The law of Mens rea

Mens rea can be literally translated to mean 'guilty mind,' and it, "Refers to the mental element necessary for the particular mind… 1". This is not some abstract mental process; it refers to specific words in the charge or indictment. There are two opposing views on the way in which mens rea of the accused has been established: the subjective approach and the objective approach. The two often come into conflict in court when deciding the accused mental state and there has been much criticism surrounding the way the courts have dealt with this problem. One commentator said that:

"Subjectivism became the orthodox academic theory of mens rea earlier this century2. " It has also been said that: "Subjective tests heighten the protection of individual autonomy, but they typically make no concession to the principle of welfare… of fellow citizens3. " Thus commentators are undecided about the proposal stated in the above question. Generally, recklessness means taking an "unjustified risk", however, its legal definition is not quite as straightforward or the same as its normal meaning in the English language. Careful direction as to its legal meaning has to be given to the jury, so as to avoid miscarriages of justice.

However, the word had produced uncertainty because there is no statutory definition and judges have produced two meanings of recklessness for different crimes. It is often difficult for the prosecution to prove that D intended to commit the crime in question and for many offences, it is therefore not necessary to show a high degree of blameworthiness; it is sufficient to prove that D has been reckless as to whether the crime has been committed. The original definition for recklessness was that in R v Cunningham, which concerns Section 23 of the Offences against the Person Act (1861).

In this case recklessness is purely subjective regarding the person's state of mind, Byrne J. in his judgement directed the jury to this definition of recklessness: "(1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not4. " This would mean that the accused must have realised that he was going to cause harm and not just that the risk would have been obvious to anybody else in that situation. For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk.

He must realize that there is a risk involved but if he continues to carry on with his conduct, then he is reckless. The defendant was charged under S. 23 Offences Against the Person Act 1861, which involves maliciously administering a noxious thing so as to endanger life. The trial judge directed the jury that malice was the equivalent to wicked and the Court of Appeal quashed the conviction – maliciously means intentionally or recklessly and the latter word required proof that the defendant had had some foresight of the risk and yet had still deliberately gone ahead.

On appeal, Geoffrey Lane L. J stated that: "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… 5" 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.

This was supported in Stephenson (1979) The trial judge directed the jury that the defendant was reckless if he 'closed his mind to an obvious risk' but the Court of Appeal quashed the conviction with Lord Lane firstly looking at the recommendations of the Law Commission: a person is reckless if, a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.

"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 all6. " 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. MPC v.

CALDWELL generated a new and much wider test for deciding cases that have an element of recklessness in them. He intentionally started a fire at the hotel, which caused considerable damage, and in turn, Caldwell was charged with arson. The offence is defined in the Criminal Damage Act 1971, as requiring either intention or recklessness. On the facts, there was no intention, and, on the issue of recklessness, Lord Diplock stated that the definition of recklessness in Cunningham was far too narrow for the Criminal Damage Act 1971.

Lord Diplock, in the case 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. For that act, Diplock said, recklessness should not only include the Cunningham meaning, but should also elaborate upon this. Diplock said that a person is reckless as to whether any property would be ruined or damaged if:

Either he does an act which in fact creates an obvious risk that property would be destroyed or damaged, and/or when he does the act he either has not given any thought whatsoever to there being any such risk or that he has actually become conscious of the fact that there was a substantial risk involved, but has gone ahead nonetheless. Consequently, there are actually two potential ways in which Caldwell recklessness can be proved. The first manner is highly similar to the old Cunningham test: "he does an act which in fact creates a risk and has recognized that there was some risk.

" The second way in which that Caldwell recklessness can be proven is the important extension to the actual meaning of recklessness: "he does an act which in fact creates an obvious risk and he has not given any thought to the possibility of there being any such risk. " This is an extension of the definition stated in Cunningham because under the Caldwell definition a person can be liable if they did not realize there would be a risk involved and is described as unconscious risk taking which is an objective approach.