 5.2(ii).] However, offences of this type will be very rare.

   Other points

   There are a number of incidental aspects of the decision in G that also merit a brief mention:
   
4. In discussing the subjective drift of recent criminal law, Lord Steyn makes an explicit exception of duress, citing Graham [1982] 1 WLR 294 (CA) and Howe [1987] AC 417 in particular and noting [at 55] that "duress requires reasonable belief." This lends further weight to the view that the Court of Appeal's assertion in Martin (David) [2000] 2 Cr App R 42 [S&S2, pp. 551-2, 599; see the updates to the first edition], that mistaken beliefs in duress need only be honest and not reasonable, is of doubtful precedent and does not, at least for the moment, represent the law.
   
5. The position of recklessness with respect to uncontemplated circumstances [S&S2, pp. 143-5] continues to be somewhat unclear. Although the early influence of Caldwell, in begetting a supplemental test of recklessness based on whether the defendant failed to give thought to a risk because he was indifferent to it, should now be discredited, the statement of the test in G differs from that in B v. DPP [2000] 2 AC 428 [see the updates to the first edition]. In G, Lord Bingham states [at 41] that a person is reckless with respect to a circumstance "when he is aware of a risk that it exists or will exist." But in B, their Lordships extend this category to include one who has not thought either way about the matter: D is reckless with respect to a circumstance unless he has a genuine belief that the circumstance is lacking (see, especially, at pp. 459 per Lord Mackay and 466 per Lord Nicholls). On this point, at least in sexual offences, we think that the test in B is to be preferred.
   
6. A final point of irony. The powerful moral argument offered against Caldwell by Lords Bingham and Steyn, to the effect that persons should not be convicted of serious offences unless they at least foresaw the actus reus, seems to have no purchase on the law of manslaughter. Neither does it sit happily with the forthcoming entry into force of the Sexual Offences Act 2003, which imposes a number of objective tests for culpability. It is to be hoped, at least, that the application of mens rea standards that do not demand foresight will, in future, be tempered by their being applied in light of the characteristics of the defendant. Even if Caldwell and negligence standards survive, Elliott v. C (a minor) needs, and ought, not.

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