For example, does a doctor who gives contraceptive advice and pills to an under-age girl out of a good motive commit the offence of aiding and abetting unlawful sexual intercourse with a minor? Such was the case of Gillick-v-West Norfolk and Wisbech AHA [1985]. It was held such a doctor would not be committing such an offence unless there was more than proof that the doctor knew for certain that his conduct would assist the commission of the offence. For this reason, it may be seen that “unless a person acts for the purpose/with the aim of producing a consequence, they lack an intention to produce that consequence even if it is known to be factually or even logically inseparable from the consequence specifically aimed at”. What about the case when a doctor transfers their only life support machine from one patient to another patient in order to ensure that the stronger patient survives? Does the doctor intend to kill the weaker patient? No, not necessarily. This is because the doctor acts out of necessity and attributing intention to a doctor in such cases is ethically incorrect since the doctor will only act so long as it is in the interests of the patient. It is in the interests of the stronger patient to survive and receive life support, whereas the weaker patient is likely to die even with the life support. Besides, people would not want the doctor to be tried in a court of law for such an act. In the case of Steane [1947], the D’s conviction for doing acts likely to assist the enemy with intent to assist the enemy was nullified because where a person’s behaviour shows that he had either a lawful intention (to protect his family) or an unlawful intention (to assist the enemy), it was up to the jury to establish the correct intent. The D’s motive in this case was to protect his family by helping the enemy.
There is also uncertainty about the meaning of intention with respect to risk-taking. In the case of Hancock and Shankland, the defendants were miners who were on strike and they threw a block of concrete into the path of an oncoming car, killing the occupants of the car. Should they be guilty of murder? According to their foresight (evidence from which direct intention may be established-Criminal Justice Act 1967, s.8 (b)), it may be argued that they knew quite well “that in doing that there was a high degree of probability” (trial judge in Walker and Hayles (1990) that the victims will be killed. The defendants nevertheless argued that their intention was only to frighten them in order to prevent the people of the car from breaking their strike. “Why should the jury prefer to find that death or serious injury was intended, in the absence of any other evidence of intent, when the evidence relied upon (throwing concrete into the path of strike-breaking miners) equally supports this inference and the defendants’ story (“We did it to frighten”)? (W. Wilson)
Recklessness is a lower level of mens rea than intention. It is also different from intention in the sense that the “reasonableness” requirement of objective recklessness allows for value judgments to be taken into account when prosecuting ascertaining guilt. For example, a decision might be taken not to prosecute a doctor who performs a high-risk operation. Similarly, one might argue a person who disobeys a traffic signal is reckless if he does so in order to get home quickly in time for tea, but it is not reckless if he does so in order to get a seriously ill person to hospital.
In the case of Parker [1977], the court ruled that even though the D did not think about the consequences when he damaged the receiver in the telephone box in a heat of the moment, he was still guilty of criminal damage because not only are people reckless because they’re aware of a risk, but also if “he closed his mind to the obvious fact that there is some risk of damage resulting from that act”.
The case of Cunningham seems to show that recklessness presupposes that knowledge of risks only arises through a course of psychological reflection or thought. However, there are problems with this. This is because a person does not have to be aware of the consequences to be subjectively reckless. The person concerned only needs to fall short of their own normal level of carefulness or competency. Also because a person may fall short of thinking while doing something risky, such as driving and the person concerned may hold themselves responsible if harm results. Secondly, we know of dangers without thinking about them, such as fire and electricity, which requires no psychological reflection or thought. So, if the telephone receiver in Parker was replaced by Parker’s own mobile phone he would dare not have “smashed the phone down upon it without thinking”.
To conclude, intention and recklessness are fundamental aspects of English criminal law because they are necessary to differentiate the guilty from the innocent. Nevertheless, there are problems about the appropriate definition to be attributed to these words. The only thing we can hope for is reform in the form of Private and Public Member Bills.
Razur Rahman = 14/11/04.
Criminal Law Tutor = Katie Sutton.
W. Wilson, Crim Law: Doctrine And Theory, page 125, 2nd edn, 2003, Longman publishers.
W. Wilson, ibid, page 136.
W. Wilson, ibid, pg 136-137.
