The value of intention and recklessness in English Criminal Law
Intention and recklessness are
both vital in English criminal law. It is a defendant’s intention which is
crucial when courts decide if they had a guilty mind and subsequently whether
they should be punished. Recklessness is vital when deciding the facts of a
case and whether the defendant should be punished for not adequately assessing
the risks of the criminal act they are charged with. Intention and recklessness
can both provide the mens rea element of crime which allows a defendant to be
convicted of a crime. In reality, this means that recklessness and intention
carry different punishments but both can be used to ensure that the English criminal
law is effective in punishing people who do not consider risks or intend to commit
a crime. This article is going to examine what is meant by intention and
recklessness, the ways in which they are similar and different and the reasons
why there has been uncertainty surrounding their definitions.
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Intention
Firstly intention, intention is critical when a court decides whether or
not a defendant should be convicted a crime. In order to define intention we
must break it down into two forms: direct and indirect intention. Direct intention is the aim of the defendant. This is essentially,
whether the defendant would consider his action a failure if a desired
consequence did not occur as a result of his action. A case which helps define
direct intention is R v Mohan[1],
in this case Mohan was asked to slow down policeman, he did, but when he got
near the policeman he accelerated towards
the policeman who had to jump out of the way to avoid being knocked over. Mohan
was convicted of dangerous driving after it was judged that by accelerating the
car towards the policeman he had direct intention to kill or seriously harm the
policeman. This is summarised in the appeal judgement of James LJ where he
states that the appeal has failed because:
‘The charge is an attempt to cause bodily harm
by wanton driving. It has to be shown to you that the appellant deliberately,
without justification, irresponsibly, drove his vehicle in such a manner as was
likely to cause some bodily harm.’
Indirect intention is found
when the defendant may intend a consequence
although that consequence is not their objective if it is foreseen. A
case that helps define indirect intention is R v Woollin[2].
In this case Woollin threw his baby across the room in a fit of rage. He argued
that he was aiming for the pram and had no intention of killing or harming his
baby. The baby missed the pram and hit a hard surface which fractured his skull
and later died as a result of his injuries. At first instances and at appeal Woollin
was convicted of murder. His conviction was quashed by the House of Lords where
his murder conviction was substituted for manslaughter on the grounds that he
did not have direct intention to kill his baby and that his intention was
indirect. The House of Lords used Lord Lane LJ’s judgement from R v Nedrick[3] to justify
convicting Woollin of manslaughter. Lord Lane LJ stated that a defendant can
only have direct intention when:
‘The
defendant recognised that death or serious injury would be virtually certain,
barring some unforeseen intervention, to result from his voluntary act’
Wollin realised that there was a risk of serious
injury to his baby but he did not believe this risk to be virtually certain and
so he was not convicted of murder.
Recklessness
There are two forms of recklessness: subjective and
objective. Subjective recklessness is defined in R v Cunningham[4]. In this case Cunningham ripped a gas
meter off of a wall, the gas then leaked out and poisoned the victim. It was
judged that Cunningham had malice because ripping the gas meter off the wall
was reckless. Cunningham was convicted
at first instance but his appeal was accepted because he did not believe that
the victim would be harmed. In this case the defendant is aware of the risk and
acts recklessly and so he is said to be subjectively reckless. Objective
recklessness occurs when it does not need to be proved that the defendant was
aware of the risk, if the risk is was obvious one. A person is objectively
reckless when they create a risk without giving thought to it. Objective recklessness differs from
subjective recklessness because the defendant does not have to be aware of the
risk, they need only take a risk that a reasonable person would have foreseen.
A leading case that helps define objective recklessness is R
V Caldwell[5].
This case creates
the model direction for objective recklessness as
it was judged that a person is reckless for the purpose of criminal damage if
he does an act which creates an obvious risk that property will be destroyed or
damaged and when he does that act he either has not given any thought to the
possibility of there being such risk or has recognised that there was such risk
and has nonetheless gone on to take it. Caldwell has since been overruled by
the judgement in R v Gemmel[6] where the defendants aged
11 and 12, lit some newspapers which set fire to a wheelie-bin which set fire
to a shop, causing £1,000,000 of damage.
On appeal they were found not guilty of arson as the jury believed that
Caldwell was wrongly decided. The Criminal Damage Act 1971 states that a person
is guilty of an offence when they are:
‘(a) intending to destroy or damage
any property or being reckless as to whether any property would be destroyed or
damaged.’[7]
Intention and recklessness are similar
in some respects[8]. Firstly they both form
part of the mens rea of crimes. For
example in a murder trial intention to kill must be proven in order for the
defendant to have had the necessary mens rea to be convicted of homicide[9].
Likewise it must be proven that the defendant was driving recklessly in order
for him to have the necessary mens rea to be convicted of causing death by
careless or inconsiderate driving[10].
Both intention and recklessness are metal states that the defendant might
experience when he is performing the actus reus of a crime. Also they both have
clear links to risk. Intention involves the conscious taking of a risk in order
to achieve an aim and recklessness involves taking an unjustifiable risk either
consciously (subjective recklessness) or unconsciously (objective
recklessness).
Differences between recklessness and intention
There are differences between
intention and recklessness. It could be argued that intention is more thought
out than recklessness[11].
When a defendant has intention to commit a crime they are taking a risk in
order to achieve an aim. They have voluntarily chosen to take this risk and are
taking it as method of achieving their intention. Whereas recklessness is seen
to be more careless, when a defendant is reckless they may be aware of the risk
they are taking but they are not taking the risk in order to achieve anything. Culpability
is also a major difference between intention and recklessness. It is widely
believed that defendants with an intention to commit a crime deserve punishment
because their mental state is guilty. However when it comes to objective
recklessness there appears to no culpability because the defendant was not even
aware of the risk that was being taken.
The final difference between intention and recklessness is the link they
have to a reasonable person. Intention can be considered outside of what is
reasonable. A defendant can intend to commit a crime both rationally (for
example calmly calculating how to kill someone) and irrationally (shooting
someone in a fit of rage but still intending to kill them) either way this
intention is part of a guilty mental state. Unlike intention, recklessness must
be considered in relation to a rational person. Subjective recklessness is still
irrational even though the defendant was aware of the risk, what makes it
reckless is that a reasonable person would not have chosen to do it. Objective
recklessness is always judged in relation to a rational person and cannot exist
if it is not considered in relation to a rational person.
The uncertainty surrounding recklessness and intention
Many uncertainties surround the
definitions of intention and recklessness. This is mainly because three
questions arise: should being reckless be punished? Should it matter if the defendant
considered risk? Should we measure a defendant’s taking of a risk against a
reasonable person? Firstly it is
uncertain whether recklessness should be punished. In order to decide we need
to look at the function of punishment in the criminal law. If punishment is a
means of deterring future offenders,[12]recklessness
should be punished so that in future people take time to consider risks. If
punishment is part of a paternalistic criminal law system,[13]
subjective recklessness should be punished as it could stop citizens taking unjustifiable
risks which could harm themselves and others but objective recklessness should
not be punished because it seems unjust for someone to be punished for taking a
risk they were unaware of. Or perhaps the criminal law is there to protect
society therefore all recklessness should be punished in order to prevent harm
to society. Secondly when deciding whether it should matter if the defendant
considered risk we must consider the effects on society. If it doesn’t matter
society could suffer because people could take risks knowing they cannot be
punished. However if it does matter, there are many implications for
legislation. For example: how do we know what risks should be considered? Are
some risks too unlikely to need consideration? Should defendants consider all
risk no matter how small? Thirdly it can be argued that we should measure a
defendant’s taking of a risk against a reasonable person because this is a good
way of judging what is acceptable and it helps us to predict outcomes based on
what a reasonable person would do. However it could also be argued that
everyone is different and so we should not be compared to a set reasonable
standard as it takes away our individualism and in reality we are not all the
same.
To conclude, intention and recklessness
are both crucial parts of the mens rea of crimes. They are similar because they
are both mental elements in crime and link to risk. They differ because
intention is about the defendant’s aim whereas recklessness is about the
careless taking of risk. There are many uncertainties surrounding the
definitions of intention and recklessness because it is not clear why
recklessness is punished or why it should matter that the defendant considered
risk and there are issues with comparing each defendant to a set ‘reasonable
man’. In order to clarify the definitions of intention and recklessness we need
to look at the function of the criminal law, the effect different definitions
have on society and the way in which the definitions could change how risk taking
is viewed by society.
[1] R
v Mohan [1975] 2 All ER 193, CA
[2] R
v Wollin [1998] 3 WLR 382
[3] R
v Nedrick [1986] 3All ER 1
[4] R
v Cunningham [1957] 2 QB 396
[5] R
V Caldwell [1982] AC 341
[6] R
v Gemmel [2003] UKHL 50
[7] Criminal
Damages Act 1971 s1
[8]
Lucy William, ‘controversy in the criminal
law’ (2006) http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.1988.tb00646.x/full
accessed 15/11/12 02:35
[9]
Homicide Act 1957
[10]
Road Traffic Act 1988 s2B
[11] Andrew Halpin
‘Definitions and
directions: recklessness unheeded’ (2006)
http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.1998.tb00019.x/abstract
accessed 15/11/12 23:30
[12] Paul H Robson and John M Darley ‘Does Criminal
law deter? A behavioural science investigation’ (Oxford journal of legal studies volume 24 no 2, 2004, p 173-205)
http://webscript.princeton.edu/~psych/psychology/research/darley/pdfs/Does%20Criminal%20Law%20Deter.pdf accessed 10/11/12 15:00
[13] Richard
Tur ‘ Paternalism and the criminal law’ (2008) http://onlinelibrary.wiley.com/doi/10.1111/j.1468-5930.1985.tb00031.x/abstract
accessed 12/11/12 at 12:05
