In his judgment Lord Bingham refers to the following: In his judgment, Lord Bingham refers to the following: (a) The meaning of “ malice” in the context of arson as laid out by Lord Professor Courtney Stanhope Kenny in the first edition of The Outlines of Criminal Law at pages 163-165.(page 186 of the 16th edition, Oxford University Press) (b) The comment of Professor Brain Hogan in 1969 on the Working Paper no: 23 of the Law Commission, on the replacement of the word “ maliciously” with “ willful or reckless. ” This appeared in the Criminal Law Review 283.(c) The report on Offences of Damage to Property of the Law Review Commission published in July 1970 (the Law Com No: 29) with its Working Paper no: 31 titled “ General Principles: The mental element in crime” that takes into account mens rea(d) Definition of “ reckless” as laid out by Professor Glanville Williams in the “ Textbook of Criminal law” , published in 1978 and at page 79 and “ Recklessness Redefined" (1981) 40 CLJ 252(e) The observations of Professor John Smith ( Crim LR 392 at 393-396(f) The distinction between the establishment of intent through foresight, vis a vis recklessness as clarified by Archbold, “ Pleading, Evidence and Practice” in the 40th edition, published in 1979, at page 958, para 1443c.
Also, the response to the case of Caldwell 41st edition of Archbold (1982) at paragraph 17-25, pages 1009-1010.Kenny offers a meaning of the word “ maliciously” in specific reference to arson. He states that when a house is burnt by sheer negligence due to the omission or even during the commission of an unlawful act, it cannot be considered as arson.
If some chattel is burnt within a house or building, and such burning is likely to cause a fire, and this causes the fire to spread elsewhere to a reasonable building, it will still not be considered a malicious act and will not be deemed to be arson, but rather an act of negligence.
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