Mens Rea: Intention and Recklessness Compared

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Compare and contrast intention and recklessness as fault terms governing criminal liability

To be guilty of a crime, it is usually expected that the defendant has the necessary mens rea or guilty mind, (subject to cases of strict liability.). The level of mens rea required varies for different crimes, to find the mens rea one must look at the specific definition of a crime. For the purpose of this essay I will first look at Intention and Recklessness and then compare the two as fault terms governing criminal liability.

The meaning of intention in criminal law is as of yet disconcerted, however, the Law Commission of the draft Criminal law Bill clause 1 (a) attempts to provide a definition:

A person acts intentionally with respect to a result when:

I. It is his purpose to cause it; or

II. Although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in some other purpose of causing some other result.

Direct/purposive intention

In Mohan[1], direct intention was explained as being, ‘ a decision to bring about, in so far as it lies in the accused’s power (a particular consequence) no matter whether the accused desired that consequence or not’. The motive behind such intention is not intention itself but is used as evidence in proving that intention exists. S.8 CJA[2] requires that all mental elements be proven by reference to all evidence. So direct intention implies that the accused’s reason for acting was to bring about that consequence and this can be seen as the clearest possible case of intentional action, as the accused will be acting for the purpose of that consequence, hence holding the highest degree of blameworthiness. Direct intent has to be proven for cases such as murder and GBH with intent

Oblique intention

Otherwise known as foresight of consequences, is a rather delicate subject for discussion. The difficulty in its explanation rises because; a defendant does not desire the consequence, his aim is something else, but his actions have the effect of making the consequence happen. The definition of oblique intention has been disturbed on many occasions, so to be able to understand the current definition of oblique intention it is necessary to look at the previous cases which have helped develop the law regarding oblique intent. At one time DPP v Smith[3] was authority for the view, that a person foresaw and intended the natural and probable consequences of his act, but s.8 of the CJA (as above) reversed this, as now it requires that intention or foresight must be proven.

In Hyam[4], it was required that the consequence must be ‘highly probable’. The main objection to this test is what is ‘highly probable’? This definition is likely to convict people unjustly because it is wider then ‘certainty’ and therefore has a larger scope for conviction and can convict those who are reckless of murder. This leads to many uncertainties, what if the accused foresaw the consequence as only ‘merely probable’? In Hyam, Lord Diplock held; ‘one who does an act knowing full well of the consequence, although it was not the object he was seeking to achieve, implies a state of willingness to produce the particular consequence and is in my view intent’. However, Lord Hailsham attempted to distinguish Hyam, by adding; ‘deliberately exposed victim to serious risk of death’, hence separating Hyam from other risk-takers who’s purpose is not to expose them to such risks. So where it is a defendant’s purpose to create a ‘risk of death’ as opposed to foreseeing death to whatever degree of probability, this should be treated as an intention to kill.

In Moloney[5], it was decided that foresight of consequences was only evidence from which intention could be inferred. In Moloney, the appellant’s appeal was allowed. The House of Lords held that ‘a highly probable consequence is not the same as intending it’. Lord...
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