The current legal definitions

The current legal definitions of intention and recklessness are not entirely successful in ensuring that those, and only those, who are deserving suffer punishment for their wrongdoing. Discuss with particular reference to murder and criminal damage. The mens rea of murder is known as 'malice aforethought'. This means that the accused must have either intended death or GBH. As the current law stands, there are two different types of intention, which may form the mens rea of both fatal and non-fatal offences. The first type is direct intent and is viewed as the ordinary meaning of intent.

It is when the accused desires the death or serious harm to occur. For instance if a person stabs another several times with a knife, the intention here would be direct. What if however, a person does not desire a consequence, but knows that if he does a particular act then that consequence is very likely or even inevitable? This is known as oblique intent. In the past the reasonable person must have foreseen the possibility of the consequence occurring. In DPP v Smith 1 The House of Lords said that it did not matter what the defendant had in his mind at the time, or even if he had anything in his mind.

The question was "not what the defendant contemplated, but what the ordinary man or woman would in all the circumstances of the case have contemplated as the natural and probable result" of his actions. This test was overturned in s. 8 Criminal Justice Act 1967, which established a subjective test and this is now the law. By abolishing this and replacing it with the subjective test. This means that the accused himself must have foreseen serious harm or death, therefore the jury can take into account his capabilities of foresight and convict him accordingly In response to the above statement, s.

8 helps to ensure that the current definition of intention punishes only those who are deserving. It must be proved that D himself actually had foresight that death or serious harm might occur. It is the degree of foresight, which creates problems in the courts. Questions which arise are; does foresight of a consequence equal intention? What degree of foresight would be required? The application of oblique intent to murder is best illustrated with a case. In Woollin2, D lost his temper and threw his 3-month-old baby on to a hard surface. He was charged with murder.

He argued that he had not intended to kill or do serious harm. The prosecution did not try to prove that D wanted to kill his baby son, but alleged that he must have realised that what he was doing was virtually certain to result in serious injury. However the trial judge directed o the jury that D was guilty of murder if he realised that there was a substantial risk that he would cause serious injury to the child. The defence appealed on the basis that the trial judge misdirected the jury by using the term 'substantial risk' and thus widening the mental element of murder.

The Court of Appeal upheld D's conviction and denied that a Nedrick3 "virtual certainty" direction was necessary. The House of Lords however, decided that the precise terms of the Nedrick direction should have been be given and quashed Woollin's murder conviction and substituted it with one of manslaughter. In Nedrick, D had a grudge against a woman. He ignited her house with paraffin and a child died in the fire. He admitted he caused the fire but said he did not intend to kill anyone. He was convicted of murder following a special direction given to the jury.

The special 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 find 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. " This is the direction must be used when the case involves oblique intent. It means that death or GBH must be a virtual certainty to the defendant.

Oblique intention and direct intention are states of mind are equally blameworthy. A popular example to explain this is where a person to claim life insurance, plants a bomb on a plane about to take off. He cannot claim he is not guilty of murder because he did not desire the deaths of the passengers, it were an inevitable consequence of his action. If the current law only allowed direct intent to form malice aforethought, such a person, who clearly deserves the label of a murderer, would not be convicted of murder.

The direction also helps to ensure that those guilty of only manslaughter are protected from being labelled murderers. The direction means that it is wrong to suggest that D's knowledge of death or GBH as a substantial risk of his acts, or any other degree of probability, would do as conclusive proof of intent to kill, thus attempting to eliminate the less culpable state of mind, recklessness in murder. As a result, those who were reckless in causing death are not convicted. For example, a person who foresees that death or serious injury is 'highly probable' and still, does the action, cannot be guilty of murder.

Thus the law helps ensure that only those who deserve the murder conviction get it. This is very important, as murder is the most serious of crimes and carries a mandatory sentence. The distinction must be retained, as society will not respect a legal system, which does not take seriously the distinction between manslaughter and murder. As well as highlighting the positive role of the Nedrick direction, it is important to discuss the trouble it might cause juries. Juries are entitled to find intention if they feel sure the accused was virtually certain of GBH or death.

The concept of "virtual certainty" continues to cause problems. Foresight of "high probability" is not sufficient for oblique intent to kill, but it is not clear at what point, "high probability" becomes "virtual certainty". What if the jury convict a person of murder when it was only highly probable that GBH would occur? Some argue that as juries have a choice, it may lead to inconsistencies and so, cases involving risk-taking, no matter how extreme, should be left to the law of manslaughter. Another fault element is recklessness. There is objective recklessness and subjective recklessness.

The leading authority for the subjective approach is Cunningham4. The defendant removed a gas meter from a house to steal money from it. He left gas leaking from the pipe. He was convicted of maliciously administering a noxious substance so as to endanger life contrary to s. 23, Offences Against the Person Act 1861. The question was whether the defendant had the required 'malice'. The Court of Appeal quashed the conviction as malice simply requires the accused to foresee the particular harm and nevertheless has gone ahead to take the risk.