1. Mens Rea 2 - Recklessness
Date: Thursday, 27 April 2017
Mens Rea 2 - Recklessness
Lesson Outcomes:
Describe the difference between intention and recklessness
Apply the law correctly to scenarios
Evaluate whether the current position on recklessness is satisfactory
Specification links:
Mens rea: intention and subjective recklessness;
Key vocabulary
Mens rea, recklessness, intention
Starter: How likely are these actions to cause harm?
Impossible
Unlikely
Possible
Probable
Highly probable
Virtually certain
Certain
1. A man fires a shotgun out of the window of a remote farmhouse
2. A man fires a shotgun into the air on the moon (no other astronauts around)
3. A man fires a shotgun which he is holding directly at the head of his victim
4. A man fires a shotgun at the head of someone stood in his doorway.
5. A man fires a shotgun out of the window of a shop in the high street
6. A man fires a shotgun at a bus queue six foot away.
7. A man fires a shotgun in the direction of a bus queue twenty feet away 1

2. 1. A failure to do something, which doesn’t normally bring liability
A. Direct Intent
1. A failure to do something, which doesn’t normally bring liability
B. Omission
2. A true desire to bring about the consequence
C. Mens Rea
3. A crime where the outcome is the action prohibited
D. Consequence crime
4. Sometimes known as the fault element which often turns an innocent act into a guilty one
E. State of affairs crime
5. A crime where D is liable in spite of having no voluntary actus reus or mens rea

3. Direct vs Indirect Intention
D wants to scare occupiers of flat
so that they move out, so pushes
lighted paper through letter box
A fire starts in flat. Occupiers
scared and move out
Occupiers’ child dies as a
result of fire that starts
Achieves aim
Direct intent
Indirect intent

4. Criminal Justice Act 1967
s.8 A court or jury, in determining whether a person has committed an offence:
shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but
shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

5. Solution Nedrick [1986] Virtually certain consequences
Woollin [1998] (HL) Virtual certain consequences
Hancock and Shankland [1986]
Greater degree of probability greater degree of foresight
Test widens
Test narrows
Maloney [1985]
Natural consequences
Hyam [1975]
High degree of probability
Woolin (CA)
More than a slight risk of harm
Arguably creates unacceptable
overlap with recklessness

6. Woollin (1997) Cr App R 97 CA
D threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. The Court of Appeal held that there was no absolute obligation to refer to virtual certainty. Principle –House of Lords held: Murder conviction was substituted with manslaughter conviction. There was a material misdirection which expanded the mens rea of murder and therefore the murder conviction was unsafe. The House of Lords substantially agreed with the Nedrick guidelines with a minor modification. The appropriate 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 infer 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. The decision is one for the jury to be reached upon a consideration of all the evidence.”
Not guilty of murder guilty of manslaughter

7. R v Matthews & Alleyne [2003] 2 Cr App R 30 (461) CA
DD appealed against their conviction for murder following the death of a young man (a non-swimmer) whom they had thrown from a bridge into a river.
Principle – The Court of Appeal affirmed the conviction, which it did not consider unsafe in the light of the evidence, but expressed concern that the Nedrick/Woollin evidential rule should not be treated as if it were a rule of law. A defendant's foresight of virtually certain death does not automatically require the jury to find that he intended that
result: it is merely evidence (albeit often very strong evidence) from which the jury may draw that conclusion.

8. Exam tip …
Bob is a member of Horse Meat Forever, a group which believes that people should only be eating Horse Meat. To get publicity for his cause, he plants a bomb in Buckingham Palace. He phones the police to let them know that it will explode in 15 minutes. The operator, Susie, mishears and thinks he says 50 minutes.
They evacuate the Palace, and after 15 minutes, Jeremy the bomb disposal expert goes in. The bomb explodes, killing Jeremy.
An ability to distinguish direct and oblique intention is crucial. Try answering the following question to identify the type of intention.
Remember to use CASE LAW

9. Exam tip …
Was the result/consequence an inevitable consequence of achieving his primary purpose.
If so this is likely to be oblique intention so apply the ‘virtual certainty’ test from Woollin and Matthews and Alleyene.
If you are not sure think about whether the facts suggest that the defendant must have seen death ‘out of the corner of his eye’ when embarking on his primary objective as this also points towards oblique intent.
What was the defendant trying to achieve?
If the answer is the same as the result/consequence then it is an issue of direct intention and should be straightforward to establish liability.
If the answer is something other than the result or consequence then turn to oblique intention.

10. What might we mean by the term ‘recklessness’?

11. Recklessness Some crimes require the lower level of mens rea
Recklessness = subjective recklessness
D knows there is a risk of the criminal consequences
Is willing to take that risk
And then takes it deliberately
Have to look in defendant’s mind
Leading case is Cunningham (1957)

12. R v Cunningham (1957) 41 Crim App 155
D went into the cellar of an house that was converted into two.  He tore the gas meter from the wall and from its pipes and stole money from it. He did not turn off the gas at a stop tap nearby and gas escaped, seeped through the dividing wall of the cellar and partially asphyxiated his prospective mother-in-law, who was asleep in her bedroom. D was charged, with having unlawfully and maliciously caused W to take a certain noxious thing, coal gas, so as thereby to endanger her life.
Principle – The correct test is whether D foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. This is so, even if D did not intend the injury to V. [Cunningham Recklessness] The word "maliciously" in a statutory crime means foresight of consequence, it does not mean "wicked". It can be either an actual intention to do the particular kind of harm, or recklessness whether such harm should occur or not. It does not it require, any ill-will towards the person injured. D was not guilty (on a misdirection)

13. Subjective Recklessness
Not limited to just ill-will towards person injured and so therefore does not require specific ill-will towards person injured
Make sure you can distinguish between recklessness and oblique intent in an exam question

14. So that’s all clear then …
Until the courts hold of it of course!!
Now comes MPC v Caldwell (1981)
The court decided that liability could exist in two situations
D realised the risk and went ahead OR
D had not thought about the possibility of any risk but went ahead

15. MPC v Caldwell [1982] AC 341 House of Lords
The appellant had been working at a hotel and had a grudge against his employer. One night after consuming a large quantity of alcohol he went to the hotel and started a fire. The hotel had 10 guests sleeping in the hotel at the time. Fortunately the fire was discovered and distinguished early and no people were actually harmed. The appellant was convicted of aggravated criminal damage under s.1(2) Criminal Damage Act 1971 and appealed in relation to the required level of recklessness. The defendant argued that he had given no thought as to the possible endangerment of life due to his intoxicated state.
Principle – House of Lords upheld his conviction and formulated what has become known as Caldwell recklessness: A person is reckless as to whether property is destroyed or damaged where: (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.

16. MPC v Caldwell
What are the implications of this decision?

17. Caldwell Recklessness
Caldwell recklessness radically altered the law and received widespread criticism.
The tension between subjective and objective tests of recklessness continued with each test being problematic. The difficulty with a subjective test is that it allows too many defendants to escape liability by simply claiming they did not foresee a risk.
Caldwell recklessness is capable of causing injustice as it criminalises those who genuinely did not foresee a risk of harm including those who are incapable of foreseeing a risk as Elliot shows

18. How bad could the Caldwell decision get?
Elliot v C (1983)
…the solution?
R v G&R (2003)
Did D realise that there was a risk and go ahead anyway?

19. Elliott v C [1983] 1 WLR 939
The defendant was a 14-year old girl of low intelligence who had started a fire in a shed. She had poured white spirit on the floor and set it alight. The magistrates applied the test laid down in R v Caldwell but inferred that in his reference to "an obvious risk" Lord Diplock had meant a risk which was obvious to the particular defendant. They acquitted the defendant because they found that the defendant had given no thought at the time to the possibility of there being a risk that the shed and contents would be destroyed, and this risk would not have been obvious to her or appreciated by her if she had thought about the matter. The prosecution appealed by way of case stated.
Principle – If the risk is one which would have been obvious to a reasonably prudent person, once it has also been proved that the particular defendant gave no thought to the possibility of there being such a risk, it is not a defence that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it.

20. R v G & R [2003] 3 WLR House of Lords
The two appellants, aged 11 and 12, went camping for a night without their parents’ permission. The boys found some old newspapers outside the Co-op which they lit with a lighter and then threw them under a wheelie bin. They then left without putting them out assuming they would naturally burn out. In fact the burning newspapers set light to the wheelie bin and the fire spread to the Co-op shop and caused over £1m of damage.
Principle – The defendants' convictions were quashed. The House of Lords overruled MPC v Caldwell. The appropriate test of recklessness for criminal damage is:
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."

21. The position now…
The House of Lords held a subjective standard now applies to criminal damage:
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."

22. Intention only is required Recklessness is acceptable
Criminal Offences
Specific Intent
Basic Intent
Intention only is required
Recklessness is acceptable
Murder, s18 OAPA, Theft, Burglary, Robbery
Involuntary manslaughter, s20 OAPA, s47 OAPA, Assault, Battery

23. Try these – which type of mens rea?
A young girl was struck twice whilst playing in the forecourt of a block of flats by two airgun pellets, which had been fired from a window by the appellant. He admitted to the police that he had fired a few shots out of the window, not in order to hit anyone, but to see how far the pellets would go. (Based on Spratt (1990).

24. Try these – which type of mens rea?
Unknown to the science tutor in charge, a student went out of the lesson and took with him a boiling tube of concentrated acid. He went into one of the toilets. He then heard footsteps in the corridor outside the toilet, panicked and poured the acid into the hot air dryer, the nozzle of which was pointing upwards. He intended to return later to deal with the acid in the dryer. However, some time later another student went to the toilet to wash his hands. He turned on the dryer. The acid was ejected onto his forehead and trickled down the right side of his nose. It caused a permanent scar. (Based on DPP v K (1990).

28. Consolidating your knowledge