“Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.”
This is the direction must be used when the case involves oblique intent. It means that death or GBH must be a virtual certainty to the defendant. Oblique intention and direct intention are states of mind are equally blameworthy. A popular example to explain this is where a person to claim life insurance, plants a bomb on a plane about to take off. He cannot claim he is not guilty of murder because he did not desire the deaths of the passengers, it were an inevitable consequence of his action. If the current law only allowed direct intent to form malice aforethought, such a person, who clearly deserves the label of a murderer, would not be convicted of murder.
The direction also helps to ensure that those guilty of only manslaughter are protected from being labelled murderers. The direction means that it is wrong to suggest that D’s knowledge of death or GBH as a substantial risk of his acts, or any other degree of probability, would do as conclusive proof of intent to kill, thus attempting to eliminate the less culpable state of mind, recklessness in murder. As a result, those who were reckless in causing death are not convicted.
For example, a person who foresees that death or serious injury is ‘highly probable’ and still, does the action, cannot be guilty of murder. Thus the law helps ensure that only those who deserve the murder conviction get it. This is very important, as murder is the most serious of crimes and carries a mandatory sentence. The distinction must be retained, as society will not respect a legal system, which does not take seriously the distinction between manslaughter and murder.
As well as highlighting the positive role of the Nedrick direction, it is important to discuss the trouble it might cause juries. Juries are entitled to find intention if they feel sure the accused was virtually certain of GBH or death. The concept of “virtual certainty” continues to cause problems. Foresight of “high probability” is not sufficient for oblique intent to kill, but it is not clear at what point, “high probability” becomes “virtual certainty”. What if the jury convict a person of murder when it was only highly probable that GBH would occur? Some argue that as juries have a choice, it may lead to inconsistencies and so, cases involving risk-taking, no matter how extreme, should be left to the law of manslaughter.
Another fault element is recklessness. There is objective recklessness and subjective recklessness. The leading authority for the subjective approach is Cunningham4. The defendant removed a gas meter from a house to steal money from it. He left gas leaking from the pipe. He was convicted of maliciously administering a noxious substance so as to endanger life contrary to s.23, Offences Against the Person Act 1861. The question was whether the defendant had the required ‘malice’. The Court of Appeal quashed the conviction as malice simply requires the accused to foresee the particular harm and nevertheless has gone ahead to take the risk.
The subjective stance was used to be sufficient mens rea for Criminal Damage before Caldwell5. The House of Lords however changed this in Caldwell. In this case the defendant set fire to a hotel in a drunken state, after arguing with the owner. He pleaded guilty to s.1 of the Criminal Damage Act (simple arson) and not guilty to s.2 (aggravated arson). He claimed that because he was drunk he was not aware that he might endanger life. At first instance of appeal this argument was rejected on the basis that being drunk is no defence to a crime of recklessness. The house of upheld the conviction and Lord Diplock gave a lords gave a model direction; an actor is guilty of criminal damage under s.1 if he does an act which in fact creates an obvious risk that property will be destroyed or damaged, and when he does the act he either has not given any thought to the probability of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it. Thus the House of Lords created an objective test of recklessness, which was binding on all future cases of criminal damage. This direction lead to many unfair decisions.
Objective recklessness simply requires the risk to be obvious to the reasonable person. It is irrelevant whether the defendant recognised the risk or not. Therefore in the case of Elliot the court felt bound to follow Caldwell even though it would be an unjust result. A fourteen-year-old girl mentally subnormal girl destroyed shed by fire using matches and white spirit, because she wanted to stay warm. The Queen’s Bench Divisional Court upheld the conviction on the basis that the risk would have obvious to the ordinary person.
It is because of this unfairness the House of Lords, have changed the mens rea of Criminal Damage once again. This happened in the recent case of R v G. 2 boys lit some newspaper and threw it under a large plastic wheelie bin. They left the yard without putting the fire out. The fire spread to a shop wall and eventually the fire spread to the roof and adjoining buildings and the roof collapsed, causing £1 million of damage. They were charged with reckless arson contrary to s.1 (1) and (3) of the Criminal Damage Act 1971. It was accepted that they did not appreciated that there was a risk of the fore spreading like it did. The trail judge finding himself bound gave the jury the Caldwell direction and they were convicted. The Court of Appeal dismissed their appeal but the House of Lords quashed their conviction. The reason for this is that the Caldwell direction convicted people who were innocent. It went against the very principle that most criminal law is based on, in order to achieve justice. ‘Actus non facit reun nisi mens rea’, which means there should not be liability for an act, unless a culpable state of mind goes with it. It is unjust to convict a person on the basis of what someone else would have apprehended, if the person themselves were incapable of that apprehension.
The law now requires that the accused is aware of the risk, the result, which may occur, and it is unreasonable, in the circumstances known to him, to take the risk. The law now ensures that people like Elliot, who are not deserving of punishment, are not punished. In saying that, it does take us back to the problems faced by the courts when subjective recklessness was used before Caldwell. For example, what happens when a person in the heat of the moment, without thinking about the consequences causes criminal damage? This happened in Parker 6 where, the defendant smashed the receiver of a public phone onto the cradle, damaging it. He argued the possibility of a risk did not arise in his mind. The court of appeal decided that he was not only reckless when they were conscience of the risk he was taking but also if ‘he closed his mind to the obvious fact that there is some risk of damage resulting form that act’. This seems to be contradictory to the subjective approach, because it does not require the accused to have appreciated the risk. So in order to ensure that those like Parker who are deserving of some punishment, the court argued that closing one’s mind to a risk means, in his mind, he chose not to consider the risk, thereby making his mental state subjective. This type of approach ensures that subjectivism is not lenient in that, the excuse of not thinking about a risk acquits them.
Words: 1985
