Before a person is convicted of a
crime, the resp...
Before a person is convicted of a
crime, the responsibility of proving a guilty state of mind known as mens rea
lies with the prosecution of the case. There are three types of states of mind,
which together or separately constitute the required mens rea for a criminal
These are the intention, negligence, and recklessness. Under the English law, a
particular state of mind is required depending on the crime as is stated in the
law. For example, a case of murder requires proof of the intention to cause the
grievous bodily harm. It is expected that the definition of such a term
fundamental to prove a criminal case to have a clear definition but that is not
always the case. The research below includes definition, similarities and
differences as well as outline the uncertainty surrounding intention and
recklessness states of mind.
Intention requires the highest degree
of a fault of all the levels of mens rea. A person, who intends to commit a
crime, can be said to be more culpable than another who acts in a reckless or
However, over the years, attempts to define the term attention have been
difficult. There is no specific definition of the meaning of intention. The
situation is partly because of the judiciary’s failure to be precise and
accurate. Pointing out purpose especially in the case of murder can prove to be
tough. There are a series of emotive issues that are at play in such a
situation and so the judges are careful of the possible consequences of a
mandatory life sentence for those that are found guilty of murder. Therefore,
the definition of intention is of great significance to the courts and has been
subject to debate and subsequent evolution over the years.
The intention is different from motive
or desire as demonstrated by the Per Lord Bridge R v Moloney  AC 9 Case.
For example, a person that kills a loved one dying from a terminal illness with
a motive of relieving them from the pain and suffering may have acted for a
good purpose. However, it does not prevent the individual from having the
necessary intention to commit murder as was the R v Inglis  1 WLR 1110
Two forms of intention have been
developed over time; these are direct intent and oblique intent. If the
defendant has a specific aim in mind when committing an act, and then succeeds
in bringing out the aim, it can be said that he directly intended the
consequences that came with their act and hence has a direct intent. However,
if an individual has an intention to commit an act bit the initial act causes a
secondary consequence to occur, the person is said to have an oblique intent.
The Law Commission in the Draft Criminal Code for England and Wales defined
oblique intent as when an individual act is a practical certainty that the
illegal result will occur.
Giving a clear definition to oblique
intent has been problematic and resulted in a long line of case law and debate
as regards to its real meaning. One definition that has worked in the past is
that oblique intent can be attributed to a defendant that voluntarily commits
an act, but the consequence that comes with the act was not his initial or
primary aim, but the defendant foresaw that it would arise from their conduct.
However, the definition raises questions on the probability of the defendant
having foreseen the consequences and when the foresight becomes the intention
itself. The oblique intent is also known as the foresight intent. The courts
hold that the foresight of the consequences can only be evidence of intention
if the defendant was fully aware that the results would certainly happen.
Therefore, it is not sufficient that the defendant merely foresaw a likelihood
of a particular occurrence.
Recklessness is taking an unjustified
risk. According to the English law, the courts have developed two tests that have
given legal meanings to recklessness but apply to different offenses.
Subjective recklessness also known as the Cunningham recklessness is
subjective. The defendant knows that then the risk is present, is willing to
take it and then goes ahead to take deliberately the risk. According to this
test, the major question to consider is whether the risk was in the defendant’s
mind at the time of committing the crime. The subjective test was established
in the R v Cunningham  2 QB 396.
The other test is the objective
recklessness also known as the Caldwell recklessness. According to this test,
the risk needs to be apparent to a reasonable individual that is any reasonable
man would have realized if he had thought about it.
A person is reckless when he performs an act that creates an obvious risk and
when performing the act, he has either thought of the possibility of such risk
arising or that he recognized that some of the risks existed but still went on
to take it. The test was established in MPC v Caldwell  AC 341. The risk
should be obvious to the reasonably prudent individual although it was not
obvious to the defendant himself. A person that stops to thin is still liable
if they realize that there is some risk that exists.
The loophole that exists in the
Caldwell test is that in a case where an individual took the time to analyze or
consider whether there was a risk that existed in an act and concluded that
there was no risk, then such a person is not reckless within the precise
wording of the definition of objective recklessness. Lord Diplock’s definition
in Caldwell is that if a person has given a significant act thought to the risk
and came to a wrong non-intentional conclusion as to the intensity of the risk.
The situation is referred to as the lacuna or loophole in the Caldwell
The objective test to recklessness is
criticized for being unjust in that it has two meanings. The Caldwell test also
does not make a clear distinction between an individual that knowingly takes a
risk and the person that gives no thought to whether a risk exists or
otherwise. The Caldwell test also offers a substantial overlap between the
principle of recklessness and that of gross negligence. These are some of the
shortcomings that face the implementation and the following of the principles.
Intention and recklessness states of
minds have a variety of similarities and differences. One major similarity
between them is that they both reflect a degree of choice for the individual.
In both cases, the defendant holds the power wand it all goes down to the
choices they make. In both cases, the defendant has made a wrong choice to be
on the wrong side of the law. The only exception is in a case of objective
recklessness where the risk is not conscious.
Intent and recklessness have a
difference in their level of blameworthiness. The intent is to the
highest-level form of mens rea whereas recklessness is at a lower level of mens
rea. Moreover, with recklessness, there is an element of lack of intuition or
rather some form of naivety in the defendant when they are not able to
anticipate risk or when they undermine the level of risk. However, with
intention, the defendant’s intent it is a case of an individual’s choices and
they make a conscious and informed decision to act in a way that causes harm to
another person. The intent is a case of the immoral act, and it is more strict
than with a case of recklessness and hence holds a bigger punishment to the
offender. There is a concise difference between making a decision to kill a
person and making the decision to act in a way that endangers their life. The
minimum level of foresight required for intention is ‘virtual certainty’ in
contrast to subjective recklessness where it is required that there be
foresight of consequences.
Both intention and recklessness hold
problems in their definition. The intention has the likelihood to convict
individual that carry doubt in their actions. It raises the question as to
whether such individuals deserve to be treated as those who act pout of pure
malice and have bad intent. Also, the two rests in recklessness cause confusion
and in some cases they may lead to some form of absurdity.
If the higher case of Cunningham standard is tolerated to be applied to a case
of rape and the lower Caldwell applied to criminal damage, it will bring a
controversy on whether the property is more valuable than the life of a person.
Moreover, the definition of Caldwell also fuses with that of negligence
producing confusion. Therefore, the intention and reckless states of mind are
critical principles to prove mens rea in a criminal case but face a series of
problems in their definition and application.