ESSAY - INTENTION AND RECKLESSNESS

INTENTION AND RECKLESSNESS

Intention to achieve a particular consequence is the mens reas for offences other than murder which is intention to cause serious harm/grievous bodily harm (Woolin 1999). Lord Steyn ‘… I approach the issues arising on this appeal on the basis that it dies not follow that intent necessarily has the precisely the same meaning in every context of criminal law.

Crime of constructive malice – s.1 of the Homicide Act 1957

Implied malice aforethought – Hyam v DPP (1957) and Cunningham (1982). This calls for discussion of Caldwell and the new case of C v G and Elliot. Was Elliot a harsh case – a mentally subnormal young girl made a criminal for doing something she wasn’t aware she was doing and couldn’t be aware of. Tell the examiner your opinion and present what the law says. Show your intelligence and perception by demonstrating the difficulties. The general distinction is that intention is having your mind on the thing that you can bring about by your actions, aiming to bring it about.

Recklessness means you are aware of the risk you might bring about but you unjustifiably nevertheless create that risk. It is not clear whether you have to be mentally aware in the case of intention, since when I walk intentionally, I’m am not aware that I’m putting one leg in from, then the other etc since I do this subconsciously, and of course, I can have a continuous intention to kill someone (until I have actually killed them) even while I sleep. Furthermore, it is not clear that I have to desire, or want to do something when I intend to do it, as when I intend to do household chores but don’t want to. It is not clear what additional aims I have, even though it seem clear that when I formed the intention I was fully aware of what would inevitably follow e.g. where I put new curtains in my office, knowing for certain they will eventually fade; it sounds most odd to say ‘so you put the curtain up with the intention that they would fade? It does not, though, sound odd in the same way to say that the person who put a bomb in a jumbo jet in order to get property insurance, but who was aware of the certain consequences to human life, did not intend to kill the passengers on the plane. The secret to scoring really good marks on the above question really does require lateral thinking. The paragraph does not contain a single case, but various case illustrate the points (Steane; Maloney; Hancock; Nedrick; Woolin; Re A; the Law Commission reports 117 and 218. Independent thought other than regurgitation of the contents of these cases is more important. In actual fact, the cases are sometimes more confusing because, well, even judges have difficulty of the idea of intention and human responsibility for these concepts go right to the heart of what the criminal law is all about. You will obtain a good answer for speculating.

The meaning of intention is very interesting and a reading of cases does not reveal a clear meaning. To say a person did something intentionally requires judgement, in criminal context, a morally evaluative judgement. Puzzles about intention and virtual certainty – can you intend something that is out of your control; can you intend something for certain about anything about the future. Issues raised in Woolin. Recklessness is a tantalising concept because it is both like and unlike intention. A degree of foresight, below a particular level of probability, moves intention almost imperceptibly to recklessness; this is what motivated Halisham’s well-known judgement in Hyam (1975) AC 55

Being reckless connotes morale blameless, whereas doing something intentionally does not. Why? Because D is fully aware of his aim and objective and his act are directed towards that act – complete attempt. General subjective test as confirmed by G. Subjective test, where recklessness converges with high degrees of negligence and which make a great deal of sense. Caldwell (1992) AC 341; Elliot (1993) 2 All ER 1005 (the case bring to light the unfairness inherent in establishing objective standards of responsibility. Candidate likened Caldwell to cases of strict liability and included argument both for and against that form of liability. In criminal law, there is a good case for ‘joined up’ thinking. It would be too quick – it would show rigidity of thought and lack of imagination – to assume that because of G’s overruling of Cadwell, there was no room for discussion, in many ways, attractive test. Indirect and Oblique intent, the doctrine of double effect. It was also important for candidates to formulate a working definition, it cannot all be done from the case. Start with something like aiming at, or planning to, or deciding and link intention as a state of mind (not necessarily awareness in sense of full consciousness) to an act, since that is how ‘intention’ is to be distinguished from ‘hope’, desires’ and other mental states. Another important idea to distinguish from intention is motive, or reason for acting. Indeed it is the link to acts that makes ‘intention’ a central concept of criminal law.

The mens reas for murder is intention to cause serious harm/grievous bodily harm (Woolin 1999) 1 AC 82; Matthews &Alleyn (2003) EWCA Crim 1229. It mus also be shown that defendant foresee virtual certainty of death or grievous bodily harm, the jury cannot infer intention, but must find intention.

D does not foresee virtual certainty that anyone would be injured? The test is what is actual belief is a jury might have the view that anyone who places a bomb in these circumstances cannot form a clear belief that there is a chance that someone will not be injured. Likely reach of explosion and what sort of judgement is it that the room is so large. It is clear that D was sufficient unaware of the bombs characteristics even to know when it would precisely explode. Secondly D could argue that by ringing the police he had put in motion a chain of events that would have saved lives had they acted quick enough this transferring the blame to the Police. D can hope that the police can prevent people being injured, but he can also foresee that if they do not do this in time people might be injured. Analogous scenario painted by Smith in 1990 (‘A note on Intention’ (1990) Crim. LR 85). A man who plants bomb on a plane but does so realising that the bomb has a 50% failure rate. It is arguable that he does not intend the death of the crew or passengers because it is not virtually certain. It is not clear whether D has an overall purpose. It is simply to frighten people it is not necessary to succeed in that purpose by having people injured, D would have appear to escape the Smith-inspired amendment to the draft code. Third D can claim that he could not reasonably have foreseen the ‘intervening act’ that a school party would take place in the reading room at the time. Well this argument should probably be put on D’s behalf, but the likelihood that a jury would find that a reasonable person would not foresee that a group of people might be in room in a library at that time seem low.

An assault cannot take place where the potential victim is not aware of the assault. There is no transfer malice because offence relating to window would only amount to criminal damage (shop is due for demolition). Meaning of damage. If glass were broken it was rendered ‘inoperative’ (e.g. A (a Juvenile (1968) Crim LR 689). Since there is no intention to cause damage, meaning of recklessness was required (R v G. (2003) HL 50). C’s retaliation is possibly a reasonable response to the facts as he belief them to be. Did C’ killed A. He did if his action was operating and significant or he reasonably foresaw that death. He seems unlikely he intended to kill A, but he could have intended to cause grievous bodily harm, in which case liability for murder is a possibility.

Defences, self-defence (is this ‘reasonable force’ and was it done to prevent further attack?) and provocation (did C suffer a ‘sudden and temporary’ loss of self-control) in the sense of loosing temper. It is more likely that an unlawful act manslaughter is appropriate as C’s intention is place a in immediate apprehension of battery; in this case self-defence would be possible but not provocation. Discussion of relevant cases, self-defence and provocation. Windle (1952) –killing a dog knowingly, he would not succeed with the defence of insanity, unless successful argument that the nature and quality of the act was not known. The question deals with insanity and not duress or provocation. Hyperglycaemia and Hypoglycaemia. Insanity is a very special defence. McNaghten – insanity constitutes mental disorder of a very high degree where the defendant is quite out of touch with events. The defence is not lack of blame but lack of mens rea. An appropriate way of dealing with the defence includes. Such defendants need treatment and the public in most cases needs protecting. Special verdict was devised – in some cases ‘unfitness to plead is appropriate and various orders relating to hospitalisation made. Windle (1952) – Killing a dog knowingly, he would not succeed with the defence of insanity, unless successful argument that the nature and quality of the act was not known Self defence

Abortion Act 1967
Exception to criminal liability or justification for performing an abortion was based on Bourne (1938) and Newton and Stungo (1958). Terminally ill and suffering patients – Adams (1957); House of Lords in Bland; Gallick v West Norfolk and Wisbech AHA (1985) HL. Reluctance – Dudley and Stephens (1984); Southwark London Borough v Williams (1971). Duress of circumstances accepted but cannot be raised for the charge of murder of attempted murder Howe (1987 HL; Gotts (1992). Requires discussions along the line clearly marked in Re A (Co-joined Twins). It requires speculation. The point about choosing between two potential victims on the basis of preference for males. Would it have been fairer had J chosen L to survive by tossing a coin. It seems fairer to take into account the fact that K was pregnant then there is a possibility that two lives rather one could be saved. Speculation is such matter is law – Dudley & Stephens, Re A Re Diane Pretty and, particularly, the US case of US v Holmes. The requires a fairly general discussion on the defence of necessity and not an extended accounts of the facts of Re A (Co-joined Twins). Whether there is general defence of necessity in English law is unclear since first-year students commonly suppose the answers are clear. Give your reason for saying what the law is Dudley & Stephens held that necessity was not a defence to murder; yet DPP v Lynch held that duress was a defence to murder, at least as a participant How do you distinguish from circumstances that give rise to duress from those that give rise to necessity? Only unlawful homicide is murder. What are the ingredients of lawful murder. If you want to answer this question you must be prepared to speculate. The impact of Bailey (1993) on deliberately inducing automatism. Miller Principle. Involuntary act – Lord Denning in Bratty v A-G of Northern Ireland (1961) HL
Hyperglyceamia (lack of insulin); hypoglycaemia (lack of sugar). M’Naghten Rules if a D’s state of automatism was caused by disease of the mind – which is a question of law for the judge to decide – then he is insane. Sullivan (1993) HL; Hennessey (1989), Bingham (1991) and R v T 1990. Would the decision in Hannessey have been different if the Australian rule that a temporary mental infirmity is automatism (see Falconer (1990) Aus) applied in this jurisdiction.