CALDWELL AND LAWRENCE: THE RETREAT FROM SUBJECTIVISM

Abstract

A Subjectivist holds that justice requires a 'subjective' definition of the various elements of mens rea; and that on a properly subjective definition of recklessness an agent is reckless as to a circumstance or consequence of his action only if he is aware that that circumstance might exist or that that consequence might ensue. By 1980 one could think that this doctrine had become an orthodoxy in English law: for it was by then accepted by most academic commentators, by the Law Commission and the Criminal Law Revision Committee,' by the Court of Appeal2 and perhaps by the House of Lords. Professor Smith thought in 1978 that 'subjectivism has triumphed'4 and Professor Williams had no doubt that in section 50 of the Criminal Law Act I977 'reckless driving' should mean 'knowingly taking risks in driving', since the courts had by then accepted 'the subjective meaning of recklessness'.5 The House of Lords' decision in Caldwell' (and, to a lesser degree, that in Lawrence7) shattered this confidence in the triumph of Subjectivism, for, on Lord Diplock's direction, a person is reckless as to an obvious risk created by his act if when he does the act he 'has not given any thought to the possibility of there being any such risk'. This spurns the Law Commission's views about the proper meaning of recklessness; it may also defeat the intention of Parliament, if we can identify that intention with the Law Commission's recommendations. Is it then one more example of the House of Lords' 'dismal record in criminal cases',9 marking 'the most serious injury inflicted on the developing criminal law since