R v Cunningham

Malice in a statute means intention or subjective recklessness, that is, foreseeing a risk and going on to take it.

Citation
[1957] 2 QB 396
Court
Court of Criminal Appeal
Year
1957
Subject
Criminal Law
Topic
Mens rea

Facts

Mr Cunningham tore a gas meter from the wall of a cellar in an empty house in order to steal the money inside it. Gas escaped and seeped through the wall into the house next door, where it partly asphyxiated an elderly woman, his future mother in law. He was charged with maliciously administering a noxious thing so as to endanger life, under section 23 of the Offences Against the Person Act 1861. The judge directed the jury that maliciously meant wickedly.

Legal principle

The Court of Criminal Appeal quashed the conviction. Byrne J said that malice in a statutory crime means either an actual intention to do the particular kind of harm that in fact was done, or recklessness as to whether such harm should occur or not, that is, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it. This is subjective recklessness, sometimes called Cunningham recklessness, and it remains the test for recklessness in criminal law.

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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.

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