In Moloney[4], a stepfather and son, in a state of inebriation decided to see who would be able to pull out a gun first and shoot. The son managed to do so and ended up shooting his father dead. He was tried and held guilty of murder as his intent was inferred from the fact that he foresaw the consequences of his act (even if they were undesired). However, in his appeal to the House of Lords, it was held that while death or serious harm may have been the obvious result of the defendant’s actions, the defendant did not intend to murder, as he did not foresee the consequences. From Nedrick and Moloney one can arguably hold that probability of a lesser degree than virtual certainty cannot be taken to be direct intent. The decision in Hancock[5] made an addition to this principle to the effect “that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.”
Contrary to the directions given to the jury in Nedrick and Wollin, in Matthews[6] the jury was directed to find the necessary intent in the defendant’s actions, provided they were satisfied in the case that the defendant appreciated the virtual certainty of the death of the victim being the consequence of the act. In the appeal, the contentions put up by the appellant were rejected and the appeal was dismissed. First the argument of the danger of the jury being biased due to the inhumane treatment meted out to the victim was ruled out as the judge had directed to jury in this regard and also that the jury acquitted C from the charge of murder. The emphasis laid by the judge on the failure of the appellants to rescue the victim was considered justified even though it moved away from Woollin, as this failure was considered integral to the case with regard to the appellant’s intention and also because there was no direction for this situation stated in Woollin.
Judges often try to avoid defining ‘intention’ as a term and do not direct juries to understand it differently from its ‘normal meaning’. This is often referred to as the golden rule: that further direction to a jury is unnecessary except in cases where the sole evidence of the defendant's intention is to be found in his actions and their consequence to the victim. One explanation offered for this is that by steering clear of giving lengthy explanations and directions, the judge does not confuse the jury. Using ‘normal’ definitions of terms also ensures that the law reflects societal understanding of blameworthy behaviour.
Recklessness is of broadly two categories. In crimes where the defendant is aware of the risk of an act and its likely harmful results and he still unreasonably commits the act, the defendant is held to be liable on the basis of (Cunningham) recklessness. Two distinctive features of this type of recklessness are: firstly, regardless of whether the defendant thought the consequence of his actions had a high probability or not, as long as he was aware of a potential risk, the defendant would be criminally liable. Secondly, being ‘aware of the risk’ would not be judged on the basis of whether a reasonable ordinary person could foresee or would be aware of such a risk. In Stephenson[7], the defendant, a schizophrenic patient, lit fire to a haystack and was not held guilty as the he was held not to be capable of foreseeing the risk. In Parker[8], the defendant after having had a bad day entered an out-of-order telephone booth. Due to frustration, the defendant rammed the phone down twice and was convicted on charges of criminal damage. The Court of Appeal held that the appellant was fully aware of the condition of the telephone booth, the material it was made of and the degree of force that the defendant exerted. When the defendant alleged that he had not been aware of the risk posed by his actions and that causing damage was not his intention, the court extended the definition to include in its ambit a situation when a defendant was deliberately closing his mind to the obvious. This state of mind was equated to the defendant being aware of the situation. The appeal was consequently dismissed.
Another definition of recklessness used to be that of Caldwell recklessness, the application of which was later discontinued by the House of Lords. Caldwell recklessness defines recklessness as the failure to consider an obvious risk that a person is aware of. It differs from the Cunningham recklessness to the extent that it includes even those who may not have been aware of such a risk posed. In Elliot v C[9], a 14-year-old mentally handicapped girl lit fire to a shed and was convicted on the grounds that she failed to see the obvious danger of lighting fire in shed. In R v G and R[10], two boys (11 and 12 yrs old) decided to picnic outdoors and afterwards left burning newspapers under a wheelie bin. There was damage to property of over 1 billion pounds as a consequence of a fire started by the boys and the children were convicted of arson on the basis of Caldwell recklessness. In the House of Lords, this decision was overturned and a departure from Caldwell was observed due to the following reasons. Firstly, it was believed that it was important to consider the state of mind of the defendant before conviction and Caldwell recklessness sometimes did not allow this. Secondly, the definition led to some ‘obviously unfair decisions’, which could be seen from the fact that they opposed the sense of the juries deciding these cases. Further, there was also a multitude of academic criticism for Caldwell recklessness, which the Lords felt should not have been entirely ignored. Lastly, and most importantly, it was held that the interpretation of ‘reckless’ in Caldwell was incorrect. ‘Reckless’ was construed to mean that mens rea required to be read into every crime, following previous dicta of courts where all criminal liability required an existence of mens rea. However, it was held that the true interpretation was to simply replace maliciously with the word reckless and the Cunningham definition of recklessness was to follow.
Caldwell is a good example of a change in the law due to a narrowed approach to its interpretation. Circumstances in particular cases forced an alteration of the law as it stood, and this (performance of a law in the real world) is the best test for a new law.
There are other circumstances that have called for further directions from the law as well. There are cases involving defendants who were under the influence of alcohol or other substances and may not have been in a state of mind so as to be able to have a specific purpose for their actions or be able to foresee the consequences or risks of their actions. Would this then amount to not being criminally liable in the courts (following R v G and R or Woollin)?
The case of Majewski[11], where the defendant was convicted of assault, shows the effect of intoxication on intent and recklessness. During the appeal the defendant put forth a case of no culpability as when the assaults were committed he was acting under the influence of drugs and alcohol, to such an extent that he did not know what he was doing and that he remembered nothing of the incidents that had occurred- he did not have mens rea and was therefore not liable. The House of Lords held that voluntary intoxication would exculpate the defendant only if the charge was for a crime that required proof of a specific intent. Specific intent of a crime was defined as one of “ulterior intent”, intent where the mens rea element extends beyond the actus reus. Lord Simon[12] explained this as the mens rea that required a “purposive element”, by which differentiates meant intention from recklessness. The appellant was convicted for assault for which a basic intent of committing the actus reus is enough to constitute the necessary mens rea.
In R v Heard[13], the appellant while very drunk exposed his penis and rubbed it on the thigh of a police officer and was consequently convicted of sexual assault. Here the distinction between basic and specific intent required for the crime was difficult to express. However, the House of Lords held that the intentional character of touching could not be denied and its sexual character (while it may need objective judging in a different case) had absolute clarity in this case. The effect of alcohol was limited to causing mere lack of inhibition of a lapse of memory. It was held that if one willingly put themselves under the influence of alcohol and drugs, the state of mind then is not a defense. Lord Elwyn-Jones stated it that “Acceptance generally of intoxication as a defence (as distinct from the exceptional cases where some additional mental element above that of ordinary mens rea has to be proved) would in my view undermine the criminal law …”.
All these cases points to the blurring lines between intent and recklessness, and the mens rea required for each when considering effects of an intoxicant on an individual. While in Majewski, it was held that basic intent could be inferred and the defendant could be charged with assault on that basis and in Heard intoxication was not seen to effect intent at all. These decisions can be contrasted with Woollin, where the defendant was acquitted of the charge of murder, as he was not seen to be capable of formulating the specific intent required for murder due to his intoxication. That of manslaughter substituted the charge of murder.
In Hardie[14] the defendant was convicted for recklessly setting the house on fire under the self induced influence of Valium and endangering lives within, a crime that did not require specific intent. The defendant appealed to the House of Lords that the jury was misdirected in so far as to take into consideration the effect Valium had on the defendant’s abilities. The house of Lords allowed the appeal and held that the jury should have been directed to see whether the defendant was incapable of foreseeing the risk posed by his actions while under the influence of valium and if so, whether it was reckless for the defendant to have taken the Valium. The defendant had only consumed Valium in order to calm his nerves and had been expressly told that it would ‘do him no harm’. In such a case, it was not reasonably foreseeable that the Valium would cause aggressive or untoward behaviour and therefore, even the self-administration of valium was not held to be reckless. The conviction of the defendant was quashed.
This case can be reconciled with other cases of self-induced state of intoxication (where one is incapable of appreciating the risk of one’s actions) by the fact that here the defendant was expressly told that the valium would ‘cause him no harm’ and also that the intention of taking the valium was to soothe nerves as opposed to stimulating the mind into a ‘tripping’ state. However, it still serves as another example of specific laws for differing circumstances. Here, the defendant did not foresee the consequences of his actions, but was not liable for reckless behaviour.
Simester in his article[15] suggested that constructive liability, which could be broken down further into a gateway wrong and an aggravating part, could be used to explain the place of intoxication as a defense in law. The gateway wrong could be seen as the reckless activity of getting drunk, and this would ensure criminal liability if the aggravating part of a crime (a matter of strict liability) was to occur. He held that intoxication could not be a defense and was instead usually a beneficial fact for the prosecution.
Another complication of ‘transferred malice’ arises if the definition of intent is restricted to purpose and that of recklessness to foreseeability. If A intends to kill B, but ends up killing C, then the consequence of A’s actions were not matched with his purpose. With a narrow definition of intent, A could be absolved of liability. However, in such a scenario, A would usually be convicted of murder, as the intention to kill B can be transferred to kill C, as long as it was A’s act that led to C’s death. J Horder[16] described this as the doctrine of transferred malice which had four broad principles:
That transferring mens rea is an authorized doctrine
That defendant’s conviction must correlate to the actus reus committed
That a transfer of intent should not enlarge the original intent so as to be reasonably unforeseeable and the actus reus committed by defendant should still be indicative of conviction.
Mens rea of one crime cannot be transferred to the actus reus of another.
However, it can also be argued, as A Ashworth does, that if A intends to kill B and ends up killing C, A could be convicted on the charges of ‘attempt to murder’ for B and manslaughter for the death of C. This however, rules out the conviction of A for the murder of C.
An exception to this rule is AG’s reference number 3 of 1994[17]. In this case, a boyfriend stabbed his pregnant girlfriend. As a result of the stab wound, the foetus died, even though the woman survived. However, the intent to murder or cause serious bodily harm to the woman could not be transferred to the foetus through the doctrine of transferred malice, as the foetus was not seen to be an existent human being by law. A conviction of murder would require the specific intent to kill a particular person and that intent could not be found in the case of a foetus. As a result, the man was convicted of manslaughter, which does not require any specific intent.
One can then reasonably argue that intent and recklessness are in a majority of cases given their dictionary meanings of ‘aiming to achieve a particular consequence’ and ‘disregard of the potential risk of actions’. However, there is a wide range of interpretations of these meanings, stretching the scope of criminal liability to be covered for differing mental faults of different crimes. Exceptions to a strict definition then become a norm and we lack complete clarity as to the application of laws and precedents on intent and recklessness. While the law could be summarised to the statement in question, it would be a summary that would ignore the nuances in criminal law and may not, therefore, be completely accurate.
[1] Woollin [1999] AC 82 (noted (1999) LQR 17)
[2] Nedrick [1986] 8 179
[3] Lord Steyn, R v Woollin [1999] AC 82 (noted (1999) LQR 17)
[4] Moloney [1985] AC 905
[5] Hancock [1986] A.C. 455
[6] Matthews and Alleyne [2003] Crim LR 553
[7] Stephenson [1979] QB 695
[8] R v Parker [1977] 2 All ER 37
[9] Elliot v C [1983] 2 All ER 1005 (DC)
[10] R v G and R [2003] UKHL 50
[11] Majewksi [1977] AC 443
[12] Majewski [1977] A.C. 443 HL at 479-480
[13] R v Heard [2007] EWCA Crim 125
[14] Hardie [1985] 1 WLR 64
[15] A Simester, ‘Intoxication is Never a Defence’ [2009] Crim LR 3
[16] J. Horder ‘Transferred Malice and the Remoteness of Unexpected Outcomes from Intentions, [2006] Crim LR
[17] AG Ref (no.3 of 1994) [1997] 3 W.L.R. 421
by
tkathpalia (student)
