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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
5.1
5.2
5.3
Intention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
5.4
Recklessness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
5.5
Negligence
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
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Introduction
As we saw in Chapter 3 of this subject guide, criminal guilt, at least for traditional core
crimes, requires both wrongdoing and fault. It is not a crime to kill someone; but it is a
crime to intentionally or recklessly kill someone.
Criminal fault is necessary to ensure that conviction and punishment are deserved. It
acts as the criminal laws filtering mechanism to ensure that only the blameworthy are
punished. Criminal fault is of two types objective fault and subjective fault.
For murder, the prosecution must prove an intention to kill or cause serious injury.
For theft, the prosecution must prove the defendant knew others would think their
actions were dishonest.
For criminal damage, the prosecution must prove the damage was done
intentionally or recklessly (with foresight).
For handling stolen goods, the prosecution must prove the handler knew or
believed that the goods were stolen.
In this chapter we will examine the meaning of two forms of subjective fault (mens rea)
namely intention and recklessness and the major form of objective fault namely
negligence.
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5.3 Intention
Intention lies at the heart of criminal liability, since a basic element in all core crimes is
that D intended to do the act which formed the meat of their wrongdoing. To be guilty
of murder by shooting, for example, the prosecution must prove both that D intended
to pull the trigger and that they intended to kill, or at least cause serious injury. It is
important from the outset to understand that intention is different from motive. As
a rule of thumb, the motive provides the actors reason for forming the intention.
Criminal liability, in theory, ignores motive.
Illustration 5.1
a. A shoots B, a police officer, through the heart in order to escape arrest.
b. A (Bs wife) gives B, who is suffering a painful terminal illness, a lethal dose of
poison so that B can die without further suffering.
In both of these cases A intends to kill B. The motive, good or bad, is ignored.
Activity 5.1
Read Wilson, Section 6.6.A.1 Intention and risk taking and answer the following
questions.
a. How would you define intention?
b. Do you agree with Lord Diplocks definition of intention in Hyam?
c. Why do you think he defined intention in this way?
d. What problems are created by this definition?
e. Give an example of such a problem.
However, the jury must decide whether the consequence was intended by reference
to all the evidence, and not just the probability of the consequence occurring. Section
8 of the Criminal Justice Act 1967 states that:
the jury shall not be bound in law to infer that he intended or foresaw a result of his
actions by reason only of its being a natural and probable consequence of those actions.
It should instead make the decision about whether D did have such an intention or
foresight:
by reference to all the evidence and drawing such inferences from the evidence as appear
proper in the circumstances.
Some have taken the effect of Nedrick to mean that if a person acts in the knowledge
that a consequence is practically certain then they intend it as a matter of definition.
It does not. It means that they may intend it as a matter of evidence. This means that
the jury will normally find it difficult (because the evidence of intention is so strong)
to resist finding that D did intend the consequence, even though it may not have been
their primary purpose.
Illustration 5.2
D rapes V, a four-year-old infant. D then throws V into a fast-flowing river in order
to destroy any trace of his DNA. He knows that this will certainly, for all practical
purposes, result in Vs death, which it does.
D does not act for the purpose of killing but the jury will nevertheless find it
difficult, if not impossible, to conclude that he did not intend to kill V because he
knew that this was inevitable and yet did nothing to stop it. If D did not intend the
death of V then why did he do what he did? He intended, in other words, the whole
package.
This approach was adopted by the House of Lords in the case of Woollin (1998), in
which Nedrick was approved. Woollin threw his infant son across the room in a
moment of fury, and the sons skull fractured and he died. Woollin was charged with
murder. The prosecution accepted that Woollin did not act in order to kill or cause
serious injury, but nevertheless argued that he intended at least serious injury. Woollin
was convicted of murder. He appealed on the basis that the trial judge misdirected the
jury on the meaning of intention.
The House of Lords made two very important points in this case. The first point is that
in the vast majority of cases the jury should not be directed by the judge as to what
intention means since it is an everyday word. The jury should be directed simply that
it should find the defendant not guilty of murder unless it was sure he intended to kill
or, if not to kill, then to cause grievous bodily harm (the simple direction). However, it
must be explained to the jury that intention is not the same as motive.
The second point is that the jury should be given some guidance in those rare cases,
such as in Woollin and in Illustration 5.2 above, where, although the evidence does
not indicate a purpose to kill or cause grievous bodily harm it does indicate that the
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This direction makes clear that the foresight of virtual certainty is not intention in
itself but only evidence from which the jury is entitled to infer intention, depending
upon the rest of the evidence (see R v Matthews and Alleyne (2003)). For example, in
Illustration 5.2 above the jury would no doubt wish to find the death of V intended. But
it would be less inclined to find intention in Illustration 5.3 below, where D would also
foresee death as a virtual certainty.
Illustration 5.3
V is in hospital on a life support machine. Doctors have concluded that there is no
prospect of recovery. X is admitted to the hospital following a car accident. X will
die unless put on to a life support machine immediately, but there are none free. Y,
Xs surgeon, removes the life support machine from V and gives it to X. Y knows that
the inevitable result of this will be Vs death. Does Y intend to kill V?
The Woollin direction tells the jury that it is entitled to say yes but should make its
decision on the basis of all the evidence. In other words, the jury is also entitled to say
no if the evidence as a whole supports that conclusion, which in this case it clearly does.
The Woollin direction is important for giving the jury some discretion (or elbow room)
not to find intention in cases where death occurs as a side effect of an action otherwise
quite acceptable, such as this. This is a surprising state of affairs because motive is not
supposed to be taken into account in deciding whether intention is present or not.
Activity 5.2
Read Wilson, Section 6.6.C The meaning of intention in the criminal law and
answer the following questions.
a. What is the difference between intention and motive?
b. Why is motive not supposed to be relevant to a persons culpability?
c. Have the courts always kept to this principle?
d. Why do you think that courts sometimes take motive into account when they
are not supposed to?
e. In the case of Steane (1947), on what ground could Steane have been acquitted
other than his lack of criminal intent?
The Woollin direction is most important for drawing a clear line between intention and
recklessness. Foresight of anything less than virtual certainty cannot be intention but
can only be recklessness.
A succinct restatement of the present state of the law as to the meaning of intention
and the guidance juries are to be given appears in a recent Law Commission Report:
(1) A person is taken to intend a result if he or she acts in order to bring it about.
(2) In cases where the judge believes that justice will not be done unless an expanded
understanding of intention is given, the jury should be directed as follows: an intention
to bring about a result may be found if it is shown that the defendant thought that the
result was a virtually certain consequence of his action. (LC 304: Murder, manslaughter and
infanticide (2006), para.3.27)
Activity 5.3
Read Wilson, Sections 6.6.A Everyday usage and its relevance to criminal
responsibility and 6.6.C The meaning of intention in the criminal law. In each
of the following questions state whether Adam intentionally kills Eve and, if so,
whether the form of intention is direct or indirect.
a. Adams wife, Eve, is trapped in a car which is about to be engulfed by flames
after an accident. She pleads with Adam, who has escaped the wreckage, to kill
her before she is burnt to death. Adam does so by a gunshot through the heart.
b. Adam and Eve go climbing together in the mountains. While climbing a steep
cliff, for which they are roped together, Eve slips and starts to fall. The weight
of Eves body begins to drag Adam off the cliff. Adam therefore cuts the rope,
causing Eve to fall to her death.
c. Adam, an angry farmer, sees Eve trespassing on his field about a kilometre away.
He takes out his rifle and aims it at her. He knows he is unlikely to hit her since
the rifle has a range of only around a kilometre, it is not a very reliable rifle and
he is not a very accurate shot. Adam hits Eve and she is killed.
5.4 Recklessness
The mental element known as recklessness has had an undistinguished history. On
numerous occasions it has been used by judges interchangeably with negligence or
gross negligence, especially in the field of manslaughter. In theory, these two fault
elements are very different: recklessness is a subjective fault element requiring proof
of awareness or thought, whereas negligence is an objective fault element which
does not. The traditional meaning of recklessness is the deliberate running of an
unjustified risk of which D was aware.
This definition was adopted in R v Briggs (Note) [1977] 1 WLR 605, a case on criminal
damage to a car caused by overenthusiastic wrenching of the door handle.
5.4.2 Being aware of a risk does not always require conscious thought
process
This definition is true for the few crimes of malice which still remain, of which the
most important is malicious wounding, an offence under s.20 OAPA 1861. Professor
Kenny talks of the defendant foreseeing the risk of harm of damage. Perhaps a better
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This statement applies to those who know what the risks are but close their mind to
the obvious.
But what about those, such as the young and those with learning difficulties, who do
not or would not know them in the first place? Are they reckless? In Stephenson (1979)
the defendant was a vagrant who lit a fire to keep warm in a haystack. The haystack
was destroyed and he was charged and convicted of criminal damage. However, D had
a long history of schizophrenia and expert evidence at trial suggested that he may
not have had the same ability to foresee or appreciate risks as the mentally normal
person. The trial judge told the jury that it could convict if D closed his mind to the
obvious fact that the haystack could be destroyed. Then the judge said all kinds of
reasons which make a man close his mind to the obvious fact among them may be
schizophrenia, that he is a schizophrenic. The jury convicted and D appealed.
Activity 5.4
a. Read Wilson, Section 6.8.A.1 The subjectivist stance. What was the Court of
Appeals response to Stephenson?
b. Closing the mind to a risk is obviously a metaphor. But what does it actually
mean?
Apart from the closing the mind type of recklessness, one further qualification
needs to be made with respect to the requirement that the prosecution must prove
conscious foresight. That is if the lack of awareness is due to voluntary intoxication.
In R v Brady [2006] EWCA Crim 2413, D was drunk when he climbed on railings at a
nightclub and fell on to the dance floor below, causing serious injuries to V who was
dancing there. He was charged with malicious infliction of grievous bodily harm, an
offence under s.20 OAPA 1861.
Directing the jury as to recklessness, the judge said:
where there is no issue of intoxication the test requires that the defendant should be
aware of a risk and go on to take it, the risk being of injury.
Activity 5.5
Read Wilson, Section 6.8.A Recklessness in the criminal law and answer the
following questions.
D returns to the car park where has left his car to find that it is boxed in by cars
on either side. He knows that he will not be able to escape from his parking spot
without risking damage to one or other cars. He decides to take that risk. Despite
taking as much care as possible, the consequence is that he breaks the wing mirror
of one of the cars. Is he reckless for the purpose of criminal damage? Who decides,
judge or jury?
The key thing about this direction is that it tells the jury that it can convict of a crime
of recklessness (such as criminal damage) although D gave no thought to the risk of
damage, so long as the risk was obvious; in other words, as long as the reasonable
person would have recognised the risk. This definition became the standard definition
for all crimes of recklessness, except for crimes of violence such as assault and
malicious wounding which, confusingly, continued to require actual awareness of the
dangers of causing harm on the part of the defendant (R v Spratt (1991)).
Activity 5.6
Read Wilson, Section 6.8.A.2 Caldwell recklessness and answer the following
question.
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Activity 5.7
Read Wilson, Section 6.8.A.3 The retreat from Caldwell and answer the following
questions.
a. What reasons did the House of Lords give for overruling Caldwell?
b. Do you think that the House of Lords went too far in requiring the defendant to
be aware of the risk they are taking?
c. Is the closed mind form of recklessness still recklessness or does the overruling
require actual foresight of the risk in all cases?
d. Do you agree with the decision in Booth v Crown Prosecution Service [2006] All ER
(D) 225?
e. A finds her car in the car park pinned by the car on either side. She can only enter
her car by opening her car door and squeezing inside. She considers whether
this creates a risk of denting the neighbouring car and concludes that so long
as she is particularly careful when entering the car any damage will be avoided.
She is wrong and the car is dented. Is she reckless for the purpose of the crime of
criminal damage?
f.
D, who is thinking about other things, parks his car in a car park and, without
checking to see if any other car is in the vicinity, opens his car door. Vs car,
which is close by, suffers a serious dent.
5.5 Negligence
It is important to be able to distinguish recklessness from negligence. As you know,
the formal distinction is that recklessness, which is a form of subjective fault, requires
awareness. Negligence, which is a form of objective fault, does not.
All cases of recklessness are automatically also cases of negligence. Recklessness is
negligence with added fault, namely awareness of the risk being run. However, not
all cases of negligence are cases of recklessness because negligence does not require
proof of any awareness of the risk. The two fault elements start to fade into each other
Activity 5.8
Read Wilson, Section 6.7.B Negligence in the criminal law and answer the following
questions.
a. Apply the Law Commissions definition to careless driving. Give examples of the
three ways a driver can drive negligently.
b. Which, if any, of these examples might lead the jury to conclude that the
defendant was also reckless?
c. Can a person who lacks the skill, capacity for care and foresight of reasonable
people escape liability for careless driving by relying on this lack?
d. Are those who possess special skills negligent if they fail to exercise those extra
skills or only if they fail to satisfy the standards of ordinary reasonable people?
Crimes of subjective fault are often graduated in terms of the degree of commitment
shown to the result. This is why murder is treated more seriously than reckless
manslaughter, because Ds commitment to the outcome is greater than where D kills
only recklessly. Negligence, as a form of objective fault, also forms part of a ladder of
gravity. There may be degrees of negligence. At the top end there is gross negligence
which is the fault element of gross negligence manslaughter. To be guilty of this
offence, the prosecution must prove far more than simply that D failed to exercise
such care, skill or foresight as a reasonable man in his situation would exercise. It
must show the failure which led to the victims death was of such a high degree that
nothing but a manslaughter conviction would address it.
For other crimes, such as dangerous driving, extra negligence beyond that necessary
for careless driving is necessary. Careless driving becomes dangerous driving when a
driver falls far below the expected standard, and when such a failure brings obvious
risks of danger (s.2A Road Traffic Act 1988).
Many other crimes have a negligence component. The most obvious example is
rape for which, until the passing of the Sexual Offences Act 2003, D would not be
liable if they honestly believed the victim to be consenting. The new fault element is
negligence (objective fault). D will escape liability for non-consensual intercourse only
if their belief that V consented was based on reasonable grounds.
A negligence component may also be included in an otherwise strict liability offence
by the incorporation of a no-negligence or due-diligence defence. For example, by
s.28 of the Misuse of Drugs Act 1971, a person has a defence to the otherwise strict
liability crime of possessing controlled drugs if they can prove that they neither
believed nor suspected nor had reason to suspect that the substance or product in
question was a controlled drug. Notice here that there is a reversal of the usual burden
of proof. The defence rather than the prosecution has to do the proving. The apparent
justification for this is that the offence is one of strict liability and that therefore any
escape from liability must be hard won.
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