Chief Constable of Avon and Somerset v Shimmen
Citations: (1987) 84 Cr App R 7.
The defendant and a group of his friends were fooling around outside of a shop. The defendant began to flail his limbs about without making contact with anyone. A friend warned him he might hurt someone, but the defendant responded that he was under control. He then made a martial arts kick at the shop window, making contact and breaking the glass.
The defendant was charged with criminal damage contrary to s.1(1) of the Criminal Damage Act 1971. Everyone agreed that the defendant did not intend to break the glass, but the prosecutor argued that he was reckless. This satisfied the mens rea of the offence. The defendant argued that he was not reckless because he had been satisfied at the time that he had enough martial arts skill to avoid making contact with the window. At trial, the magistrates believed the defendant and concluded that this meant that he was not reckless. The prosecution appealed.
- Can a defendant who appreciates a risk but satisfies themselves that they can avoid it be classed as ‘reckless’?
The High Court allowed the appeal, and remitted the case to the magistrates with a direction to convict. The defendant was reckless.
This Case is Authority For…
A defendant who recognises a risk exists if he does not take precautions is reckless even if he believes he has taken those precautions and thereby minimised or eliminated the risk.
Taylor J suggested that there might be a lacuna in the concept of recklessness where a defendant actively considers whether there is a risk, but mistakenly concludes there is none. This, however, he thought was distinct from the situation where the defendant perceives the risk but thinks he can avoid it.