Case No 2001/02347/W4
2001/02384/W4
Neutral Citation Number: [2002] EWCA Crim 1992
IN THE COURT OF APPEAL 
(CRIMINAL DIVISION)

Royal Courts of Justice
Strand
London
WC2A 2LL

Wednesday, 17th July 2002

BEFORE

LORD JUSTICE DYSON
MR JUSTICE SILBER

and

HIS HONOUR JUDGE BEAUMONT QC

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REGINA

v

AARON ROY GEMMELL
STEVEN MICHAEL RICHARDS

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 0207 421 4040,  Fax No:  0207 831 8838
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Mr A Newman QC & Miss I Ascherson appeared on behalf of the appellant Richards
Mr A Jeffries appeared on behalf of the appellant Gemmell
Mr R Whitham & Mr B Hillman appeared on behalf of the Crown
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Judgment
As Approved by the Court
Crown Copyright ©

Lord Justice Dyson:

1.	On 23 March 2001 in the Crown Court at Aylesbury before His Honour Judge Maher and a jury, the appellants were convicted of a single offence of arson, causing damage to property being reckless as to whether such property would be damaged, contrary to section 1(1) and (3) of the Criminal Damage Act 1971 (“the 1971 Act”).  On 20 April, they were each sentenced to a one year supervision order.  At the time of the offences, Aaron Gemmell was 11 years of age, and Steven Richards 12.  They appeal against their convictions with the leave of the single judge.  

2.	In R v Caldwell [1982] AC 341, Lord Diplock (with whom Lords Keith and Roskill agreed) said that a person charged with an offence under section 1(1) of the 1971 Act is “reckless as to whether any such property would be destroyed or damaged” if “(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it”.  We shall refer to this as “the Caldwell test”.  Earlier in his speech, Lord Diplock had made it clear that his exposition of the requirements of recklessness was made by reference to the “ordinary prudent individual”.  The defendant in that case was an adult. 

3.	At the start of the trial the judge ruled that he had to direct the jury to apply the Caldwell test, and that whether there was an obvious risk of the property being damaged was to be assessed by reference to the reasonable man, and not a person endowed with the characteristics of the defendants.  The judge summed up in accordance with this ruling.  He said that “the ordinary reasonable bystander is an adult….He has got in his mind that stock of everyday information which one acquires in the process of growing up” (p 6H).  A little later (p 7C) he said: “no allowance is made by the law for the youth of these boys or their lack of maturity or their own inability, if such you find it to be, to assess what was going on”.  

4.	The appeal raises one issue only, and it is an important issue.  It is argued on behalf of both appellants that the judge was wrong to rule that the Caldwell test was the correct test to apply.  He should have held that it (a) does not apply to children; and/or (b) if it would otherwise apply to children, it is incompatible with Article 6 of the European Convention on Human Rights (“ECHR”).  He should, therefore, have held that, at least in the case of a defendant who is a young child, Article 6 requires it to be a necessary condition of recklessness that the relevant risk be obvious to the particular defendant, and not merely to the ordinary reasonable bystander.  Before we examine the arguments in more detail, we should briefly set out the facts.

5.	On the night of 21 August 2000, the appellants were out camping.  At about 3.45 am on 22 August, they got into the yard at the back of the Co-op shop in Newport Pagnell where they opened up bundles of newspapers.  They set some of them alight, and threw the burning newspapers under a large wheelie-bin where they left them to burn.  The bin was set alight, and the fire spread to the shop.  The shop and some adjoining buildings caught fire.  Approximately £1 million damage was caused.  At their first interview, the boys denied any involvement.  In their second interview, they admitted what had happened, and said that they thought that the lit newspapers would burn themselves out on the concrete floor.  They said that it never crossed their minds that there was a risk that the fire would spread to the building.

The authorities

6.	We start with an examination of the relevant authorities.  First, Caldwell itself.  Lord Diplock, with whom Lords Keith and Roskill agreed, gave the leading speech.  At page 353H he said:
“My Lords, I see no warrant for making any such assumption in an Act whose declared purpose is to revise the then existing law as to offences of damage to property, not to perpetuate it. “Reckless” as used in the new statutory definition of the mens rea of these offences is an ordinary English word. It had not by 1971 become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech – a meaning which surely includes  not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was.
If one is attaching labels, the latter state of mind is neither more nor less “subjective” than the first. But the label solves nothing. It is a statement of the obvious; mens rea is, by definition, a state of mind of the accused himself at the time he did the physical act that constitutes the actus reus of the offence; it cannot be the mental state of some non-existent, hypothetical person.
Nevertheless, to decide whether someone has been “reckless” as to whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as “reckless” in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual upon due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as “reckless” in its ordinary sense if, having considered the risk, he decided to ignore it.”
 
7.	A little later, appears the passage that we have already set out at para 2 above.

8.	Caldwell was concerned with an offence under section 1(1) of the 1971 Act.  In R v Lawrence [1982] AC 510, the House of Lords had to consider recklessness for the purpose of an offence of reckless driving.  At page 526E, Lord Diplock dealt with the question of recklessness and said:
“I turn now to the mens rea. My task is greatly simplified by what has already been said about the concept of recklessness in criminal law in R v Caldwell [1982] AC 341 Warning was there given against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being either “subjective” or “objective.” Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting “recklessly” if before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such a risk, he nevertheless goes on to do it.

In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: 
First, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and
Second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it. It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.

If satisfied that an obvious and serious risk was created by the manner of the defendant’s driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference.”

9.	All subsequent attempts in cases under section 1(1) of the 1971 Act to distinguish Caldwell, and to persuade the court not to apply the Caldwell test have failed.  Thus, in Elliott v C 77 Cr App R 103, the Divisional Court applied the test to the case of a 14 year old girl who was in a remedial class at school. The court held that the phrase “creates an obvious risk” means that the risk must have been obvious to a reasonably prudent person, and not necessarily to the defendant.  The justices had found that the risk that the fire that had been started by the defendant would cause damage would not have been obvious “having regard to the age and understanding of the defendant, her lack of experience of dealing with inflammable spirit, and the fact that she must have been tired and exhausted at the time” (p 117).  They therefore dismissed the information. The Divisional Court allowed the prosecutor’s appeal on the ground that the justices had failed to apply the Caldwell test.  Robert Goff LJ expressed his unhappiness about this result.  Nevertheless, at page 118 he said: 
“Here again, it would be unrealistic if I were to disguise the fact that I am well aware that the statement of principle by Lord Diplock in R v Caldwell (supra) has been the subject of comment, much of it critical, in articles written by jurists; and that I have studied certain of these articles with interest. I find it striking that the justices, in reaching their conclusion in the present case, have done so (no doubt in response to an argument advanced on the defendant’s behalf) by imposing upon Lord Diplock’s statement of principle a qualification similar to one considered by Professor Glanville Williams in his article “Recklessness Redefined” in [1981] CLJ 252, 270-271. This  is that a defendant should only be regarded as having acted recklessly by virtue of his failure to give any thought to an obvious risk that property would be destroyed or damaged, where such risk would have been obvious  to him if he had given any thought to the matter. However, having studied Lord Diplock’s speech, I do not think it would be consistent with his reasoning to impose any such qualification. I say that not only because this qualification does not appear in terms in his conclusion which I have already quoted, but also because, when considering earlier in his speech Professor Kenny’s definition of recklessness (which he rejected as being too narrow), Lord Diplock expressly adverted to the fact that that definition presupposed that “if thought were given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences.”
It seems to me that, having expressly considered that element in Professor Kenny’s test, and having (as I think) plainly decided to omit it from his own formulation of  the concept of recklessness, it would not now be legitimate for an inferior court, in a case under this particular subsection, to impose a qualification which had so been rejected by Lord Diplock himself. It follows that for that reason alone I do not feel able to uphold the reasoning of the magistrates in the present case”

10.	The case of R v Stephen Malcolm R 79 App R 334 concerned a defendant who was 15 years of age.  It was accepted on his behalf that Caldwell prevented the court from asking the question whether the defendant was aware of the risk.  But it was argued that the court could ask the question whether a “person of the age of the defendant and with his characteristics which might be relevant to his ability to foresee the risk, would have appreciated it” (p 340).  The judgment of the court was given by Ackner LJ.  He held that it was not open to this court to accept this suggested modified departure from the full rigour of the Caldwell test.  He did not think that this “media via was for one moment in the mind of Lord Diplock”.  Ackner LJ did not disguise his regret in reaching this conclusion.

11.	Another attempt to distinguish Caldwell was made in R v Coles [1995] 1 Cr App R 157.  But before we consider that case, we need to refer to the House of Lords decision in R v Reid [1992] 1 WLR 793.  This was a reckless driving case.  The summing up had contained a direction using the very words stated by Lord Diplock in Lawrence (p 526H) as being “an appropriate instruction” on what is meant by driving recklessly.  It was submitted that the definition of recklessness in Lawrence was incorrect, and that their Lordships should depart from it.  This they refused to do.  They endorsed the reasoning in Caldwell and Lawrence that responsibility in the criminal law should extend beyond those who appreciate the risks they run to those who culpably fail to do so.  But there are passages in the speeches on which Mr Newman relies as indicating a possible softening of Lord Diplock’s formulation in Lawrence.  In particular, Lord Keith said at page 796D:
“The substance of Lord Diplock’s formulation of a specimen jury direction is accordingly apt, in my opinion, to cover the generality of cases. But I do not rule out that in certain cases there may be special circumstances which require it to be modified or added to, for example where the driver acted under some understandable and excusable mistake or where his capacity to appreciate risks was adversely affected by some condition not involving fault on his part. There may also be cases where the driver acted as he did in a sudden dilemma created by the actions of others. The specific certified question as to whether the jury should always be directed in the ipsissma verba of Lord Diplock’s formulation I would answer in the negative. In some cases when the only relevant issue is one of disputed fact it may not be necessary to use it all. In others it may require to be modified or adapted to suit the circumstances of the case.”

12.	We would also refer to page 813E in the speech of Lord Goff of Chieveley and page 819G in the speech of Lord Browne-Wilkinson.  

13.	But it is important to emphasise that these are no more than dicta which, as was said by Stewart Field and Mervyn Lynn in their article Capacity, recklessness and the House of Lords [1993] Crim LR 127, are “ a possible signpost to future refinement of the test for Caldwell/Lawrence recklessness”.  Moreover, various of the speeches indicated that what was said about recklessness in Reid was directed only at the offence of reckless driving. Thus Lord Ackner at page 805G-H.  Lord Goff (p 807D) said that the case was not directly concerned with the meaning of the word “reckless” in section 1(1) of the 1971 Act. Lord Browne-Wilkinson (p 816H-817D) said that he did not accept that the constituent elements of recklessness must be the same in all statutes. He identified three factors which could lead to the conclusion that recklessness in the offence of reckless driving did not bear the same meaning as recklessness in section 1 of the 1971 Act.  

14.	We can now return to Coles.   The appellant in that case was 15 years of age.  The defence wished to call expert evidence from a psychologist on the capacity of the appellant to foresee the risks involved in his actions, and submitted that the test of recklessness should be subjective.  The trial judge refused to allow the evidence and rejected the submission as to the correct test for recklessness.  The defendant pleaded guilty and appealed to this court.  The appeal was dismissed.  Hobhouse LJ gave the judgment of the court.  He reviewed the authorities, including Reid.  He said that the request by the defence to substitute in the first leg of the Caldwell direction “a defendant aged 11 with low intellectual functioning” for the usual reference to the “reasonable prudent man” was “misconceived”.  It showed confusion between actus reus and mens rea (p 163D).  The first leg provided an objective criterion which the defendant’s act must satisfy, and his mental state was irrelevant on that point.  The appellant then sought to argue that the facts required a qualification to the second leg of the Caldwell direction so as to require the jury to consider the culpability of the particular defendant having regard to his capacity to foresee the relevant risk (p 163E).  Hobhouse LJ accepted that proof of an obvious risk was not necessarily proof of recklessness: the jury must listen to the defendant’s explanations, which might show that he did not fall within either of the two state of mind in the second leg of the Caldwell direction (p 165).  The matter was not, however, free of authority.  R v Miller [1983]  AC 161 was authority for the view that for proof of recklessness, there is no need to prove any actual appreciation on the part of the defendant of the relevant risk (p 166).  The qualification suggested to the Caldwell test was the same as had been rejected in Elliott v C and Stephen Malcolm R.  As regards Reid, Hobhouse LJ noted that in that case a further attempt had been made, in the context of reckless driving, to depart from the formulations of Lord Diplock in Caldwell and Lawrence, and said:
“The essence of the argument being advanced was the same as the underlying argument advanced before us – that it is inconsistent with a proper approach to criminal responsibility to exclude a subjective qualification of the Caldwell formulation. The House of Lords in reasoned judgments rejected those arguments. Even if it were open to this court to do so, it is not appropriate that this Court should accede to an invitation to reformulate the law of recklessness when it has so recently been confirmed, after full consideration, by a decision of the House of Lords.”

A consideration of the problem without reference to Article 6 of the ECHR

15.	Mr Newman QC submits as follows.  The Caldwell test is not binding on us in this case because the facts here are materially different from the facts in Caldwell.   The ratio of Caldwell is that the test propounded by Lord Diplock only applies to defendants who are adults who have no relevant disability.  That is why he referred repeatedly in his speech to the “ordinary prudent individual”.  He did not have in mind young children, who although in general terms are old enough to have criminal responsibility, may not be of sufficient age to be able to have the understanding and foresight of an adult.  Nor did he have in mind persons, of whatever age, who suffer from some relevant mental or physical disability.  In short, the House of Lords only had to consider the case of the ordinary prudent individual, and the application of the Caldwell test is confined to such persons.  

16.	The central question that arises is: to whom must the risk mentioned in the first leg of the test be “obvious”?  Mr Newman submits that it must be obvious either to the defendant in the particular case, or to a reasonably prudent person endowed with the age and other characteristics of the defendant that are relevant to his or her being able appreciate the existence of the risk.  He says that it is irrational to take what is obvious to a reasonably prudent adult as the yardstick by which to measure what is obvious to a young child or a person with relevant disabilities.  Lord Diplock could not have intended this.  

17.	Mr Newman makes the point that the Caldwell test has been subjected to frequent and sustained criticism, particularly in academic writings.  One example will suffice.  In the current (10th) edition of Smith and Hogan’s Criminal Law, at page 81 the authors say: 
“The test works harshly in these cases of young people. In the case of adults, it will do so in the case of those who lack the capacities of the ordinary prudent person. In Stephenson a tramp sheltered in a hollow in a haystack. Feeling cold, he lit a fire in the hollow. The haystack was destroyed. Any reasonable person would have been aware of the risk but Stephenson was suffering from schizophrenia and may not have been aware of it. Because this was not clearly left to the jury, the court – pre-Caldwell- quashed his conviction. Even if he had stopped to think it is possible that, because of his condition, he might not have realised that there was a risk of damage. Stephenson appears to be overruled by Caldwell. How far are we to go in ignoring abnormalities? Is a blind man to be held to have recklessly damaged property because he was unaware of a risk which would have been obvious to a sighted person? And what about temporary handicaps – the person who strikes a match, being unaware because of his heavy cold, that the premises reek with petrol fumes? Caldwell, as interpreted in Elliott v C and R, appears to be a slippery slope to intolerable injustice with no obvious exit.
If it would have appeared to the reasonably prudent person that there was an obvious risk, it is immaterial that a person with expert knowledge not possessed by the defendant would have known that there was no, or no serious, risk. A person may act, reckless as to whether life is endangered, without there being in fact any danger to life.”

18.	We readily acknowledge the force of the criticisms that have been made of the Caldwell test.  They were adverted to in Elliott v C and Stephen Malcolm R..  The Caldwell test has been criticised and has not been applied in a number of Commonwealth jurisdictions.  All this we accept.  The question for us is whether it open to us to hold that the Caldwell test should not have been applied in this case.  We are in no doubt that it is not. 

19.	First, it seems to us that in Caldwell, Lord Diplock was propounding a test at a high level of generalisation, which he intended to apply at least to all cases under section 1 of the 1971 Act.   He considered the definition of recklessness given by Professor Kenny in the first edition of his Outlines of Criminal Law in the context of offences which are committed  “maliciously” and which was approved in R v Cunningham [1957]  2 QB 396, viz:
“In any statutory definition of a crime, malice must be taken ... as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).”

20.	This test unquestionably does focus on the state of mind of the particular defendant who is before the court.  But Lord Diplock rejected this as the test to be applied to recklessness in section 1(1) of the 1971 Act.  The passage which we have already quoted at paragraph 6 above refers three times to the “ordinary prudent individual”.  Although Lord Diplock criticised the use of the labels “subjective” and “objective”, it is clear that he opted for what it is convenient to call the “objective” test.  There is nothing in his speech to indicate that he considered that any qualities or characteristics were relevant other than that the person should be ordinarily prudent.  A number of characteristics may affect a person’s ability to see a risk for what it is: he may be too young, or too old; he may be of poor intelligence or suffer from some relevant psychological condition; or from physical disabilities which impair his ability to appreciate the existence of a risk.  If Lord Diplock had considered that any of these factors was relevant to the obviousness of the risk, he would have said so.  He would not have repeatedly referred to the ordinary prudent individual.  
21.	But secondly, even if we entertained some doubt as to the intended scope of the Caldwell test, we are in any event bound by previous authority to reject Mr Newman’s submissions.  It is true that the decision in Elliott v C is not binding on this court.  But the carefully considered judgments of Robert Goff LJ and Glidewell J are of great persuasive force.  We bear in mind that Robert Goff LJ said (p 116-117) that he allowed the appeal simply because he felt constrained to do so by Caldwell, although the result was one about which he was unhappy.  The decisions in Stephen Malcolm R and Coles are binding on this court.  Mr Newman submits that these decisions are simply wrong and should not be followed.  

22.	We do not feel able to accept this submission.  It seems to us that Professor Elliott put the matter accurately in his article “Endangering life by destroying or damaging property”[1997] Crim LR 382, 387:
“Thus, in the absence of further recourse to the House of Lords, it is still the law that a defendant charged with criminal damage who gives no thought to an obvious risk is prima facie reckless. He is allowed to explain his failure to give thought, which may in rare cases be held to be non-culpable, but evidence of lack of capacity to see the risk will not prevent a finding of recklessness. The objective criterion which his conduct must satisfy is that it suggests to an ordinary prudent individual the possibility of a non-negligible risk of the relevant harm occurring.”

We should add that we do not consider that Reid requires us to arrive at a different result.  First, Reid was analysed in Coles with the result to which we have earlier referred.  We are bound by Coles, and that is sufficient reason for saying that Reid does not advance Mr Newman’s argument.  Secondly, in Reid their Lordships made it clear that they were dealing with reckless driving, and not with section 1(1) of the 1971 Act.  Thirdly, both Elliott v C and Stephen Malcolm R were cited in Reid.  No mention is made of either decision in any of the speeches in Reid.  If the House of Lords considered that those decisions were wrong, it is most surprising that they did not say so.  

23.	In our judgment, it is for the House of Lords to decide whether the time has come to revisit the Caldwell test.  Although we see great force in the criticisms of the first leg of the Caldwell test that have been made, it is not open to this court to depart from it.  Accordingly, we reject the first route by which Mr Newman seeks to challenge the convictions in this case.  

Article 6 of the ECHR
24.	Article 6 provides: 
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the prottection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:
(a)	to be informed promptly, in a language he understands and in detail, of the nature and cause of the accusation against him;
(b)	to have adequate time and facilities for the preparation of his defence;
(c)	to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d)	to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e)	to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

25.	Mr Newman advances the following propositions: (a) to judge the moral and legal culpability of a child by reference to the understanding and life experience of an adult is irrational and, therefore, unfair; (b) the Caldwell test is disproportionately harsh given the serious consequences that can potentially flow from a conviction of an offence under section 1(1) of the 1971 Act (detention for life); and (c) the Caldwell test effectively renders an offence under section 1(1) an offence of strict liability in the case of a child, because a child is incapable of advancing a defence based on his or her immaturity and lack of understanding. 

26.	He contends that Article 6 is not restricted to ensuring procedural fairness.  In any event, it is not helpful to classify provisions as procedural on the one hand and substantive on the other hand.  Whether a provision is substantive or procedural in form is often a “matter of chance”, since it depends on how the national legislature has chosen to frame the provision.  Mr Newman illustrates his point by the following example: “if, instead of containing the word “reckless” in the offence-creating provision, there had been a separate provision of law which stated: “as regards criminal trials, children are presumed to have the same mental development and experience in life as adults” such provision would have been labelled “procedural” rather than “substantive””.  The ECtHR does not attach importance to such labelling, but looks at “the proceedings as a whole” and asks whether they comply with Article 6: see Barbera, Messegue and Jabardo v Spain 11 EHRR 360 at para 68.

27.	In our judgment, Mr Newman’s submissions are misconceived.  We fully accept that Article 6 should be given a broad and purposive interpretation.  But it seems to us that it is clear, even without the assistance of Strasbourg jurisprudence, that on any natural reading of it, Article 6 is not concerned with the fairness of provisions of substantive law.  It contains three distinct elements: access to a court; provisions regarding the organisation and constitution of the court; and minimum standards of fairness concerning the conduct of proceedings.  Mr Newman argues that the phrase “a fair hearing”, which appears in the body of the article, is sufficient to include the fairness of substantive law.  But if the article is read as a whole, we have no doubt that this phrase does not bear the weight for which Mr Newman contends.  

28.	The distinction between procedural and substantive law is clear and important.  It is not a matter of mere “labelling”.  A provision which defines the mental element or mens rea that is a necessary element of an offence is plainly not a matter of procedure.  It is a matter of substantive law since it is part of the very definition of what constitutes the offence.  There is a difference in kind between the requirement for, and definition of, a mental element of an offence (substantive), and the means by which the existence of such a mental element may be proved (procedural).  

29.	It is a matter for the Contracting State to choose how to define the essential elements of an offence.  Thus, it has been established that an offence of strict liability, as opposed to one requiring a mental element, does not violate Article 6(2).  In Salabiaku v France 13 EHRR 379 para 27, the ECtHR said: 
“27. As the Government and the Commission have pointed out, in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States.”

30.	The ECtHR has made it clear on a number of occasions that Article 6 is not concerned with the fairness of substantive law.  The case of Z and others v United Kingdom (2002) 34 EHRR is a recent and important example.  The applicants’ claims against a local authority for negligently failing to protect them against abuse at the hands of their parents had been struck out in the United Kingdom courts as disclosing no cause of action.  They complained inter alia that there had been a breach of Article 6 because they had been denied access to a court.  It was held by the ECtHR that there had been no breach.  The court recognised the distinction between substantive law (which is not a matter for Article 6) and procedural law (which is).  Thus at para 87 they said:
“The Court recalls its constant case law to the effect that “Article 6(1) extends only to contestations (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States”. It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised.”

31.	Later, at para 98 they said: 
“As it has recalled above in paragraph 87 it is a principle of Convention case law that Article 6 does not in itself guarantee any particular content for civil rights and obligations in national law, although other Articles such as those protecting the right  to respect for family life and the right to property may do so.”

32.	Finally, at para 100, they said: 
“.....
In the present case, the Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to the court of the kind contemplated in the Ashingdane judgment.

101. The applicants may not therefore claim that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Once the House of Lords had ruled on the arguable legal issues that brought into play the applicability of Article 6(1) of the Convention, the applicants could no longer claim any entitlement under Article 6(1) to obtain any hearing concerning the facts. As pointed out above, such a hearing would have served no purpose, unless a duty of care in negligence had been held to exist in their case. It is not for this Court to find that this should have been the outcome of the striking out proceedings since this would effectively involve substituting its own views as to the proper interpretation and content of domestic law.”

33.	The position is quite clear.  So far as Article 6 is concerned, the fairness of the provisions of the substantive law of the Contracting States is not a matter for investigation.  The content and interpretation of domestic substantive law is not engaged by Article 6.  It may, however, be engaged by other articles of the ECHR.  Thus, for example, if the penalty for an offence under section 1(1) of the 1971 Act were fixed at the current maximum of life imprisonment, then there would be an overwhelming case for saying that it amounted to “inhuman or degrading treatment punishment” contrary to Article 3.  

34.	On the other hand, the means by which a person’s substantive civil rights are vindicated by the courts of the Contracting States, and the means by which those courts try a person charged with a substantive criminal offence are susceptible to scrutiny under Article 6.  We are in no doubt that the fairness of the Caldwell test, in so far as it is applied to children , is not justiciable under Article 6.

35.	Mr Newman has been unable to cite any decision of the EctHR which supports the proposition that Article 6 is concerned with fairness of substantive law. We do not consider that the decision in Barbera affords any support for Mr Newman’s contrary submissions.  That was a case which concerned allegations of bias in the court and procedural unfairness.  There was no complaint that the substantive offences on which they faced trial were themselves unfair.  It was in that context that what the court said at paragraph 68 must be considered.  They said:
“As a general rule, it is for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce. The Court must, however, determine – and in this it agrees with the Commission – whether the proceedings considered as a whole, including the way in which prosecution and defence evidence was taken, were fair as required by Article 6(1). For this purpose it will consider in turn the various grounds of complaint before it.”

36.	For these reasons, these appeals must be dismissed.
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LORD JUSTICE DYSON:  For the reasons set out in the draft judgment, which I think counsel has had about 20 minutes to look at, these appeals are dismissed.
MR NEWMAN:  My Lords I hope there has been passed up to you a marginally revised question for certification.
LORD JUSTICE DYSON:  What is the difference, I have not done a comparison?
MR NEWMAN:  May I say this draft comes from Mr Whitham as agreed by myself. The difference is this, that in the fifth line of the revised version, it says: "Gave no thought by reason of his age and/or personal characteristics" whereas I think the copy was the handwritten copy was the only one which your Lordships...
LORD JUSTICE DYSON:  It says "lack of understanding, lack of experience and/or exhaustion".
MR NEWMAN:  Those were the words used in Elliott.
LORD JUSTICE DYSON:  Exhaustion was relevant. I do not think exhaustion although it was 2.45 am.
MR NEWMAN:  Unless it is the exhaustion of the Court at counsel's submissions. I would invite your Lordships to certify in accordance with this particular question.
LORD JUSTICE DYSON:  That is agreed.
FOR THE CROWN:  My Lord it is.
LORD JUSTICE DYSON:  We are happy to certify that  question.
 
Question:
 
"Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?" 
 
MR NEWMAN:  Now my Lords, I invite your attention to two passages in the judgment, one to correct what might be a typing error or any such error.
LORD JUSTICE DYSON:  There are a few typographical errors that I have picked up already.
MR NEWMAN:  This is more than a typing error. On page 10 the heading should be Article 6.
LORD JUSTICE DYSON:  That should have been Article 6.
MR NEWMAN:  Can I invite you to page 14 with a view to having certified. I invite your Lordship to grant leave to appeal to the House of Lords. My Lord it is quite clear that this Court has indicated its concerns about the test, along with a lot of academic writers and other courts that have similarly indicated certain concerns. My Lord, in my respectful submission, the sooner this is actually dealt with by the House of Lords and put on a  specific footing so there clearly is a position, the better. I would invite your Lordship, this is case in which I invite your Lordship to grant leave not simply to certify.
LORD JUSTICE DYSON:  Do want to say anything?
MR WHITHAM:  No.
LORD JUSTICE DYSON:  We obviously thought you were going to make this application so we have discussed it. We do see the force of that. Nevertheless, we think their Lordships should decide whether they wish to receive this appeal or not.  So we do not grant you leave to appeal.  There are a few other typographical errors but they do not effect in any way the substance of anything that appears in this judgment.  I will pass a copy of this to the shorthand writer with a small number of typical errors identified on it. I think there are copies of the draft. It is a draft but nevertheless we are happy for the draft to be circulated because, it seems to us, that particularly what we have to say about Article 6 is of general importance and it may be that people are interested in what we say about Caldwell. That is for others to say.
MR NEWMAN:  The only other matter is this. So far as legal aid is concerned, would your Lordship forgive my ignorance, I still have to ask for detail, an order for  detailed assessment.
LORD JUSTICE DYSON:  I do not think ‑ I am going to seek advice from down below. If you need confirmation or affirmation of the representation order which I thought you already had, then you may have it.
MR NEWMAN:  I am grateful.  I invite your Lordships to make one other order and it is exactly along the same lines as an order made not so long ago by Laws LJ in a similar situation where the appeal was dismissed, where the Court certified points of law but refused leave to appeal. It was this:  that legal aid be extended to junior counsel for the purposes of petitioning the House of Lords for leave and, if such petition be granted, then legal aid be extended to leading and junior counsel for the purposes of the hearing of the appeal.
LORD JUSTICE DYSON:  I have no doubt that you should have legal aid limited to junior counsel for the purposes of the petition, but we just wonder whether it is a matter for this Court to say anything about legal aid if leave is granted.
MR NEWMAN:  I know this Court has done it before. My Lord, I know the House of Lords, by and large, do not want to concern themselves with such minor matters.
LORD JUSTICE DYSON:  (To the Registrar) Again, can you help on this? 
MR NEWMAN:  I can assure your Lordship that this was exactly the form of the order.
LORD JUSTICE DYSON:  I have no doubt at all.  I agree, we accede to the application, it is entirely a reasonable application to make. It saves the House of Lords the trouble.
MR NEWMAN:  We are grateful to your Lordships for dealing with this matter expediently.
LORD JUSTICE DYSON:  Thank you both very much for your assistance in what we found a very interesting case.