1) For some offences prosecution must prove BRD that the accused intended a particular consequence. ie murder, intention to kill/GBH , recklessness will not suffice 2) also in OAPA 1861, s18 intention alone suffices , intent to wound/GBH 3) there is no stat definition of intention. Its meaning is found in judicial decisions. Lack of consistency in the approach to the issue 4) Why is intention important? it is the highest level of blameworthiness. the fault elements common in defintion of offences are intention and recklessness.
they reflect different degrees of blameworthiness ie intention to kill/gbh for murder-life sentence but recklessness is manslaughter and this carries discretion by judges in sentencing upto a life sentence, ( OAPA 1861 s 5) 5) the concepts of recklessness and intention are distinct and have a hierarchical relationship. so the boundary of intention and recklessness ( the taking of an unjustified risk) should be clearly drawn to reflect teh correct blameworthiness. 6) jury decides on the question of intention and so the direction to them should be clear .
The Meaning of intention _ the core meaning of intention is ‘aim, purpose or objective’. A P intends a consequence if he acts to bring it about. This approach was adopted in Moloney by James LJ, he defined intention as a decision to bring about a particular consequence irrespective of whether D desires it or not. Prior to Moloney in Hyam stated if a result is seen as highly probable it can be equated to intention but in Moloney this was rejected and stated that it is a part of the law of evidence and the substantive law.
-ie bomb example – insurance, practically certain Vs will die. does D have intention to kill or is he merely reckless with respect to killing the passengers? in intention, recklessness and probable consequences , A duff (1980) – put forward the view that a consequence is only intended if its non-occurrence would be regarded as a failure. Following this approach D would not have intention to kill as if the passengers survived he would not regard his act as a failure. – but can argue there is no moral distinction between his attitude and that of the purposeful killer.
and so should be convicted of murder. intention should include foresight of VC. -In Hyam ( 1975) – HOL held a P intends a result which he foresees as highly probable result of his actions- so broader than VC but decision felt to blur distinction between recklessness and intention. ( see belfon) -in the 1980s a serious of case adopted a different definition to intention , in Moloney ( 1985)- HOL held judge does not need to define the word intention, ordinary meaning, except to explain it is not the same as foresight.
in ‘rare’ cases where a direction is needed , where the D ‘s primary purpose was not to harm V, judge could instruct jury that if the D foresaw the consequence as a natural consequence of his act they could infer that he intended it. Likely Lord Bridge used ‘natural consequence’ to convey the concept of a very high probability but the guidelines did not make that clear. The problems caused by the guidance were raised in Hancock ( 1986) – where two miners threw concrete over a bridge and killed a taxi driver. They intended to frighten /block the road.
Following the Moloney Guidelines the judge asked jury to consider 1) was the result a natural consequence of the Ds acts? 2) did D foresee that hte consequence was a natural result of his acts? the jury convicted the Ds of murder. They appealed to CA. Then crown appealed to HOL. HOL held the Moloney guidelines were misleading and quashed the conviction. Lord Scarman stated they needed a reference to probability because this was a significant factor when taking into account all the evidence to decide if there was intention or not.
He pointed out that it should be explained to the jury that “the greater the possibility of a consequence, the more like that the consequence was foreseen, and if that consequence was foreseen the more likely that it was intended. ” In nedrick( 1986) – Lord Lane, CA held that the jury were entitled to infer intention if a result was seen as VC and the D appreciated that this was the case. in those cases Lord Lane stated that the ‘inference was irresistible’ that they intended the consequence. intention and foresight were not equal.
In Woollin ( 1998). , HOL confirmed the direction in Nedrick ( 1986) that the jury are entitled to infer intention if foresight of the consequence was VC and the D appreciated that this was the case. Here, D lost his temper and threw his baby son against a wall, he died. CHarged with murder and appealed. issue was did D intend to cause GBH. D denied any such intention. The trial judge instructed that if D relaised there was a substantial risk that he could cause GBH to his son he could be convicted.
In leading judgement at HOL, Lord steyn stated that that the words ‘substantial risk’ had blurred the lines between intention and recklessness. manslaughter was substiutued. Lord Steyn confirmed that a result seen as VC , means jury can infer intention from it. he noted his approach was similar to the definition proposed by the LC in the Draft Crminal Code to the effect a P acts intentionally if a) it was his purpose to cause it, b) he is aware it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result!
Re A( twins) 2000- Ward LJ and Brooks LJ acknoweldged that the decision in Woollin was authoritative on the issue of intention and court would find surgeons intended to kill M, however little they desired it because her death would be a VC of their actions, but they could rely on the defence of necessity here. -in Matthews and Alleyne ( 2003) – CA – held that the trial judge had gone further than the law permitted when he directed that intent could be found if satisfied that the D appreciated that death/GBh was a VC to result.
RIx LJ said Woollin had not laid down a substantive rule of law but approved the evidential rule in Nedrick subject to the substitution of the words to find. So did not provide a definition of intention in terms of VC. It is submitted this decision was wrong. the words to find was a change in the approach to intention. but intention is still undefined as jury are entitled to find intention but just as equally they are not entitled to find intention.
Lord Goff- intention is being too broadened, to include cases it shouldnt should juse wicked recklessness( indifference to death) A. N orrie- that intention now provides moral elbow room for judges and see steane case, so if goes against moral conception then see is as not intending the consequence W wilson doctrinal rationlity-again based on morality cases for intention – Hyam, Moloney, Hancock, Nedrick, Woollin, Re A, Matthews and Alleyne, A duff, intention, recklessness and prob consequence -failure test A. Norrie – moral stuff steane Lord Goff- intention too wide.
Q2) The interpretation of reckless in s1 of 1971 in Caldwell was wrong, it is offensive to principle and causes injustice, the need to correct the misrepresentation is compelling – Lord Bingham in R v G * in R v G (2003) the Ds , two boys aged 11 and 12 set fire to some newspapers in a bin. It spread and destroyed buildings up to 1m pounds. Charged with reckless arson contrary to s1( 1) and s1(2) of the CDA 1971. They argued they expected the newspapers to extinguish themselves on the concrete floor and that they didn’t foresee the risk of the fire spreading.
The judge directed the jury in accordance with Caldwell (1982) recklessness in which it was held that a P is reckless in respect to destroying property, if 1) he does an act which creates an obvious and serious risk that property would be destroyed and 2) when he does the act he has not given any thought to the possibility of there being such a risk or has recognised there is such risk and nonetheless gone on to do it. – The judge explained the question of whether there was an obvious risk of property being damaged was to be assessed by the ordinary R prudent man not endowed with age or other characteristics of the Ds.
– The boys were convicted and case went to the HOL, ds argued their ages should have been taken into account when considering whether the risk was obvious. CA held bound by decision in caldwell and there was no exceptions for age/mental disability. HOL-Lord Bingham – the Caldwell decision in HOL-Lord Diplock *.
The criminal damage act 1971, replaced the Malicious Damage Act 1861. replaced ‘malicious’ with ‘recklessness’ * in a series of decisions held that recklessness meant prosecution had to prove the accused consciously ran the risk in question. in stephenson (1979)- D lit a fire in a hollow stack-schizophrenic, so did not foresee the risk like a normal person would. CA held the fact that the risk of damage would be obvious to a normal person was not sufficient to convict him. Prosecution had to prove the D himself had appreciated the risk. recklessness was limited to intentional risk taking. * but in Caldwell( 1982) the majority in HOL took the view that recklessness should not just be restricted to the conscious disregard of a recognised risk, as the meaning would be too narrow.
Lord diplock said that consciously disregarding a risk was eqaully blameworthy to failing to give any thought to the possibility of the risk. so the Caldwell formula extended the concept of recklessness to include inadvertence. * Harshness of the Caldwell decision was shown in Elliot(1983) where a 14 yr old girl with learning difficulties set fire to a shed. had been out all night. Acquitted at first instance due to age and circumstances but court allowed the crown’s appeal and holding that Caldwell recklessness sufficed.
* R v G decision at HOL- Lord Bingham – Ds appealed to HOL- Q was can a D be convicted under s1 of CDA 1971 on the basis that he was reckless… when he gave no thought to the risk, but due to age/characteristics the risk would not have been obvious to him, even if he had thought about it? = Allowed appeal and said no to Q. can’t convict. Parliament did not intend to extend the meaning to inadvertent risk taking. Recklessness required proof that d was aware of a risk of damage to property and that it was unR for him to take the risk. * Lord Bingham believed the rule in Caldwell was unjust.
A P should not be considered reckless if he genuinely didn’t perceive a risk of damage. could accuse them of stupidity but this should not expose them to a criminal conviction. Lord Steyn added that in ‘Caldwell the law took a wrong turn’. Lord Roger agreed but stated that it wasnt always unjust to impose liability on the basis of inadvertence. * justification for imposing crim liability on a P who pursues a conduct while aware of the risks is that he demonstrates he is willing to take a chance with the person or property of another.
Has chosen to increase the risk of the harm occurring. so although less blameworthy than a P who intentionally sets out to cause harm , the P who willingly and unjustifiably takes a risk with respect to another’s protected interests deserves to be punished. but a P who does not perceive a risk has not deliberately chosen to break the law and does not deserve to be punished. * Duff argues that the P of full capacity who fails to consider an obvious risk may be as liable as the P who consciously runs a risk.
A P who is unaware of a risk may not just manifest stupidity but also an attitude that reflects a lack of concern for others. ( A. Duff, Recklessness , 1980) Provided the capacity is taken into account, there can be exceptions for age/characteristics. Fletcher agrees and adds that if he has the capacity to utilise his capacity to estimate and avoid risks in the proposed conduct, then his actions can be seen as voluntary when he doesn’t do this. (G. Fletcher the theory of criminal negligence, 1971).
* Generally accepted that the extended definition of recklessness in caldwell unjustly categorised as equivalent levels of fault that are morally distinct. Criminal law recognises degrees of blameworthiness so people who take an inadvertent risk should not be punished whereas those who take an advertent risk should be. * Professor Kenny argues that the advertent risk taker is more wicked than the inadvertent risk taker and more dangerous. so from a utilitarian viewpoint needs a more severe punishment because he has knowledge that the action carries a risk of harm.
( Kenny, A free will , 1978) * Brady agrees there is a moral distinction between P who runs a risk advertently and inadvertently. Between the person who consciously runs a risk and one who fails to give thought to the risk. Has a greater degree of indifference. ( Brady JB, recklessness, negligence, indifference and awareness) * The extended meaning in recklessness failed to acknowledge this distinction, resulted in criminal responsibility for 14 yr old in Elliot and 15 yr old in Cole.
This was clearly contrary to principle and offensive and unjust. * The House approved the definition of recklessness in 1989 Draft criminal code ( Law comm no 177) * decision in R v G applied in Cooper (2004) Difference between intention and recklessness lacks any sense – Intention is where you deliberately intended to cause harm of some kind, and set out with the specific purpose of doing that. Recklessness is where you knew that your actions ran the risk of causing harm, but decided to carry on with them anyway.
The other possibility is criminal negligence, which is where you should reasonably have known that your actions could have caused harm. In what circumstances does the criminal law impose a duty to act to assist other individuals? -lianility for omissions -duty to act -criminal law is concerned with prohibiting certain forms of behaviour. there is no general duty to act in English law this was confirmed by Lord Diplock in Miller. However where there is a duty to act a failure to act will incur liability. There are 5 situations where the omission will incur liability.
the law has developed but still some uncertainties. Lord diplock in Miller held that a person who accidentally creates a dangerous situation is under a duty to call for help/make efforts to prevent it. – evans LCJ same thing. if fail to do some can amount to ar of an offence. Fagan- duty to act evans- quote Lord diplock – quote ashworth- autonomy santana- needle case, Kay J assumed the MIller principle applied to all situations and where someone creates a danger, and exposes another to a RF risk of injury which materialises there is evidential basis for the AR of AOABH.
2) duties by omission 5 situations. Ie special relationship Children and Young P Act 1933 s1 cant neglect child in a manner like to cause injury or ill health- 10 yrs imprisonment. Gibbins and Proctor- rare case of murder by omission. guilty of murder. not clear if one spouse has duty to another. instan coleridge J, Adomako-HOL held where GNM due to breach of duty, the normal principles of negligence apply. upto jury to decide if hte breach of duty was a serious departure from the proper standard of care as to amount to GN and to give rise to Crim liability.so plan: miller, evans, fagan, santana case omissions miller, evans, fagan, santana, omissions articles :
Ashworth the scope of criminal liability for criminal omissions -a community can be seen as a netwrok which supports eachother, there is a case for encouraging cooperation at the minimum level of the duty to assist. social cooperation is good for the realisation of individual autonomy , each member of society is valued intrinsically, element of emergency which heightens the social obligation , can limit duty to assist those in peril S.
Freeman agrees- promotes a common G. Hughes criminal omissions- compelling sb to serve another, creating a fear of prosecution, feasibility f imposing liability on a crowd of spectators, how much danger are u expected to risk s and dobinson -stranger/neighbour didnt have a duty family and those who assumed a responsibility did. can have a fien for failing to act. Hart and honre principles of causation – a cause is sth which intervenes in teh course of events which would normally takes place.