R v G and R [2003] UKHL 50

Facts

• Two minors, G and R, caused serious property damage by setting a fire.
• They were convicted of criminal damage under the Criminal Damage Act 1971.
• The previous law, established by Caldwell, applied an objective test for recklessness, holding defendants liable even if they did not actually foresee the risk.
• The House of Lords reviewed whether the objective or subjective standard for recklessness should apply.

Issues

1. Whether the test for recklessness in criminal damage should be subjective (dependent on the defendant's actual awareness of risk) or objective (based on a reasonable person's viewpoint).
2. Whether the Criminal Damage Act 1971 allows for an objective standard of recklessness.
3. Whether it is fair to convict individuals who, due to youth or limited understanding, did not perceive a risk that a reasonable person would have noticed.

Decision

• The House of Lords overturned the minors' convictions, holding that recklessness requires proof the defendant was actually aware of the risk.
• The subjective standard for recklessness was restored, overruling the approach taken in Caldwell.
• It was emphasised that criminal liability should generally depend on the defendant’s actual state of mind, not on whether a reasonable person would have foreseen the risk.
• The wording of the Criminal Damage Act 1971 does not support an objective standard for recklessness.

Legal Principles

• Recklessness in criminal damage under the Criminal Damage Act 1971 requires subjective awareness of risk.
• Liability should be tied to the defendant’s actual knowledge and foresight, reaffirming individual responsibility in criminal law.
• Objective standards of recklessness are inappropriate where the accused lacks the capacity to appreciate risks that others might discern.
• The subjective test protects defendants, especially minors or those with limited understanding, from being unfairly convicted.

Conclusion

R v G and R restored the subjective test for recklessness in criminal damage, holding that liability depends on a defendant’s personal awareness of risk, and not on whether a reasonable person would have foreseen it, thereby supporting fairer outcomes, particularly for vulnerable defendants.