The Law Commissions Draft Criminal code

Over the past years, the mental elements of intention, recklessness and negligence have been an issue of controversial significance among judges, legal scholars and the society in general. It is highly probable and proclaimed that the main elements of mens rea (intention, recklessness and negligence) are distinct in their meanings. However, some academics tend to differ with this notion stating that these elements are interrelated making it possibly difficult to distinguish between them. This in turn, has made the appropriate meaning and understanding of these three concepts ambiguous and confusing.

Consequently, this essay will attempt to first examine the various definitions of intention, recklessness and negligence stating their various forms; subsequently, giving an in depth analysis into each of the elements while stating the controversy besieging them and finally analyse reasons concerning the uncertainty surrounding the appropriate meanings to be attributed to these elements. The magnitude of the mens rea in crime should not be underrated as it is the fault element of an offence that differentiates an accident from a crime and murder from manslaughter.

Therefore, the concept of intention as it is employed in criminal law can be defined prima facie as the purpose towards the effect of a person's action. 2 A comprehensive definition of this concept can only be given while analysing the two major types of intention. Direct intention as defined by Professor Anthony Duff is an individuals aim, desire or purpose; were that individual would consider his action a failure if the consequence of his action did not occur3, this is evident in the case of R v Steane4 Alternatively, Indirect or oblique intention is harder to define as a range of theories surround it.

Hence, English courts over the past 3 decades have battled with the uncertainty as to whether the defendant intends an outcome for his actions when he supposes that it is virtually certain or highly probable. 5 This in turn poses a problem as to the degree of probability required before an undesired consequence is said to be intended, even though the defendant has foreseen it.

6 This is well represented in the case of DPP v Smith7 and Woollin8 respectively; In Smith, the law lords stated that there was an irrefutable presumption of law that a person foresaw or intended the 'natural consequence' of his acts which were purely objective. 9 However, this law was overruled by Section 8 of the Criminal Justice Act 196710 making Woollin the leading case. In Woollin, Lord Steyn stated that the jury is not entitled to infer intent unless the defendant appreciated that the consequence was a virtual certainty.

Moreover, the courts and several academics assent that foresight of a consequence is not intent rather it is an evidence of intention as in the case of R v Moloney. 12 Nevertheless, scholars such as Lacey A are of the opinion that foresight can be equated to intention13 as illustrated in Matthew and Alleyne14. Due to this, criticisms have risen as to the meaning of intention and a reform proposal has been drafted by The Law Commission under Clause 18(b) of The Law Commissions Draft Criminal code of 1989.