R v G

R v G [2003] is an English criminal law ruling on reckless damage, for which various offences it held that the prosecution must show a defendant subjectively appreciated a particular risk existing or going to exist to the health or property of another, and the damaging consequence, but carried on in the circumstances known to him unreasonably taking the risk. It abolished the "objective recklessness" test set out in R v Caldwell, where the standard for the existence of a risk was altered from an objective to a subjective test, whereas the reasonableness of taking the risk as it was perceived was still to be objective.

Facts

Two boys, aged 11 and 12 years, were camping without their parents' permission when they entered the back yard of a shophouse, the Co-op, of Newport Pagnell in the early hours of the morning. Lighting some newspapers they found there, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins against the wall, where fire spread up and on to the roof. Approximately £1m damage was caused. The children and their defence team argued they expected the fire to burn itself out although they were aware of the risk of fire spreading.

Judgement

The Court of Appeal acknowledged that the Caldwell test had been criticised and had not been applied in a number of Commonwealth jurisdictions and saw great force in these criticisms but held that it was not open to it to depart from it.

That Court agreed to refer upwards to the Judicial Committee of the House of Lords (the highest court) where Lord Bingham, giving the leading opinion of the unanimous five-judge decision, saw the need to modify (in Caldwell) Lord Diplock's definition to take account of the defence of infancy, which contains the concept of "mischievous discretion". This rule requires the court to consider the extent to which children of eight or more years are able to understand the difference between "right" and "wrong".