Tom Pacey Criminal Law

Explain what is meant by intentional, reckless and negligent behaviour. Ought such terms to be defined as a matter of law, or left to the jury as a matter of fact?

"Intentional" can only be used to describe the actions of a man in the following circumsances: firstly, he is acting as an independent moral agent – that is to say he is able to exercise control over his conscious actions without interferance by an external force or a condition which renders him unable to exercise any control; secondly, that the consequences of his actions are forseeable to a reasonable man; thirdly, he desires the criminal outcome and that desire is the reason for his action (but this adjective can also be used to describe a criminal outcome which the man does not desire but appreciates will certainly occur as a result of his actions in the normal course of events. )

"Intentional" can not always be said of deliberate actions taken under duress. In the case of Steane the Court of Criminal Appeal held that the defendant's conviction should be quashed because his intention was not to assist the enemy but to save his family; an intention ulterior to the actus reus so there was no intent constituting the mens rea. Glanville Williams has argued that duress would have been a more appropriate defence than of lack of intent, because the defendant's actions were surely deliberate.

In murder cases the intent necessary for the mens rea is greater than others. In the case of Moloney, the House of Lords held that a jury should only be directed to consider whether death or really serious injury was a natural consequence of the defendant's actions, which he foresaw. In Woollin, the Lords held that if the defendant foresaw the killing as a virtually certain consequence of his actions there is sufficient intent, but if he thought only that the killing was a potential consequence the jury is not entitled to find the mens rea. "Reckless" would be used to describe an offence which did not involve intent but a choice to take an unreasonable risk.

The case of Cunningham established in english common law that the defendant is guilty of recklessness only if he believes others may be harmed by his actions and it is unreasonable for him to take those actions having forseen the danger. It is sometimes described as "subjective recklessness" because it depends upon a value-judgement of the facts. "Objective recklessness" was established by the case of Caldwell. Lord Diplock stated that the defendant is reckless a) if he does an act which in fact creates an obvious risk that the property will be destroyed or damaged and b) when he does it he has either not given any thought to there being any such risk or has recognised there was some risk but has gone on to do it. This test has been criticised and was the reason for the unsatisfactory outcome in Elliott v C.

It was held that even though the child in this case could not have been expected to see the distruction they caused as an "obvious risk" the test requires the risk to be obvious to a reasonable man, rather than the defendant in question. Negligent behaviour is different from reckless behaviour primarily becuase foresight is not required. It is merely necessary that the defendant acted unreasonably whether or not in ignorance; if a reasonable person would have forseen the risks the defendant took and then not taken them, negligence has occured. Moreover, if the defendant's conduct falls well short of a test of reasonableness, it can be described as grossly negligent. There are certain difficulties in ascertaining negligence, for example where the defendant is of very low mental ability.

In the case of Reid there are, however, dicta to the effect that reference should be made to the abilities or condition of a particular defendant. Whether such terms ought to be defined as a matter of law may well depend upon the aims of the government or the judiciary. If the overriding aim is to provide citizens with clarity of the law, as is demanded by the ECHR, then fairly rigid definitions may be necessary. This has the obvious advantage of allowing citizens to regulate their behaviour based upon the proscribed consequences of their actions. If a jury were to decide how each term applied to an individual case, citizens could never be sure what the consequences of their actions may be.

On the other hand, it is perhaps possible to imagine a system which allows fixed parameters to be established in law, providing citizens with an approximate prediction of consequences but still allowing the jury to impose those consequences with reference to the individual circumstances of the case before them. Because cases can be factually unique and very complex, I would argue that it is unjust for the law to impose arbitrary definitions for terms which are, by their very nature, subjective. Moreover, terms like "intentional" are within the limits of common sense and can reasonably be left to the individual judgement of jury members. It is in this way that I believe justice is most likely to be done, on a case by case basis, even taking account of the fact that it may give rise to inconsistency.