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Over the years the law on Intention and Recklessness had been under academic scrutiny and criticism for being inconsistent. Several adaptations were introduced in the evolution of the law making it more settled such as the House of Lords’ decision in Woollin, and this essay aims to address why they were not enough to eliminate the inadequacy of the English Law.
Starting with the basics, in order to establish a crime both the actual conduct (Actus Reus) and the state of mind (Mens Rea) must be present. The “guilty mind” of an offense consists of two elements: Intention and recklessness.
The intention has two limbs, Direct and Oblique intention but for the sake of this essay, Oblique is the one to be discussed. Oblique intention can be said to exist where the defendant embarks on a course of conduct to bring about another result. It is important to have a clear definition of Intention since it is the men’s rea requirement for some of the most serious offenses including murder. To tackle that courts fabricated two tests. The subjective test which is concerned whether the defendant did foresee the degree of probability of the result occurring from his actions and the objective test which looks the perspective or a reasonable person i.e. Would a reasonable person have foreseen the degree of probability on the results occurring from the defendant’s actions?
The historical development of oblique intention starts with DPP v Smith having an objective meaning given by the House of Lords even though nowadays intention is recognized with a subjective concept. Using the case of DPP v Smith, where the offense is serious, the men’s rea that is required to be established must be applied in a subjective state of mind instead applying the elements to a reasonable person. Due to the s.8 of Criminal Justice Act 1967 which confirms that intention must be addressed subjectively this case no longer represents the current law.
Where oblique intention arises courts needed simply to give a meaning to intention. This was proved to be extremely difficult since there is no determining point to the degree of foresight necessary. Following, in the case of R v Hyam where the appellant set fire to her ex-lover’s house letterbox resulting in the death of two children, the House of Lords expressed that intention could be found if appellant foresaw death or GBH as ‘highly probable’. This test was criticised of being too close to recklessness providing a degree of inadequacy since it is extremely important to maintain a clear distinction between intention and recklessness in order to distinguish between offenses of murder and manslaughter.
The same concern was even present in the case of R v Woollin where the appellant through his 3-month-old baby on a hard surface resulting in death. The trial judge when directing the jury, substituted the phrase of “virtual certainty” with the phrase “substantial risk” and as Lord Steyn stated ‘By using the phrase “substantial risk” the judge blurred the line between intention and recklessness and hence between murder and manslaughter. This misdirection enlarged the scope of the mental element required for murder’ giving rise to greater lack of adequacy.
Derived from R v Moloney which is about the defendant getting self-intoxicated and shooting his step-father under the impression of a dare, House of Lords retreat from R v Hyam approach and embrace as stated by Lord Bridge the “golden rule” which merely says that the Judge should avoid elaboration and leave jury to decide whether there was an intent unless further explanation is in fact needed.
Consequently, this “mechanism” could help oppose the inconsistency coming from jury misdirection. Contradicting with R v Moloney, the court in R v Hancock & Shankland which is about miners on a strike trying to block the road by throwing concrete blocks in it killing a taxi driver, decided that the Moloney guidelines were misleading as it did not refer to the degree of probability, being an evidence of inconsistency amongst case law.
In R v Nedrick a narrower test was formulated which forms the basis of the current law and states that ‘…jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty… as a result of the defendant’s actions and that the defendant appreciated this’. This test provides a clearer distinction between intention and recklessness.
Progressing to the second element of the men’s rea, recklessness generally refers to the taking of an unjustified risk. R v Cunningham where the appellant ripped the gas meter for money resulting to gas leakage poisoning his future mother-in-law was the starting point for subjective recklessness test. This test attempts to understand what the accused was actually thinking at the time of the actus reus. Defendant believes his conduct will give rise to a risk of harm and the risk of harm was unreasonable to take. Even though the Cunningham test is classified as a subjective test, the element of examining if the risk was unreasonable to take is partly objective, creating an overlap between subjective and objective testing leading to a confusion on how the jury should decide the fate of the defendant.
Later on, in the case of MPC v Caldwell which is the case of a man getting drunk and setting fire to a hotel not harming anyone, an objective test also known as the Caldwell test was established. This objective test imputes the men’s rea elements on the basis that a reasonable person would have had. This radically altered the law and received widespread criticism. The difficulty with a subjective test is that it is based entirely on the defendant’s state of mind and it is for the prosecution to prove that the defendant did foresee a risk of harm. It is difficult to prove a state of mind. It allows too many defendants to escape liability by simply claiming they did not foresee a risk.
However, Caldwell recklessness is capable of causing injustice as it criminalises those who genuinely did not foresee a risk of harm including those who are incapable of foreseeing a risk, such as Elliot v C where a girl of a very young age and learning disability was found liable for the burning of a shed since starting a fire on a shed created an obvious risk to any reasonable person.
For years these two tests coexisted which this had a negative impact on the adequacy of the law. The Caldwell test was only applicable to criminal damage offenses whereas the Cunningham test on the other offenses resulting to going back and forth to these tests making it complicated for judges to direct correctly the confused jury which was obligated to apply both tests resulting to having the defendant charged with two offenses. The case of R v G, which describes two young boys letting a fire unattended spreading and causing 1 million pounds worth of damage let the House of Lords overrule the MPC v Caldwell case and rejecting the Caldwell objective test which Lord Bingham said it created ‘obvious unfairness’. A new subjective test was then introduced allowing the subjective approach to prevail.
Concluding the subjective definition of recklessness partly favors the defendant and has the flexibility to allow those who are blameworthy to avoid criminal liability. On the other hand the objective definition of recklessness is too harsh and can criminalize people who genuinely did not foresee the risk, similarly defining intention is difficult and still unclear. There is with no doubt a significant level of inadequacy present, but the English Law appears more settled than before.
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