Criminal Upper Second - Intention & Recklessness PDF

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Compare and contrast intention and recklessness as fault terms governing criminal liability.Criminal offences generally involve a mental element (mens rea). In offences which require proof of a result which is forbidden by the criminal law, the fault or mens rea is usually the state of mind the defe...

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Compare and contrast intention and recklessness as fault terms governing criminal liability. Criminal offences generally involve a mental element (mens rea). In offences which require proof of a result which is forbidden by the criminal law, the fault or mens rea is usually the state of mind the defendant had about whether that circumstance exists at the time. The mental element is an intention to bring about the forbidden result or knowledge that a circumstance exists. Recklessness is whether a result is caused, or a circumstance exists following the conduct. Certain crimes can only be committed with intention as the fault element, known as the crimes of specific intent. It is a crime for which the prosecution must prove that the defendant intended to bring about some state of affairs by doing what they did. Crimes which do not require the prosecution to prove that the defendant intended to do anything other than perform the acts, which they did perform are known as crimes of basic intent. According to Mahoney, there is no clear definition of intention. A defendant will be found to have intended a consequence if they desired the consequences to follow their actions. There are two types of intention; direct and indirect/oblique intent. The defendants intend is a result only if the proscribed result is a result only is the purpose or aim, that is, a direct intention of the accused, or the proscribed result is foreseen by the accused as virtually certain to occur or even just highly probable to occur. This is known as oblique intention. In Hyam v DPP 1975, most of the House of Lords held the direction to be correct as a definition of the mens rea for murder. Lord Hailsham said knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention. A man us presumed to intend the natural and probable consequences of his acts. Lord Diplock stated that this case confirmed that the legal definition of intention includes two states of mind (1) where D did an act because he desired it to produce that particular result and (2) D who, when he did the act, was aware that it was likely to produce that particular result but was prepared to take the risk that it might do so, in order to achieve some other purpose which provided his motive for doing what he did. In R v Moloney 1984, the judges decided that foresight of consequences was the only evidence from which intention could be inferred. The judges allowed the appellants appeal. The House of Lords held that a highly probable consequence is not the same as intending it. They also stated that foresight of the natural consequences of an act is no more than evidence of the existence of intent. Lord Bridge composed a two-part test as to which the jury should be directed upon on the offence of murder; was death or serious injury/grievous bodily harm a natural consequence of the defendant is voluntary act? And did the defendant foresee that consequence as being a natural consequence of his act? In Hancock and Shankland 1985, the House of Lords sought to qualify and clarify what was said in Moloney about the extended definition of intention. The defence was that Hancock and Shankland intended to block the road but not to kill or do serious bodily harm to anyone. Mann J directed the jury in accordance with the Moloney guidelines, this both were convicted of murder. The Court of Appeal quashed their conviction. Lord Searman again in HOL held that the lines enunciated in Moloney were unsafe and misleading because they did not refer to probability. In R v Nedrick 1986, Lord Lane CJ synthesising the rulings in Moloney and Hancock gave the following guidance for judges discreting juries in cases where there is insufficient evidence of a direct intent to kill

or cause serious injury, If he did not appreciate that death or serious injury was likely to result from his act, he cannot have intended to bering about it, even though he may not have had any desire to achieve that result. In Woolin, HOL’s trial judge directed the jury that if they were satisfied that the defendant must have realised and appreciated when he threw the child that there was substantial risk that would cause serious injury to it, then the jury could convict him of murder. The current test from the jury can find indirect intention comes from this case. The COA rejected his appeal but HOL substituted his murder conviction with a manslaughter conviction. Recklessness is mens rea requirement for many serious offences, such as reckless manslaughter or inflicting grievous bodily harm. S.1 of the Criminal Damage Act 1971 states that a person who is being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. In R v Cunningham 1957, the defendant ripped a gas meter off the wall in the cellar of an empty house in order to steal the money he had hoped was in it. While he ripped the gas meter off the wall, he fractured the gas pipe and gas spread into the adjoining house where it was inhaled by victim whose life endangered. Thus the defendant was convicted, applying a subjective test. This test was that, was the defendant aware of the existence of the unreasonable risk and if so, did the defendant take an unjustified risk. It was not necessary for defendant to foresee an obvious and significant risk. The court set aside the Cunningham test in relation to criminal damage and replaced it with a new objective test. The court said that jury can find recklessness when, either the defendant foresees the risk or if the defendant failed to foresee a risk that would have been obvious to the reasonable person. This test was established in the case of R v Caldwell. The defendant bore a grudge against the owner of a residential hotel where he had been employed himself. One night he set fire to the hotel. According to his evidence he was so drunk at the time that it did not occur to him that there might be people there whose lives might be endangered. It was seen that the case of Caldwell test was also capable of leading to unfairness. The current test for recklessness comes from the case of R v G. This case replaced the Caldwell test with a new subjective test. In this there were two boys who let a shop on fire which caused $1 million damage. They were charged initially in the crown court for arson. They appealed to HOL, who squashed the conviction and replaced the Caldwell test with a new subjective test. Intention and recklessness rely on common law subjective tests. Both rely on common law subjective test. Both are alternative fault elements for many offences such as criminal damage or offences against person. They have an element of foresight and there has been an overlap between the two over the past few years. All involve degrees of choice or commitment to the outcome which render punishment deserved. Recklessness can indicate lesser degree of fault than intention, which results in lesser penalty and punishment. Recklessness requires unjustified risk whereas indirect intention does not. Indirect intention requires knowledge of the certainty that a consequence will ensue. Recklessness requires simply awareness of the risk that it may requires simply awareness of the risk that it may ensue. The directly intended consequences are desired whereas recklessly caused consequences are not....