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Updated: May 16, 2023

Cunningham [1957] 2 QB 396 (CA)

Facts: Cunningham broke apart a gas metre in order to take the money that was contained inside it. Because of his actions, a gas leak occurred, which ultimately led to the poisoning of a neighbour. He was accused of breaking section 23 of the Offences against the Person Act of 1861, which made it illegal to unlawfully and maliciously administer a toxic chemical to another person. This led to his being charged with the offence.

In the first trial, Cunningham was found guilty of the crime of unlawfully and maliciously causing the victim to consume a poisonous object with the intent to put her life in danger. This act is a violation of section 23 of the Offenses Against the Person Act from 1861, which was the law that was in effect at the time the crime was committed. The judge explained to the jury that "maliciously" was synonymous with "wickedly," and that "wickedly" meant "doing something that he has no business to do and fully understands it."


Ratio: It was held that the term ‘‘maliciously’ in an offence assumes foresight of the consequence. Hence, while dealing with offences involving ‘malice’ it is not enough that the risk would have been obvious to the defendant if he had reconsidered his decision. He must know the existence of ‘risk’ and must consciously take it. The prosecution will have to prove that the defendant had a particular state of mind while committing the offence (subjective) as opposed to considering the state of mind of any reasonable person (objective).

Lord Hailsham said:

“Nor am I persuaded that a reformulation of murder so as to confine the mens rea to an intention to endanger life instead of an intention to do really serious bodily harm would either improve the clarity of the law or facilitate the task of juries in finding the facts”. The dissenting view came from Lord Edmund-Davies who said “I presently favour is that there should be no conviction for murder unless an intent to kill is established.. I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm”.

Yet he even admits the reasons why the choice is the right one...

“But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill…Resolution of that conflict cannot, in my judgment, be a matter for your Lordships' House alone. It is a task for none other than Parliament, as the constitutional organ best fitted to weigh the relevant and opposing factors.”

Caldwell Recklessness

A related objective form of recklessness was established for criminal damage by the House of Lords in R v Caldwell [1982 AC 341]. This objective type of recklessness was added to this subjective type of recklessness for a period of time. At one point in time, the term "Caldwell recklessness," as it came to be called, was used to refer to a number of other crimes, including manslaughter. After some time, it was reduced to acts of criminal harm. Nonetheless, in 2003 the Court of Lords made yet another important alteration to recklessness in Cunningham for the purpose of criminal damage. This change is currently outlined in R v. G and Others [2003] UKHL 50.


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