Compare and contrast Intention and recklessness as fault terms governing criminal liability
To be guilty of a crime, it is usually expected that the defendant has the necessary mens rea or guilty mind, (subject to cases of strict liability.). The level of mens rea required varies for different crimes, to find the mens rea one must look at the specific definition of a crime. For the purpose of this essay I will first look at Intention and Recklessness and then compare the two as fault terms governing criminal liability.
The meaning of intention in criminal law is as of yet disconcerted, however, the Law Commission of the draft Criminal law Bill clause 1 (a) attempts to provide a definition:
A person acts intentionally with respect to a result when:
I. It is his purpose to cause it; or
II. Although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in some other purpose of causing some other result.
In Mohan, direct intention was explained as being, ‘ a decision to bring about, in so far as it lies in the accused’s power (a particular consequence) no matter whether the accused desired that consequence or not’. The motive behind such intention is not intention itself but is used as evidence in proving that intention exists. S.8 CJA requires that all mental elements be proven by reference to all evidence. So direct intention implies that the accused’s reason for acting was to bring about that consequence and this can be seen as the clearest possible case of intentional action, as the accused will be acting for the purpose of that consequence, hence holding the highest degree of blameworthiness. Direct intent has to be proven for cases such as murder and GBH with intent
Otherwise known as foresight of consequences, is a rather delicate subject for discussion. The difficulty in its explanation rises because; a defendant does not desire the consequence, his aim is something else, but his actions have the effect of making the consequence happen. The definition of oblique intention has been disturbed on many occasions, so to be able to understand the current definition of oblique intention it is necessary to look at the previous cases which have helped develop the law regarding oblique intent. At one time DPP v Smith was authority for the view, that a person foresaw and intended the natural and probable consequences of his act, but s.8 of the CJA (as above) reversed this, as now it requires that intention or foresight must be proven.
In Hyam, it was required that the consequence must be ‘highly probable’. The main objection to this test is what is ‘highly probable’? This definition is likely to convict people unjustly because it is wider then ‘certainty’ and therefore has a larger scope for conviction and can convict those who are reckless of murder. This leads to many uncertainties, what if the accused foresaw the consequence as only ‘merely probable’? In Hyam, Lord Diplock held; ‘one who does an act knowing full well of the consequence, although it was not the object he was seeking to achieve, implies a state of willingness to produce the particular consequence and is in my view intent’. However, Lord Hailsham attempted to distinguish Hyam, by adding; ‘deliberately exposed victim to serious risk of death’, hence separating Hyam from other risk-takers who’s purpose is not to expose them to such risks. So where it is a defendant’s purpose to create a ‘risk of death’ as opposed to foreseeing death to whatever degree of probability, this should be treated as an intention to kill.
In Moloney, it was decided that foresight of consequences was only evidence from which intention could be inferred. In Moloney, the appellant’s appeal was allowed. The House of Lords held that ‘a highly probable consequence is not the same as intending it’. Lord Bridge composed a two part test as to which the jury should be directed upon on the offence of murder:
Lord Bridge added, that, ‘sometimes a special jury direction maybe necessary ‘where evidence suggests defendant may have acted for some other purpose then to cause death’. Its seems that the judges wanted to relax the law for medical staff such as doctors, who’s motive may not be to kill, but to relieve the deceased from pain.
In the case of Hancock and Shankland it was stressed that the probability of the consequence occurring is important in deciding if there is evidence from which to infer intention. But their conviction was quashed because it was entirely up to the jury to decide what degree of foresight is required for an inference of intention.
In Nedrick, a conviction of manslaughter was substituted, after the court of Appeal said that they jury should ask themselves two questions;
Then, if the consequence was a virtual certainty and the jury were sure that the defendant foresaw it as being so, there would be evidence from which the jury could infer intention
In the most recent case regarding oblique intent, Woolin to an extent upheld the decision in Nedrick. In Woolin, the defendant was charged with murder and the judge directed the jury in accordance with the Nedrick guidelines, the house of Lords did not like the two questions in Nedrick, but agreed that the jury should be told that they are not entitled to find the necessary intention unless, 1) they feel sure that the consequence was a virtual certainty and 2) the defendant appreciated that such was the case. As of today this is how the law stands, though the courts do not follow it slavishly they are nevertheless good guidelines. ‘Virtually certain’ is regarding as to mean something that is bound to occur, exception to an unexpected event.
So now we can say that intention is either Direct, where the defendant has the desire to bring about that consequence, or oblique, where the defendant has knowledge that the consequence is virtually certain if things go according to plan.
The law on recklessness is not any more coherent then that of intention. Recklessness is an alternative fault element for offences such as manslaughter, criminal damage and offences against the person. In its broadest terms, recklessness is the taking of an ‘unjustified risk’. Having said that it must be noted that the definition of recklessness varies in different offences. From the different offences, two forms of recklessness have been distinguished, subjective and objective recklessness.
Subjective recklessness was established in Cunningham, here the defendant was charged with ‘administering a noxious thing as to endanger life’. It was decided that the word ‘maliciously’ meant either: an actual intention to do that particular type of harm that was in fact done, or recklessness in the sense that the defendant when acting realised there was some risk of such harm occurring. The second is subjective recklessness, and it will only hold Cunningham to account if he had realised that there was a risk that escaping gas could injure someone. Subjective recklessness requires the defendant to have foreseen the risk himself. However, Parker, held that where the accused ‘closes his mind to the obvious’ he could still be reckless. Parker suggests that subjective recklessness is too fair for the accused, just because he didn’t consider the risks.
Objective recklessness attempts to rectify this. Objective recklessness was established in Caldwell. It was held that a defendant is still reckless even if he had not realised the risk, an ‘ordinary prudent individual’ would have realised the risk. He jury are entitled to infer its decision from all evidence available. In Caldwell, Lord Diplock added; ‘when recklessness establishes an element of the offence, if the actor due to self-intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.’ Courts no longer consider what the defendant realised, but are imposing a test of what others would have realised. Objective recklessness requires that the risk must be obvious to the reasonable man, and need not be obvious to the defendant himself. Criticism of this is that this can make someone liable even if they were incapable of realising the risk- Elliot v C. The objective test leaves a loophole for escape for those who considered whether there was a risk of harm and decided that there was none.
Therefore recklessness has two meanings: one is that observed in Cunningham: a defendant is subjectively reckless when he consciously undertakes an unjust risk. He must realise that there is a risk involved, but if he continues to carry on with his conduct, then he is reckless. I believe that Lord Diplock felt that Cunningham recklessness was to narrow for the Criminal damage Act 1971, so Caldwell recklessness now applies specifically to offences under the 1971 Act. The objective test only requires that the risk must be obvious to the reasonable person, and the defendant need not have foreseen harm or damage. The definition of objective recklessness is now held to be synonymous to that of negligence, as they both require the unconscious taking of a risk.
Having now looked at both intention and recklessness, I will now look at some of the similarities and differences between them. The first crucial note to make is that both intention and recklessness reflect a degree of choice. In both cases a defendant is acting consciously and they choose to do wrong, with the exception to objective recklessness, where the risk is unconscionable. Both intent and recklessness carry a different level of blameworthiness. Intent is the highest form of mens rea, and recklessness is a lower level of mens rea. With recklessness there is an element of foolishness and naivety in the defendant as to whether the consequence would occur, but with intention the defendant’s intent itself would be regarded as immoral and in its stricter form of direct intention it would be regarded ad evil and thus holds a higher degree of punishment. As it was held in Hyam, there is a clear difference between deciding to kill someone and deciding to endanger their life. The minimum level of foresight required for intention is ‘virtual certainty’ in comparison to subjective recklessness where there is a requirement of ‘foresight of consequences’. There is an apparent fundamental difference between ‘virtual certainty’ and ‘foresight of consequences’. However both intention and recklessness carry problems with them in their definitions. Intention is likely to convict those who are doubtful in their actions, should such people be categorised as those who act with ‘wicked’ intent. The two tests in recklessness causes confusion, and in some cases can lead to absurdity. If the higher Cunningham standard is allowed to be applied to rape and the lower Caldwell standard is applied to criminal damage, does this mean that property is better protected than people? The definition of Caldwell recklessness as it stands fuses with that of negligence, before Caldwell there was an obvious difference; recklessness meant knowingly taking a risk and negligence meant unknowingly taking a risk of which you should have been aware of, now Caldwell reckless comes very close to negligence.
Criminal Law William Wilson
Smith & Hogan Criminal law, cases and materials- 7th edition
  QB 1
 Criminal Justice Act 1967