he surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world. With the benefit of hindsight the verdict must be that the rule laid down by the majority in Caldwell failed this test... Experience suggests that in Caldwell the law took a wrong turn.' Lord Steyn in R v G 
introduction should set out the ambit of your essay. You should explain that 'recklessness', which is the mens rea for a number of basic intent crimes, is the taking of an unjustifiable risk. For a number of years, following the House of Lords' ruling in Caldwell  a different test of recklessness was applied to the offence of criminal damage to that applied to other offences of recklessness.
Set out briefly the Caldwell test for recklessness and explain what changes the House of Lords made in R v G. Note that the issue in the question arises in relation to the second limb of the Caldwell test. The Caldwell test attracted much criticism during the 21 years in which it represented the law. Nonetheless, it also had its supporters who would not agree with Lord Steyn that the law 'took a wrong turn'. You should now critically analyse the arguments which have been made both for and against the appropriateness of the Caldwell test for recklessness, some of which are set out briefly below. (You might now re-read Lord Bingham's speech from R v G, which is in your study pack, where all of these arguments are considered in more detail.) At the same time, consider and, where appropriate, address Lord Steyn's comments about the test of a legal rule in the context of 'logicians' and 'the real world'. Consider the fairness or otherwise of the test in the particular context of the cases of Elliott v C , R v Stephen (Malcolm R)  and the facts of the case of R v G itself. Arguments for and against the Caldwell test for recklessness The evolution of the Criminal Damage Act 1971: Did the House of Lords in Caldwell merely misconstrue s.1 of that Act? Consider the Law Commission Working Paper where the decision in Cunningham  was cited with approval. Lord Diplock said in Caldwell that he was simply applying the natural dictionary meaning of the word 'reckless' which imports the state of mind of carelessness '...regardless or heedless of the possible harmful consequences of one's acts'. Inadvertence/advertence: Lord Diplock in Caldwell was of the view that blameworthiness in relation to conduct should not be limited to those situations where a defendant realises that a prohibited consequence could occur. He thought that inadvertence was as blameworthy as advertence. What were his reasons for this? In Caldwell, the House of Lords was considering the mental element of a person who was intoxicated and claimed he did not foresee a risk of endangerment to life as the result of his criminal damage. What, however, of the person who either lacks the capacity to foresee a risk or for reasons which are not, in themselves, blameworthy fails to appreciate such a risk? Consider the cases of Elliott, Stephen (Malcolm R) and G. Is it fair that people should be deemed to be blameworthy because of inadequacies over which they have no control? Consider the pre-Caldwell decision in the case of Stephenson . Alternatively, could it be argued that one of the functions of the law is setting standards of behaviour and protecting the public and that these aims should take precedence over the blameworthiness of an individual? The modern development of mens rea tends towards a subjective assessment of a defendant's state of mind but the 'objective' element of Caldwell recklessness does not reflect the state of mind of the defendant who has given no thought to a risk. Lord Diplock expressed the view that the application of 'subjective' recklessness may not always be practicable as it requires a meticulous analysis of a defendant's state of mind and could make it difficult for a jury to be sure of a defendant's guilty beyond reasonable doubt. Nevertheless, despite the need for a 'meticulous analysis' of a defendant's state of mind for other offences of recklessness and, indeed, for crimes requiring proof of intention there is no evidence that juries have particular difficulties with 'subjective' tests resulting in significant numbers of unjust acquittals. There was considerable 'shopfloor' criticism of the decision in Caldwell which Lord Bingham thought should not be ignored. Why should academic and judicial criticism influence the House of Lords? Deal directly with the issue raised in the question, supporting your conclusion with some of the arguments outlined in your essay.