The law of Mens rea
Mens rea can be literally translated to mean ‘guilty mind,’ and it, “Refers to the mental element necessary for the particular mind…”. This is not some abstract mental process; it refers to specific words in the charge or indictment. There are two opposing views on the way in which mens rea of the accused has been established: the subjective approach and the objective approach. The two often come into conflict in court when deciding the accused mental state and there has been much criticism surrounding the way the courts have dealt with this problem.
One commentator said that:
“Subjectivism became the orthodox academic theory of mens rea earlier this century.”
It has also been said that:
“Subjective tests heighten the protection of individual autonomy, but they typically make no concession to the principle of welfare…of fellow citizens.”
Thus commentators are undecided about the proposal stated in the above question.
Generally, recklessness means taking an “unjustified risk”, however, its legal definition is not quite as straightforward or the same as its normal meaning in the English language. Careful direction as to its legal meaning has to be given to the jury, so as to avoid miscarriages of justice. However, the word had produced uncertainty because there is no statutory definition and judges have produced two meanings of recklessness for different crimes.
It is often difficult for the prosecution to prove that D intended to commit the crime in question and for many offences, it is therefore not necessary to show a high degree of blameworthiness; it is sufficient to prove that D has been reckless as to whether the crime has been committed.
The original definition for recklessness was that in R v Cunningham, which concerns Section 23 of the Offences against the Person Act (1861). In this case recklessness is purely subjective regarding the person's state of mind, Byrne J. in his judgement directed the jury to this definition of recklessness:
"(1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not."
This would mean that the accused must have realised that he was going to cause harm and not just that the risk would have been obvious to anybody else in that situation.
For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk. He must realize that there is a risk involved but if he continues to carry on with his conduct, then he is reckless. The defendant was charged under S.23 Offences Against the Person Act 1861, which involves maliciously administering a noxious thing so as to endanger life. The trial judge directed the jury that malice was the equivalent to wicked and the Court of Appeal quashed the conviction - maliciously means intentionally or recklessly and the latter word required proof that the defendant had had some foresight of the risk and yet had still deliberately gone ahead.
On appeal, Geoffrey Lane L.J stated that:
"The fact that the risk of some damage would have been obvious to anyone in his right mind in the position of the defendant is not conclusive proof of the defendant’s knowledge…"
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This confirming that the jury who originally convicted the defendant were misdirected and that the conviction could only be upheld if the defendant realised the consequences of his actions, clearly in this case he did not so the Court of Appeal had no option but to quash the conviction.
This was supported in Stephenson (1979) The trial judge directed the jury that the defendant was reckless if he 'closed his mind to an obvious risk' but the Court of Appeal quashed the conviction with Lord Lane firstly looking at the recommendations of the Law Commission:
a person is reckless if, a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.
“We wish to make it clear that the test remains subjective…The schizophrenia was on the evidence something which may have prevented the idea of danger entering the appellants mind at all.”
This follows the case of Cunningham and takes into account the person’s state of mind at the time they committed the crime, thus following the proposal that the courts are following subjective assessments to establish mens rea.
MPC v. CALDWELL generated a new and much wider test for deciding cases that have an element of recklessness in them. He intentionally started a fire at the hotel, which caused considerable damage, and in turn, Caldwell was charged with arson. The offence is defined in the Criminal Damage Act 1971, as requiring either intention or recklessness. On the facts, there was no intention, and, on the issue of recklessness, Lord Diplock stated that the definition of recklessness in Cunningham was far too narrow for the Criminal Damage Act 1971. Lord Diplock, in the case Caldwell, decided that the subjective test stated in Cunningham was too narrow and came to a new conclusion regarding recklessness. He decided that a person could be convicted of being reckless even if no thought was given. For that act, Diplock said, recklessness should not only include the Cunningham meaning, but should also elaborate upon this. Diplock said that a person is reckless as to whether any property would be ruined or damaged if:
Either he does an act which in fact creates an obvious risk that property would be destroyed or damaged, and/or when he does the act he either has not given any thought whatsoever to there being any such risk or that he has actually become conscious of the fact that there was a substantial risk involved, but has gone ahead nonetheless.
Consequently, there are actually two potential ways in which Caldwell recklessness can be proved. The first manner is highly similar to the old Cunningham test: “he does an act which in fact creates a risk and has recognized that there was some risk.” The second way in which that Caldwell recklessness can be proven is the important extension to the actual meaning of recklessness: “he does an act which in fact creates an obvious risk and he has not given any thought to the possibility of there being any such risk.”
This is an extension of the definition stated in Cunningham because under the Caldwell definition a person can be liable if they did not realize there would be a risk involved and is described as unconscious risk taking which is an objective approach.
Commentators have said on the matter that:
“Caldwell now occupies a somewhat isolated position in English law.”
On the same day as Caldwell the House of Lords ruled on the case of R v Lawrence where the accused was charged with causing death by dangerous driving contrary to S.1 Road Traffic Act 1972 - he had been driving a motor cycle at speeds between 60-80 mph in a town street when he knocked over and killed a pedestrian crossing the road. Diplock again delivers the major judgment whether,
“He had created an obvious and serious risk."
In recent cases the juries have followed the 'reasonable man' test. For example, in the case of Elliot v C (a minor) (1983) where the accused was a 14-yr old girl with low intelligence who had entered a shed early in the morning, poured white spirit and set it alight and it flared up out of control. The Caldwell test was applied and as a reasonable person means a healthy adult, she was found guilty in the appeal even though Lord Goff felt constrained by the decision in R v Caldwell and he expressed his unhappiness in doing so. The case of Coles (1994) also showed the Court of Appeal's willingness to adhere to precedent regardless of where that might lead or the gross injustices which might result. (Michael J. Allen, Criminal Law, p.74)
Lord Diplock referred to the accused either recognising the risk and continuing or not recognising the risk at all. Within this reasoning there is a gap - what if the accused adverted to the risk but decided that it was safe to proceed? This is illustrated in Chief Constable of Avon and Somerset Constabulary v Shimmen (1986) Shimmen is not reckless within the precise wording of Lord Diplock's definition in Caldwell because he has given considerable thought to the risk but come to the wrong conclusion as to its significance.
The Divisional Court sent the case back to the justices with directions to convict but without ruling on this point. This, therefore, means that on the same day the House of Lords established two slightly different definitions that constitute recklessness. The first in Caldwell that the risk must be "obvious" and in Lawrence the risk being "obvious" and "serious." In the case of R v Reid (1992), Lord Goff recognised that there might be a 'loophole' or ‘lacuna’ – “giving thought to the possibility of a risk, but concluding there was none.” This would therefore give consideration to the jury having to establish the state of mind of the defendant. There are problems in establishing "to whom the risk must be obvious."
The case of R v G recently went to the House of Lords on a point of law: whether or not a defendant could be convicted of an offence under section one of the Criminal Damage Act 1971, regardless of his age and state of mind at the time of the alleged offence. G was aged eleven when he committed the offence he was tried for, and the essential question before the HL was whether the decision on recklessness in Caldwell was correct, or whether allowance should be made for age and mental capacity. G and R had been convicted of damaging property through arson, contrary to the Criminal Damage Act (1971). The test laid down in Caldwell said that a person was guilty of an offence under s. 1(2) of the CDA where: he did what was an offence under s. 1(1) and he gave no thought to the possibility of there being any risk to life (or property) or, having recognised such a risk, he nevertheless went on to cause the damage. In Caldwell, the defendant was drunk and argued that he had not thought about the risks created for that reason; the court at first instance went on to apply that children, although with diminished powers of foresight, were no different from the drunkard and should be held to the same standard. The defendant argued that this breached his Article 6 right to a fair trial, although that point was dispensed with in the CCA.
The brief facts of the case are thus: G and his friend (aged 11 and 12 respectively) went camping one evening without their parents' knowledge. During the night they entered a yard and, in an attempt to keep warm, lit some newspaper which they later discarded under a wheelie-bin. This bin caught fire which then spread to an adjoining bin and then on to a nearly shop causing approximately 1 million worth of damage. G and his co-defendant argued that they expected the fire to extinguish itself on the concrete floor of the yard. It was not disputed at trial that the boys were unaware of the consequences of their actions (thus they did not fall under the intention arm of the mens rea but the recklessness one, meaning that the authority the prosecution were relying on was clear: Caldwell); the trial judge attempted to reassure the jury that "nothing unpleasant" would happen to the boys even if they were convicted. He felt compelled to do this as the jury were showing clear reluctance to convict on the basis of Caldwell alone. The judge even expressed regret at the law he had felt bound to apply, so it was almost inevitable that the decision in Caldwell would come under further scrutiny by the HL
Lord Bingham, delivering judgment, questioned the use of the word "maliciously" in the crime of criminal damage as it requires an extra element to the mens rea necessary. He referred on the Law Commission's paper (1969) as basis for this proposition, which was made into legislation in the 1971 Act. He went on to question the idea which replaced it, that of "recklessness", particularly in relation to defendants who had no concept of the term. His Lordship tried to balance the need for the modification of the rule in R v Caldwell with the need to punish those who were morally culpable for their actions. Lord Steyn went on to consider that the threshold for overturning a previous HL decision had been met, stating that the foresight of consequences should be a fundamental prerequisite to recklessness within the meaning of section 1 of the CDA 1971, as it had been prior to that Act. Importantly also was the consideration that the Caldwell decision brought within the ambit of section one those cases of inadvertent recklessness (as in this case) which led to potential serious injustice which is unable to be justified on policy grounds. Thus the HL overturned the decision in Caldwell and replaced the objective test of recklessness for criminal damage with a subjective one.
However, was this decision a correct one? Although there were many commentators, judges and scholars who questioned the validity of the objective test of recklessness there were advantages in it. It provided juries with a clear idea about what they were expected to compare the defendant to and therefore led to less inconsistencies than the subjective test, which compared the actions of the defendant to what were reasonable for the same defendant in the same circumstances. Although there are clear merits in this latter approach, particularly that of allowing the defendant to be judged according to his particular knowledge and experience, it does open the way for inconsistencies with the way the test is applied by juries. However, it was also clear that the Caldwell objective test was also unfair for a significant number of defendants, notably children and the mentally handicapped.
On that basis, would it not have been better to retain the bulk of the objective test, but raise a limited number of rebuttable defences to it? As well as the exception for children and the mentally handicapped (which would avoid the injustice of Elliott v C and the earlier decisions in R v G) there may also be a limited defence for provocation. For instance, a wife, badly treated by her husband, before being left altogether for a younger woman may be fully justified in losing her temper and destroying some of his possessions, as she has been treated badly by an unreasonable man; why then should she be compared to the reasonable man? Although having these exceptions may, at first sight, complicate the law, the relative ease for jurors in applying them and thus the overall fairness created by them would be beneficial. By having these exceptions to the rule and reducing the crime from criminal damage to, say, causing damage through inadvertent recklessness, would be better both in terms of fairness in punishment and in stigmatic values. However, the step the HL took is to place too much power in the hands of individual juries, making the law more about legal outcomes than any notion of justice. This is obviously undesirable, and the decision in R v G may need to be further examined in the future.
M.J Allen, Elliot and Woods Cases and Materials on Criminal Law, 8th ed., 2001, at 76
J. Horder “Two Histories and Four Hidden principles of Mens Rea” (1997) Law Quarterly Review 95
A. Ashworth, Principles of Criminal Law, 3rd ed., 1999, at 201
Previously cited in 3, at 120
Previously cited in 3, at 121
Previously cited in 7, at 76
Previously cited in 5, at 201
 A.C. 510
Previously cited in 3, at 77
 1 W.L.R. 939
 1 All E.R. 673
Previously cited in 7, at 79