RECKLESSNESS RESTORED

Two boys, aged 11 and 12, go camping one night without their parents' consent. In the early hours of the morning they wander into a supermarket car park, set fire to some newspapers which they find there, bundle these under a pair of plastic wheelie-bins against the wall, and leave. A million pounds of fire later, they are charged with arson of the supermarket and of buildings standing nearby. Such in a nutshell are the simple facts of 'G and another' [2003] UKHL 50, [2003] 3 W.L.R. 1060. The law is no less simple. There was no question of the boys having intended to burn down the buildings, and it was accepted that neither foresaw any risk of this (para. [2]). But the risk was one which would have been obvious to a reasonable person-a reasonable adult person, that is-and, impeccably directed along the lines laid down in Caldwell [1982] A.C. 341 that the failure to give thought to such an obvious risk was sufficient 'mens rea' for the offence, the jury duly convicted them. The Court of Appeal, bound by 'Caldwell', upheld the convictions. The House of Lords was not so constrained and reversed them. Departing from 'Caldwell', they reinstated the law as it was thought to stand before 1982, in line with the test associated with 'Cunningham' [1957] 2 Q.B. 396: in offences under the Criminal Damage Act 1971 a person will be ''reckless'' only if he or she foresees a risk and nonetheless goes on to take it unreasonably.