Criminal Law Assignment

The current legal definitions of intention and recklessness are not entirely
successful in ensuring that those, and only those, who are deserving suffer
punishment for their wrongdoing.

Discuss with particular reference to murder and criminal damage.

The mens rea of murder is known as ‘malice aforethought’. This means that
the accused must have either intended death or GBH. As the current law
stands, there are two different types of intention, which may form the mens
rea of both fatal and non-fatal offences. The first type is direct intent and is
viewed as the ordinary meaning of intent. It is when the accused desires the
death or serious harm to occur. For instance if a person stabs another several
times with a knife, the intention here would be direct. What if however, a
person does not desire a consequence, but knows that if he does a particular
act then that consequence is very likely or even inevitable? This is known as
oblique intent. In the past the reasonable person must have foreseen the
possibility of the consequence occurring. In DPP v Smith 1 The House of
Lords said that it did not matter what the defendant had in his mind at the
time, or even if he had anything in his mind. The question was "not what the
defendant contemplated, but what the ordinary man or woman would in all
the circumstances of the case have contemplated as the natural and probable
result" of his actions.

This test was overturned in s.8 Criminal Justice Act 1967, which established
a subjective test and this is now the law. By abolishing this and replacing it
1
(1961) AC 290

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with the subjective test. This means that the accused himself must have
foreseen serious harm or death, therefore the jury can take into account his
capabilities of foresight and convict him accordingly In response to the
above statement, s.8 helps to ensure that the current definition of intention
punishes only those who are deserving. It must be proved that D himself
actually had foresight that death or serious harm might occur. It is the
degree of foresight, which creates problems in the courts. Questions which
arise are; does foresight of a consequence equal intention? What degree of
foresight would be required?

The application of oblique intent to murder is best illustrated with a case. In

Woollin2, D lost his temper and threw his 3-month-old baby on to a hard
surface. He was charged with murder. He argued that he had not intended to
kill or do serious harm. The prosecution did not try to prove that D wanted
to kill his baby son, but alleged that he must have realised that what he was
doing was virtually certain to result in serious injury. However the trial
judge directed o the jury that D was guilty of murder if he realised that there
was a substantial risk that he would cause serious injury to the child. The
defence appealed on the basis that the trial judge misdirected the jury by
using the term ‘substantial risk’ and thus widening the mental element of
murder. The Court of Appeal upheld D's conviction and denied that a
Nedrick3 "virtual certainty" direction was necessary. The House of Lords
however, decided that the precise terms of the Nedrick direction should have
been be given and quashed Woollin’s murder conviction and substituted it

2
(1997) Crim LR 519
3
1(1986) 3 All ER 1

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with one of manslaughter. In Nedrick, D had a grudge against a woman. He
ignited her house with paraffin and a child died in the fire. He admitted he
caused the fire but said he did not intend to kill anyone. He was convicted of
murder following a special direction given to the jury. The special direction
is:

“Where the charge is murder and in the rare cases where the simple
direction is not enough, the jury should be directed that they are not entitled
to find the necessary intention, unless they feel sure that death or serious
bodily harm was a virtual certainty (barring some unforeseen intervention)
as a result of the defendant’s actions and that the defendant appreciated that
such was the case.”

This is the direction must be used when the case involves oblique intent. It
means that death or GBH must be a virtual certainty to the defendant.
Oblique intention and direct intention are states of mind are equally
blameworthy. A popular example to explain this is where a person to claim
life insurance, plants a bomb on a plane about to take off. He cannot claim
he is not guilty of murder because he did not desire the deaths of the
passengers, it were an inevitable consequence of his action. If the current
law only allowed direct intent to form malice aforethought, such a person,
who clearly deserves the label of a murderer, would not be convicted of
murder.

The direction also helps to ensure that those guilty of only manslaughter are
protected from being labelled murderers. The direction means that it is
wrong to suggest that D’s knowledge of death or GBH as a substantial risk
of his acts, or any other degree of probability, would do as conclusive proof
of intent to kill, thus attempting to eliminate the less culpable state of mind,

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recklessness in murder. As a result, those who were reckless in causing
death are not convicted.

For example, a person who foresees that death or serious injury is ‘highly
probable’ and still, does the action, cannot be guilty of murder. Thus the law
helps ensure that only those who deserve the murder conviction get it. This
is very important, as murder is the most serious of crimes and carries a
mandatory sentence. The distinction must be retained, as society will not
respect a legal system, which does not take seriously the distinction between
manslaughter and murder.

As well as highlighting the positive role of the Nedrick direction, it is

important to discuss the trouble it might cause juries. Juries are entitled to
find intention if they feel sure the accused was virtually certain of GBH or
death. The concept of “virtual certainty” continues to cause problems.
Foresight of “high probability” is not sufficient for oblique intent to kill, but
it is not clear at what point, “high probability” becomes “virtual certainty”.
What if the jury convict a person of murder when it was only highly
probable that GBH would occur? Some argue that as juries have a choice, it
may lead to inconsistencies and so, cases involving risk-taking, no matter
how extreme, should be left to the law of manslaughter.

Another fault element is recklessness. There is objective recklessness and

subjective recklessness. The leading authority for the subjective approach is
Cunningham4. The defendant removed a gas meter from a house to steal
money from it. He left gas leaking from the pipe. He was convicted of
4
(1957) 2 QBD 396

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maliciously administering a noxious substance so as to endanger life
contrary to s.23, Offences Against the Person Act 1861. The question was
whether the defendant had the required ‘malice’. The Court of Appeal
quashed the conviction as malice simply requires the accused to foresee the
particular harm and nevertheless has gone ahead to take the risk.

The subjective stance was used to be sufficient mens rea for Criminal
Damage before Caldwell5. The House of Lords however changed this in
Caldwell. In this case the defendant set fire to a hotel in a drunken state,
after arguing with the owner. He pleaded guilty to s.1 of the Criminal
Damage Act (simple arson) and not guilty to s.2 (aggravated arson). He
claimed that because he was drunk he was not aware that he might endanger
life. At first instance of appeal this argument was rejected on the basis that
being drunk is no defence to a crime of recklessness. The house of upheld
the conviction and Lord Diplock gave a lords gave a model direction; an
actor is guilty of criminal damage under s.1 if he does an act which in fact
creates an obvious risk that property will be destroyed or damaged, and
when he does the act he either has not given any thought to the probability of
there being any such risk or has recognised that there was some risk
involved and has nonetheless gone on to do it. Thus the House of Lords
created an objective test of recklessness, which was binding on all future
cases of criminal damage. This direction lead to many unfair decisions.

Objective recklessness simply requires the risk to be obvious to the

reasonable person. It is irrelevant whether the defendant recognised the risk
or not. Therefore in the case of Elliot the court felt bound to follow Caldwell

5
(1982) AC 341

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even though it would be an unjust result. A fourteen-year-old girl mentally
subnormal girl destroyed shed by fire using matches and white spirit, because
she wanted to stay warm. The Queen’s Bench Divisional Court upheld the
conviction on the basis that the risk would have obvious to the ordinary
person.

It is because of this unfairness the House of Lords, have changed the mens
rea of Criminal Damage once again. This happened in the recent case of R v
G. 2 boys lit some newspaper and threw it under a large plastic wheelie bin.
They left the yard without putting the fire out. The fire spread to a shop wall
and eventually the fire spread to the roof and adjoining buildings and the
roof collapsed, causing £1 million of damage. They were charged with
reckless arson contrary to s.1 (1) and (3) of the Criminal Damage Act 1971.
It was accepted that they did not appreciated that there was a risk of the fore
spreading like it did. The trail judge finding himself bound gave the jury the
Caldwell direction and they were convicted. The Court of Appeal dismissed
their appeal but the House of Lords quashed their conviction. The reason for
this is that the Caldwell direction convicted people who were innocent. It
went against the very principle that most criminal law is based on, in order
to achieve justice. ‘Actus non facit reun nisi mens rea’, which means there
should not be liability for an act, unless a culpable state of mind goes with it.
It is unjust to convict a person on the basis of what someone else would have
apprehended, if the person themselves were incapable of that apprehension.

The law now requires that the accused is aware of the risk, the result, which
may occur, and it is unreasonable, in the circumstances known to him, to
take the risk. The law now ensures that people like Elliot, who are not

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deserving of punishment, are not punished. In saying that, it does take us
back to the problems faced by the courts when subjective recklessness was
used before Caldwell. For example, what happens when a person in the heat
of the moment, without thinking about the consequences causes criminal
damage? This happened in Parker 6 where, the defendant smashed the
receiver of a public phone onto the cradle, damaging it. He argued the
possibility of a risk did not arise in his mind. The court of appeal decided
that he was not only reckless when they were conscience of the risk he was
taking but also if ‘he closed his mind to the obvious fact that there is some
risk of damage resulting form that act’. This seems to be contradictory to the
subjective approach, because it does not require the accused to have
appreciated the risk. So in order to ensure that those like Parker who are
deserving of some punishment, the court argued that closing one’s mind to a
risk means, in his mind, he chose not to consider the risk, thereby making his
mental state subjective. This type of approach ensures that subjectivism is
not lenient in that, the excuse of not thinking about a risk acquits them.

Words: 1985

6
(1977) 1 WLR 600

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