The Court of Appeal Analysis Paper

"The fact that the risk of some damage would have been obvious to anyone in his right mind in the position of the defendant is not conclusive proof of the defendant's knowledge… 16" This confirming that the jury who originally convicted the defendant were misdirected and that the conviction could only be upheld if the defendant realised the consequences of his actions, clearly in this case he did not so the Court of Appeal had no option but to quash the conviction.

In the case of Stephenson17 it was established that Stephenson suffered from schizophrenia and that this will have distorted his ability to assess the potential risk of lighting a fire in a straw stack. Geoffrey Lane L. J. concluded, "We wish to make it clear that the test remains subjective… The schizophrenia was on the evidence something which may have prevented the idea of danger entering the appellants mind at all18. "

This follows the case of Cunningham and takes into account the person's state of mind at the time they committed the crime, thus following the proposal that the courts are following subjective assessments to establish mens rea. Lord Diplock, in the case of Caldwell, decided that the subjective test stated in Cunningham was too narrow and came to a new conclusion regarding recklessness. He decided that a person could be convicted of being reckless even if no thought was given. In his judgement, regarding section 1(1) of the Criminal Damage Act (1971), he said that a person is reckless:

"If (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 it19. " This is an extension of the definition stated in Cunningham because under the Caldwell definition a person can be liable if they did not realise there would be a risk involved and is described as unconscious risk taking which is an objective approach.

Commentators have said on the matter that: "Caldwell now occupies a somewhat isolated position in English law20. " On the same day as Caldwell the House of Lords ruled on the case of R v Lawrence21 which, concerned reckless driving under the Road Traffic Act (1972)22 in this case Lord Diplock directed the jury to establish whether, "He had created an obvious and serious risk23. " This, therefore, means that on the same day the House of Lords established two slightly different definitions that constitute recklessness.

The first in Caldwell that the risk must be "obvious" and in Lawrence the risk being "obvious" and "serious. " In the case of Reid24 Lord Goff recognised that there might be a 'loophole' – "giving thought to the possibility of a risk, but concluding there was none. " This would therefore give consideration to the jury having to establish the state of mind of the defendant. There are problems in establishing "to whom the risk must be obvious. 25" 331 In recent cases the jury have followed the 'reasonable man' test.

For example, in the case of Elliot v C (a minor)26, a fourteen-year-old girl was originally acquitted but, it was said that the jury were misdirected and the High Court said that they had to follow the reasoning in Caldwell and she was convicted. This showing that although the courts are trying a more subjective assessment of a person's state of mind the courts are still more inclined to follow the objective tests of mens rea. This, establishing that the courts may, in cases of minors, consider the 'reasonable man' relative to age or mental capacity, but so far these suggestions have failed.

Even in the recent case of Coles27 the courts would not accept a psychologist report which stated that D, a fifteen-year-old, was of below average intelligence. Thus English Legal doctrine still uses both objective and subjective tests when establishing mens rea in recklessness. Next to look at is intention and Hyam28 is the first case to be considered, in this case the jury were directed as follows: "If you are satisfied that when the accused set fire to the house she knew that it was highly probable… then the prosecution will have established the necessary intent29.

" This is based on establishing what Mrs. Hyam's state of mind is and commentators have said: "The question always is 'what is the accused subjective state of mind? 30" However, in the case of Moloney31 the conviction was overturned by the House of Lords who stated that if it never crossed the appellants mind that he may kill his stepfather then he was entitled to be acquitted. Lord Bridge of Harwich said: 291 "Whatever his state of mind, the appellant was undoubtedly guilty of a high degree of recklessness.

But so far as I know, no one has yet suggested that recklessness can furnish the necessary element in the crime of murder32. " This supporting the proposal that the courts are turning to more subjective assessments of the accused state of mind. In the case of Nedrick33 Lord Lane C. J. said: "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 as a result of the defendant's actions and that the defendant appreciated that such was the case34. "

This concludes that foresight of probability is not sufficient for murder, and that the accused must foresee death or serious bodily harm as a "virtual certainty. " The House of Lords in Woollin35, in order to reconcile it with Nedrick rejected the decision of the Court of Appeal, and gave a verdict of manslaughter. Commentators have said: "Where a jury is satisfied beyond reasonable doubt on the evidence that D foresaw death or serious injury as virtually certain to result from his actions, this amounts to intention… 36" This concludes the circle of change which occurred in establishing the intention of a defendant.

It can be seen that, as the jury are asked to establish D's intent, they represent the "reasonable man" and that the courts have returned to an objective assessment of mens rea in crimes requiring intention which disagrees with the given 316 proposal that the courts are shunning this assessment. Commentators have given a reason for this change: "At the actual level of doctrine, it has been in part due to the influence of liberal legal academics such as Williams and Smith and Hogan who have pushed the subjectivist standpoint of responsible individuals against less liberal 'objectivist' standards. 37

It would be appropriate to quickly consider dishonesty as a form of mens rea and the two-stage test established in Ghosh38 this confuses the matter further because the courts are considering both an objective and subjective approach. The first part of the test considers, "The ordinary standards of reasonable, honest people," and secondly that, "Was that which D did believed by D to be dishonest39. " Lord Lane said this was necessary, "to avoid two extremes40. " This brings about the conclusion that in cases of dishonesty, particularly involving theft, the court is neither moving towards nor away from objective tests of mens rea.

The final problem is that of convictions based on strict liability where: "An offence is regarded… as one of strict liability if no mens rea need be proved as to a single element in the actus reus41. " This also causes problems with the given question because it shows that the courts do not have to consider an objective or a subjective approach and that no assessment of the accused mental state is needed to secure prosecution. To conclude it can be said that the courts are neither moving towards subjectivism or objectivism.

In cases of negligence it seems the courts are more in favour of the objective assessments regarding the reasonable person. When establishing whether a 156 defendant was reckless or not there are two leading definitions, one of which is objective and the other subjective. In establishing necessary intent the courts have changed their thinking many times and have not arrived upon a secure definition of intention although it would seem that they are favouring the objective approach at present.

Instances of dishonesty and strict liability pose problems to the given statement because while the dishonesty test has two stages, one of which is objective and the other subjective, strict liability need consider neither. Regarding the courts position on the matter it has been said that: "The courts… have tended to pursue more variable approaches, upholding subjective principles on some occasions and propounding 'objective'… arguments on others42. " So it can be concluded that the courts are not really favouring one approach over another and still use both in determining mens rea.