Under the criminal act

Under the criminal act, intention can be described as an, "offence in which the requirement of mens rea is satisfied only by proof beyond reasonable doubt that the defendant had the intention of committing the actus reus. "1 Recklessness can best be summed up by the defendant being unaware of the foreseen consequences of his actions or knowing the risk but still continues to go ahead with it. The case of R. v Nedrick can be easily explained by the Nedrick test which provides us with two questions: 1.

How probable was the consequence which resulted from the defendant's voluntary act? 2. Did he foresee that consequence? 2 Nedrick knew that there were people in the house when he lit the house on fire, aware that there was a large possibility that the people would not escape alive. He was found guilty under intention but appealed the conviction stating it was recklessness because he did not have the intention to kill but he was aware of the possibility that there could be victims due to his course of action but still carried out his action.

His appeal was granted, the judge later explained that the jury was misdirected by the following statement given by the judge, "it is not necessary to prove an intention to kill; the Crown's case is made out if they prove an intention to cause serious injury – that is sufficient… There is, however, an alternative state of mind which you will have to consider. If when the accused performed the act of setting fire to the house, he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it-desire to bring that result about-he is guilty of murder.

If you are sure that he did the unlawful and deliberate act, and, if you are sure that he was in his state of mind, then, again the prosecution's case in the alternative of murder would be established. "3 The case of R. v Woolin, the defendant claimed he did not have intention but it was recklessness. If it had intention, he had the mens rea to kill the baby by throwing the baby, but instead he threw the baby to make it quiet. The jury would have to classify this under recklessness because under this rule one is unaware of any foreseen consequences.

Also the judge did not use the Nedrick test by allowing the jury to make their own decision, instead he guided the jury by, "directing them that they could not infer that the appellant had intended to do the child really serious harm unless they were quite sure that serious harm had been a virtual certainty from what he was doing and he had appreciated that was the case. "4 He was found guilty of having intention but the decision was appealed stating it was recklessness, the appellants argued that the judge had basically guided them in making their decision.

The appeal was not granted. By dividing intention and recklessness, it provides a large gray area in which it is hard to decipher a clear intention thus just making it more confusing for the decision makers. Intention is narrowly defined, anyone with the intent to kill, this does not allow the prosecution much to work with if there is not much evidence or facts. Recklessness on the other hand has a large gray area. Although Nedrick set the house on fire and it wasn't his intention to kill anyone in the house, he was aware of the foreseen risk but still continued.

It would be wrong to say that he was not guilty even though he knew the consequences of his results. Allowing him to use to the defence of recklessness allowed him to appeal his conviction of murder and it be moved to manslaughter. This allows many people to commit serious heinous crimes and hide the defence of manslaughter while anyone with common sense would try them under murder. But it can also be argued that if someone where to react out of anger; for example someone had been abused for years and then one day they just lost it and killed someone, would such a reaction be considered a mens rea?

They could argue that they were not in the right state of mind and it was recklessness. Under certain cases this would be acceptable. Any person with the average common sense to realize that the end result would be someone being killed or the possibility of someone being killed, whether or not it was their intention; should be tried for murder. It is evident that Nedrick's punishment was lessened because of this. Criminals that commit serious heinous crimes should be punished accordingly.

There should be a clear definition of recklessness such as someone with common sense was unable to predict what was to follow after their actions, only then would they be able to use recklessness. The Caldwell test must be done away with because it completely contradicts itself, it asks, "When he does the act he either has not given any thought to possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it.

"5 If someone who has common sense has acknowledged there is risk but still continues; it should be intention. The term recklessness and intention have to be carefully analyzed and a clear and concise definition is needed. The Nedrick/Woolin cases have clearly identified that a serious and terrible crime was committed by both but by a slight shift in understanding intention and recklessness between the two can create such a different ruling. This must be avoided in future cases so that the punishment can be accordingly fit with the crime and wrongful convictions do not occur.