Week 1- intention, recklessness and negligence

Question 1

Parker 1977 facts and significance (recklessness)

Answer 1

Facts- man slammed telephone down in rage, causing damage to phone box. Guilty of criminal damage due to the damage being an inevitable consequence of his actions.

-Modifying Cunningham subjective recklessness: “a person is “reckless” in the sense required when he carries out a deliberate act knowing or closing his mind to the obvious fact(the modification) that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act”

Question 2

Stephenson 1979 facts and significance (recklessness)

Answer 2

Facts- man with history of schizophrenia set fire to haystack to keep himself warm whilst he slept in a barn. Guilty of criminal damage but overturned due to his mental impairment.

Significance- circumstantial evidence used to determine whether the person in their situation could appreciate the substantial risk they were creating, reinforcing the idea that recklessness should be a subjective test.

Question 3

Caldwell 1982 Facts and significance (recklessness)

Answer 3

Facts- a man in his drunken state set fire to the hotel in which he worked. Charged with arson and appeals dismissed

Significance- dictated that recklessness was objective and that Caldwells intoxication should not weigh into his ability to recognise the substantial risk he created. The ordinary person would have recognised the risk and therefore Ds conduct had fallen under the standard expected of the reasonable man.

Question 4

R v G and another facts and significance (recklessness)

[leading authority]

Answer 4

Facts- two children under the age of 13 were camping without their parents permission and set fire to newspaper, leaving it underneath the bins of a shop. The fire spread and they were charged with criminal damage when the shop burned down.

Significance- This overturned caldwell and re-established subjective Cunningham recklessness. Characteristics such as age and mental capacity should weigh into ones ability to foresee a substantial risk. The boys, due to their age, therefore could not have been compared to the reasonable man

Question 5

How does Bingham now describe the law with regards to recklessness?

Answer 5

i) a circumstance when he is aware of a risk that it exists or will exist; (foresight)
ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.
iii) Therefore, recklessness is where someone foresees a risk of harm and nonetheless undertakes the unreasonable risk.

Question 6

What does Lord Davies say about recklessness in his disagreement with Caldwell?

Answer 6

One can discard a risk but cannot do so without first realising a risk exists. If they first realise a risk exists, that is the end of the matter.

Question 7

What is the difference between subjective Cunningham recklessness and objective caldwell recklessness?

Answer 7

Subjective recklessness takes a subjective approach which looks at the circumstances and characteristics of D to determine whether THEY were capable of foreseeing the substantial risk which they nonetheless undertook. In comparison, objective recklessness compares all defendants conduct and ability to foresee risk to the standard of ‘the reasonable man’ and therefore does not take into account the circumstances of the defendant, such as age and mental capacity, which may affect their ability to foresee risk.

Question 8

What is the differences between recklessness and intention?

Answer 8

• Intention is a more serious Mens Rea than recklessness
• Intention is most often equated with purpose, whereas someone can be reckless whilst not intending or having purpose for the outcome which they have recognised and achieved.
• Recklessness requires someone to recognise a substantial risk, and it is unreasonable in the circumstances known to them, and nonetheless undertake the risk, whereas intention involves acting to purposefully achieve the outcome.

Question 9

What are the two types of intention?

Answer 9

Direct intention
Oblique intention (virtual certainty)

Question 10

What is the current position with regards to Oblique intention?

Answer 10

Oblique intention requires there to be a virtual certainty of an outcome existing from Ds conduct, even if it is not their purpose.
-If there is a virtually certain criminal outcome, and D recognises the outcome to be virtually certain rather than just a substantial risk (recklessness), then the jury MAY infer a guilty intention, but this is not conclusive and must be considered with all circumstances and evidence considered.

Question 11

What does it say in the Criminal justice act (CJA 1967) S8

Answer 11

A court or jury, in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Question 12

Facts and significance of Steane 1947? (intention)

Answer 12

Facts- a man was found guilty of broadcasting with intent to assist the enemy during the war, after broadcasting on German tv because his family was threatened with death in the event that he didn’t comply. He was later acquitted.

Significance- his actions were virtually certain to help the enemy, as the natural consequences of his broadcast was of benefit to the enemy. However this was so at conflict with his ulterior purpose that the virtually certain outcome was not the only explanation for his actions and the intent of his actions.

• s8 of the CJA 1967 shows parliaments intention in the contrary to the initial charge given to Steane, in that his intention should not have been conclusively drawn from it being the natural and probable consequence of his actions.
• If a crime includes a specific intention in its wording, this must be proven beyond a reasonable doubt in order for a conviction to be entered - you cannot presume this specific intention from the prohibited action; it must be proved beyond a reasonable doubt.

Question 13

Chandler v DPP facts and significance? (Intention)

Answer 13

Facts-The defendants raided an airbase to contest the use of nuclear weapons. They were convicted for conspiracy under the official secrets act, for the potential harm inflicted against the crown.

Significance- Difference between motive and intention. The motive is the reason for the intended act.
-They intended the method of achieving the immobilisation of the airbase, even if their motive or purpose was said to be in the interest of the state. The question of law was not concerned with whether their motive was good or bad, it was the intention they had through their actions.

Question 14

Moloney 1985 facts and significance? (Intention)

Answer 14

Facts- A man was acquitted of murder but charged with manslaughter after shooting his father with a shotgun in an intoxicated state. The case rests on the intent of D to kill V, and it was held that the death of V was not foreseen as virtually certain from D shooting the shotgun in the close vicinity of V.

Significance- This was not a case of oblique intent,
-Knowledge of foresight of the consequences of an action were to be considered at best material from which a crime of intent may be inferred.
-Applied test in Nedrick: two questions- 1) was death or GBH a natural consequence of Ds action
2) Did D foresee this as a natural outcome.
If yes to both questions, the jury may infer intent.

Question 15

Hancock 1986 facts and significance? (intention)

Answer 15

Facts- Miners on strike pushed a concrete block and post onto the motorway to scare another miner on his way to work. The post and block fell onto a taxi and killed the driver. Charged with murder but substituted for manslaughter

Principle- Foresight cannot be equated with intention, they had to establish an intent to kill or do bodily harm. The fact that killing or doing bodily harm had happened was not enough to satisfy the intention for murder, there is a subjective element as to whether this was intended by the defendant.
-Foresight is at best evidence by which the jury might infer intention, not an alternative form of it.

Question 16

Woolin 1999 facts and significance? (Intention)

Answer 16

Facts- A man killed his baby after throwing it across the room in a state of anger. He claims he aimed for his pram, but he clarted it off the wall instead.

Significance- -Recognising a substantial risk is not enough to constitute murder. This would be reckless manslaughter instead.

• If it was proved that death was a virtual certainty and D also foresaw the risk of death as a virtual certainty, they may infer guilty intent for murder, following the test set out in Moloney.
• What this says is that a very severe form of reckless is still not reconcilable with intent.
• Amended the Nedrick test that when the jury find there was a virtually certain outcome and the defendant foresaw the outcome as virtually certain, this is evidence that the jury may use to infer intention, but it is not conclusive.
• If they find A and they find B, then they may find C. C is neither A, nor B, nor a combination of the two, but merely a possible inference drawn from the existence of both A and B.

Question 17

Facts and significance of stone and Dobinson? (omission)

Answer 17

Facts- Ss blood relative became a lodger of S and D and became unable to care for herself. S, D and a neighbour had attempted to look after her but omitted to care for her or alert relevant health authorities overtime, leading to her death.

Significance- held that there was a duty of care owed by S and D, due to their attempts to wash and feed her, and the blood connections. There was also a crime via omission here, with GNM being the guilty conduct as S and D had failed to take the precautions to look after V expected of the reasonable person.

Question 18

Airedale NHS Trust v Bland 1993 facts and significance (omission)

Answer 18

Facts-Bland was injured in the Hillsborough disaster and was in a permanent vegetative state. He could breathe on his own but required a feeding tube and constant care. The doctors that were treating bland were granted approval to remove the tube, and Bland died as a result.

Significance-It is not lawful to cause or accelerate death, but to withhold life-prolonging treatment differs from the administration of a drug which shortens or ends the life of V.
-V could not consent to any continuation or withdrawal of treatment, and it was in his best interests to withhold life prolonging treatment, rendering this act lawful.

Question 19

Miller facts and significance (omissions and negligence)

Answer 19

Facts- Miller was a squatter who had fallen asleep with a lit cigarette in his hand. When he woke up and realised he had set fire to the mattress, he had simply ignored it and moved to another room. The whole house set on fire and he was charged with arson.

Significance- D was guilty under negligence because he had created the dangerous situation and omitted to make reasonable steps to end the risk he had created. An objective test was applied in that the reasonable person would both recognise the risk and take reasonable steps to end it, which Miller had failed to do.
-Whilst his act was not a continuing act, the dangerous situation which he had adverted to creating was continuing as a result of his actions, even if he wasn’t continuously prolonging the dangerous situation.

Question 20

Difference between direct intention and oblique intention?

Answer 20

Intention in the criminal law is made up of both direct intention and oblique intention, however only direct intention can always constitute guilt (in the absence of any defence) whereas oblique intention does not always constitute guilt. Direct intention (in the absence of any defence) means D has acted with the purpose of achieving an outcome, whether desired or not. Oblique intention, in which the criminal offence is a virtually certain outcome, only provides evidence on which the courts may infer guilt for the crime, but it is not conclusive. Often it can be argued that oblique intention is instead a very severe form of recklessness, and following Moloney 1985, can only provide evidence from which a jury may infer the requisite intention, only account of Ds subjective advertency to the risk being a natural and probable consequence of his actions.

Question 21

What is the coincidence of Mens Rea and actus reus, and what are some crimes which it does not apply to?

Answer 21

As a general rule, actus reus and mens rea must coincide, not necessarily at the exact same time but within the same sequence of events. This is not the case for all crimes. Murder can be caused with the actus reus of murder but the mens rea of inflicting GBH. Manslaughter can be committed with the actus reus of manslaughter but mens rea of ABH or battery.

Question 22

Fagan v MPC 1969 facts and significance (coincidence of AR and MR and omissions)

Answer 22

Facts-F had driven his car onto the foot of the policeman, unknown to F. Once V made F aware that the car was on his foot, F verbally abused V and refused to remove the car, constituting a battery.

Significance- -F only became guilty of a battery when he became aware that he was unlawfully touching the police officer through the medium of his car.

• He had the actus reus of the unlawful touching from the start, but was not reckless nor intending the unlawful touching until V made F aware.
• His act against the policeman was a continuing act which F failed to end on the discover that he was committing the offence against the policeman
• The offence could not be committed via an omission, but the act of driving onto the foot and refusing to cease the act was a continuing act

Question 23

What does Hart suggest is the main point of negligence?

Answer 23

“I would therefore certainly follow Stephen and others and include negligence in ‘mens rea’ because, as I shall argue later, it is essentially a failure to exercise such capacities. “ The capacities being referred to are the elements of knowledge or foresight, and then a ‘voluntary nature’. The failure to exercise such capacities are important in defining negligence because they don’t just refer to the state of mind of someone who simply forgets to consider the outcome of their actions (acting inadvertently) but the actual omission to consider the consequences of their actions expected of a reasonable person and the likely risks that would be created as a result

Question 24

How does negligence differ to intention or recklessness in terms of MR?

Answer 24

Negligence does not require foresight nor intention, therefore constituting a lesser mens rea than that of recklessness.

Question 25

How does Hart describe recklessness compared to negligence?

Answer 25

Inadvertent negligence differing to recklessness, with recklessness being described as “wittingly flying in the face of a substantial, unjustified risk, or the conscious creation of such a risk” whereas inadvertent negligence is regarded here as “the word ‘inadvertent’ is to emphasize the exclusion both of the intention to do harm and of the appreciation of such a risk

Question 26

What are the two questions for inferring intent decided in Nedrick?

Answer 26

1) Was the outcome a virtually certain consequence

2) Did the defendant appreciate the outcome to be a virtually certain consequence.