R v Cunningham

[1957] 2 QB 396, (1957) 41 Crim. App. 155

 FACT
● The defendant detached a gas meter so as to loot the money inside.
S
● The gas meter was linked to the house nearby, where his to-be mother-in-law (the
victim) resided.

● The victim was asleep in her house when the defendant committed the act.

● The detachment of the meter led to gas seeping into the house, and as a result, she
suffered poisoning by the gas.

● The defendant was prosecuted under s. 23 of the Offences Against the Person Act
1861 for the unlawful and malicious endangerment of life .
 DECISION AT
• TRIAL
The trial judge directed the jury to interpret the word ‘maliciously’ as ‘generic
wickedness’ – doing “something which he has no business to do and perfectly well
knows it”.

• So if an accused acted wickedly or immorally, it means that he has also acted

maliciously.

• Since the defendant had acted wickedly in general by looting the money in the
meter, the jury concluded that he possessed the mens rea for the crime under s. 23 of
the Offences Against the Person Act 1861.

• The jury convicted the defendant but he appealed against this decision.
 ISSUES AT
•
APPEAL
The defendant argued that the jury had been misdirected by the judge with regards to
the description of malice. He further asserted that he lacked the mens rea to
endanger someone’s life.

• This raised the question as to what the right definition of malice was.

• The more significant issue was what constitutes of intention as far as the Offences
Against the Person Act 1861 is concerned.
 THE COURT OF APPEAL’S
• DECISION
The defendant’s conviction was overturned by the Court of Appeal on the basis that
the interpretation of ‘malice’ as ’wicked’ was inaccurate.

• The correct interpretation of ‘malice’ in statutory crimes is ‘foresight of

consequence’. This means that the defendant either had intention or was reckless as
to causing a particular harm. Recklessness means that the defendant foresaw the risk
of a particular harm that could result from his conduct, and he willfully ignored that
risk and did the act anyway. This is known as Cunningham recklessness.

• Therefore, the defendant was not reckless because he did not actually realize that
there was a chance of the gas leaking into someone’s house and endangering their
life.
 THE SIGNIFICANCE OF
CUNNINGHAM
Cunningham was the first case where recklessness was properly defined as a mental
element. It established the traditional definition of recklessness, which states that “the
accused has foreseen that the particular kind of harm might be done and yet has gone on
to take the risk of it” – Professor Kenny.

Cunningham introduced the concept of subjective recklessness, which is the current test
for recklessness in England and Wales. Subjective means that the defendant himself should
have realized the threat of a specific harm resulting from his actions.

A subjective test of recklessness is better than an objective test because it would be unfair
and unjust if a defendant was convicted for taking a risk that he did not know about, even
though that risk could be foreseen by a reasonable person.
 SOCIAL AND
PRACTICAL
The burden of proof isCONSEQUENCES
on the prosecution to prove that the defendant was reckless. It
may be impossible and impractical to prove the defendant’s actual mind set when he
committed the crime.

Guilty defendants may be able to escape criminal liability by arguing that they did not
realize the possibility of a risk, even if that risk was an obvious one. This was the exact
situation in MPC v Caldwell [1982] AC 341, where the defendant willfully got
intoxicated and started a fire in a hotel. His argument was that he was so drunk that he
did not realize that there were people inside the hotel.
 SUBJECTIVE VS
OBJECTIVE
In 1981, The House of Lords constructed an objective test of recklessness in MPC v Caldwell .
This meant that a defendant would be guilty if he failed to realize an obvious risk that could be
foreseeable by a reasonable person. This prevents criminals (like the defendant in Caldwell itself)
from escaping liability by arguing that they did not think about the risk.

This purely objective test was heavily criticized for causing harsh and unjust outcomes, as in
Elliot v C [1983] 2 All ER 1005, where a 14-year-old was convicted for igniting a shed even
though she lacked the mental capacity to realize that her actions could cause harm.

Ultimately, the Caldwell test was abolished in 2004 by the House of Lords in R v G [2004] 1 AC
1034. They affirmed the supremacy of Cunningham recklessness, and stated that recklessness
should always be subjective.
 MODIFICATION OF
CUNNINGHAM RECKLESSNESS
In R v G, the House of Lords accepted the Draft Criminal Code Bill’s definition of
recklessness, which altered the one in Cunningham.

1.The Draft Code’s definition takes into account the circumstances in which a risk is taken.
Cunningham’s test did not consider circumstances.

2. The Draft Code includes an extra restriction that the accused must have taken an
unreasonable risk. Whether the risk taking is reasonable or not depends on things like the
seriousness of the risk and the social importance of the risk taking.
 A FUTURE FOR
CUNNINGHAM RECKLESSNESS?
It is very probable that the Draft Code’s definition of recklessness will be the only
definition that will be applied in the future. The original phrasing of Cunningham is
unlikely to be used.

This does not mean that the Cunningham definition is completely irrelevant – it has
only been modified and upgraded.

Cunningham is still considered as a very important case in criminal law because it

launched the conventional definition of subjective recklessness.