In English Law, What is Meant By Intention and Recklessness

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 offence[1]. 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 negligent manner[2]. 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 [1985] AC 9 Case[3]. 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 [2011] 1 WLR 1110 Case.

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[4].

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[5]. 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 [1957] 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[6]. 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 [1982] 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 principle[7].

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[8].

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[9]. 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.