is best defined as the disregard for safety. The decision made in thecase of RVG and another (2003) created a new revolution in the areaof recklessness. The decision set a precedent for the decisions insimilar instances in the future by demanding the use of subjectivetests to establish recklessness as opposed to the objective teststhat observed the situation through the eyes of a reasonable person.The use of the objective methods caused unfairness and uneasinessamongst the judges as they passed the ruling (Emanuel, 2010, p. 28).
Specifically,the ruling accepted that neither of the boys aged 11 and 12 yearsappreciated the fact that there was any risk of fire spreading andcausing more damage. The judges explicitly admitted that they wereuneasy of convicting the two young boys. Consequently, the juryconcluded that it is immoral and unjust to convict a defendant andspecifically a young child based on the understanding of someone elsegiven that the child had no ability to evaluate the possibleconsequences of their actions (Jefferson, 2007, p.46).
The twoboys were in a camp without the permission of their mother. Theyhappened to light up some newspapers using a lighter that they hadcarried. In their area of camping, there were plastic bins.Consequently, each of the boys threw the burning newspapers under thebins and the fire spread into a nearby shop and caused massivedestruction. The boys explained that they expected that the newspaperfire could extinguish itself as the bins were on a concrete floor inthe yard. They lacked the comprehension that the fire could laterspread into the nearby surroundings and cause additional harm(Padfield, 2006, p.89).
The case ofRV Pembliton (1874) was the first case to involve the term reckless.The defendant was accused of the malicious and unlawful cause ofdamage and injury despite the jury finding out that the defendant didnot intend to break the window. Specifically, the jury applied theobjective approach of the reasonable person to arrive at thisdecision.However, upon appeal, the conviction was suppressed, andthe high court questioned why the jury did not find the defendant asguilty after conviction (Jefferson, 2007, p.34).
Similarly,in R v Harris (1882), a prisoner set fire on a picture frame thatlater spread and destroyed the whole house. The jury concluded thatit is possible to imagine that the prisoner set fire on the framewith the knowledge that the fire will later spread to the house. Theother school of thought was assuming that the prisoner had noinformation whether the house would then catch fire or not. The twoschools of thought are possible sources of drawing inference on theintention of the prisoner to burn the house (Pad field, 2006, p.45).
In the caseof R vs. Cunningham (1957), the defendant was accused of fleecingmoney from a gas meter. In the process of removing the gas meter, theaccused disengaged the gas pipes and created a gas leakage. The gasseeped into the next house and affected the occupant who was a woman.Consequently, the ruling convicted the defendant of unlawfullyadministering poisonous gases to destroy a strange life. Although theconviction was against the Persons Act (1861), the court of appealsuppressed it upon appeal. The court ruled that the judges hadmisdirected the jury by replacing the word ‘malicious’ with‘wicked’. Consequently, the court decided that whenever a crimewas defined, the word malice should not be interpreted in the oldvague sense as wickedness. They recommended that the interpretationshould identify the actual intention to cause harm and therecklessness as defined by the knowledge about the possibleconsequences of the actions leading to causing damage (Molan, 2003,p.23).
Therefore,the courts decided that whenever the term malicious was used in thestatute, there was the necessity to identify whether the defendantintended to cause damage or whether the accused was reckless from theindifference of the consequences occurring. Consequently, Cunninghamwas liable for the conviction based on the results of the subjectivetest to evaluate if he knew about the possible consequences fromdisengaging the gas pipes. From this case, the use of the wordmalicious was replaced with recklessness. Consequently, in theyear1982 there was a case by MPC V Caldwell. Caldwell was employed ina hotel by MPC, but he was dismissed one day. Therefore, he developedbitter feelings against his employer. Consequently, Caldwell gotdrunk in one night, and he set the fire in the hotel. Although noserious harm was made to people, there was the destruction ofproperty (Klotter, 1983, p.45).
AlthoughCaldwell accepted to the conviction of criminal damage, he refused toaccept to his intent of causing neither criminal damage nor the factthat he was reckless to the fact that his actions would endangerlife. Caldwell argued that he was too drunk at the time and the ideathat there were people I the hotel did not cross his mind. Caldwellwas found guilty and sentenced to three years imprisonment(Rubenstein, 2007, p.32).
Ever since,the law changed and provided that the only person aware of theaccused mental processes during the time of the loss is the accusedhimself. It is also possible that the defendant cannot recall thefall of events accurately when the peak of excitement or anger was incontrol. Subsequently, it was agreed that there is the need for awider test of recklessness. The jury concluded that a person isguilty of recklessness in one of two occasions. First, if hecommitted an offence that has an obvious risk of the destruction ofproperty. Secondly, when at the time of committing the crime, theaccused is aware of the possible consequences but ignores andproceeds to commit the offence (Rubenstein, 2007, p.17).
The rulingin Caldwell’s case introduced the use of objective testing forrecklessness. The jury also provided that the use of subjectivetesting was necessary for the interpretation of the term ‘malice’.The jury further argued that it was not possible to divide the wordreckless into objective and subjective (Samaha, 1999, p.23). Consequently, objective recklessness was used. The use of theobjective test called for the evaluation of what a rational man woulddo in a similar situation. The use of accurate assessment receivedmuch criticism from the public, judges and academics (Rubenstein,2007, p.25).
Thecontinued use of the objective test in the area of criminal damageappeared as an anomaly. It was causing many injustices, for example,in Elliot vs. C (1983). The defendant was a minor of lowintelligence. She was 14 years old. She had escaped from home andwent to stay in a shed. Due to the cold, she decided to pour somespirit on the floor so she could make fire to keep her warm.Unfortunately, the fire later spread and destroyed the shed(Anderlini, & Felli, 2008, p.24). Although the little girl didnot have the capacity to reason objectively, the court passed thedecision and convicted her for aggravated criminal damage because itwas bound by the objective test from recklessness. However, the judgedisplayed his unhappiness and indicated that he has made the decisionjust because the law compels him. Consequently, the objective testcaused many wrong decisions to be made on cases that involvedrecklessness and there was rising demand to have it changed back intothe subjective form (Rubenstein, 2007, p.45).
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