Elliott v C (A Minor) [1983] 1 WLR 939

A 14-year-old girl of low intelligence set fire to a shed without appreciating the serious risk of damage. The magistrates declined to convict her of reckless criminal damage, but the Divisional Court held that it was bound by the House of Lords’ decisions on recklessness to find that the risk was obvious and that she was therefore reckless. The House of Lords refused leave to appeal.

Facts

C was a 14-year-old girl described as educationally backward and emotionally disturbed. After being disappointed that she could not stay overnight at a friend’s house, she spent the night wandering around rather than returning to her foster mother.

At about 5 a.m., tired and exhausted, she entered a large shed on an allotment. She found white spirit and matches inside, poured some of the spirit onto the ground and tried to set it alight. Although she expected that it might burn, she had not previously played with white spirit and did not appreciate how highly inflammable it was.

On her second attempt, the spirit caught fire and the whole shed was soon in flames. A milkman saw C running away and she was subsequently traced by the police.

C was prosecuted for arson under section 1(2) of the Criminal Damage Act 1971. It was not alleged that she had intended to burn down the shed. The prosecution case was instead that she had caused the damage recklessly.

The magistrates declined to convict. They considered that C could not properly be described as reckless where she would not have appreciated the serious risk of damage even if she had stopped to think about it, despite the fact that the risk would have been obvious to other people.

Issues

The issue was whether C could be regarded as having acted “recklessly” for the purposes of the Criminal Damage Act 1971 where the risk of damage would have been obvious to an ordinary person, but C herself did not appreciate it and, because of her limitations, would not have appreciated it even had she considered the matter.

More broadly, the case raised the consequences of the objective approach to recklessness adopted by the House of Lords in R v Caldwell [1982] AC 341: whether a defendant’s inability to recognise an obvious risk could prevent a finding of recklessness.

Arguments

The magistrates’ approach was that recklessness required more than the existence of a risk which would have been obvious to other people. C had not appreciated the serious risk created by her actions and, on the facts as they found them, would not have appreciated it even if she had turned her mind to the question.

The opposing approach, following Caldwell, was that where a defendant did something creating an obvious risk, the fact that the particular defendant failed to appreciate that risk did not prevent the conduct from being reckless.

The journal records that Robert Goff LJ regarded the resulting position with considerable reluctance and considered the outcome unjust, but regarded the Divisional Court as constrained by the recent decisions of the House of Lords.

Judgment

The Divisional Court held that the magistrates ought to have convicted C of recklessly damaging the shed.

Under the approach established by Caldwell, it was sufficient that C had done something creating a risk which would have been obvious to an ordinary person. Her own inability to appreciate that risk did not prevent a finding of recklessness.

The effect was that a defendant who failed to recognise an obvious danger because of her own intellectual limitations could nevertheless be treated as reckless. The test did not distinguish between a person who recognised a risk and deliberately ran it, a person who simply gave no thought to an obvious risk, and a person who was incapable of appreciating the risk in the way that an ordinary person would.

The Appeal Committee of the House of Lords subsequently refused C leave to appeal.

Implications

The decision demonstrated the potentially harsh consequences of the objective approach to recklessness established in Caldwell. A defendant could be convicted even though they did not appreciate the relevant risk and, because of their particular limitations, may not have been capable of appreciating it in the way that an ordinary person would.

The case therefore exposed a significant problem with the Caldwell test. It failed to distinguish between a defendant who consciously ran an obvious risk, one who simply gave no thought to it, and one who was genuinely unable to recognise the danger involved.

Elliott v C also highlighted an inconsistency in the criminal law. Offences expressed in terms of recklessness could impose liability by reference to an objectively obvious risk, while other offences continued to require proof of the defendant’s actual awareness of relevant facts or risks.

The case became a particularly striking illustration of the difficulties created by the Caldwell approach to recklessness, because C’s lack of appreciation of the risk was not the result of deliberate indifference: she simply did not understand the danger she was creating.

Verdict: The Divisional Court held that C should have been convicted of reckless criminal damage. Although she did not appreciate the serious risk of setting fire to the shed, the risk would have been obvious to an ordinary person and this was sufficient under the Caldwell test. The House of Lords refused leave to appeal.