Criminal law supervision 2: Mens Rea

1. The mental states of intent and recklessness have in common the need to
prove foresight of the prohibited consequence. For either form of culpability
the defendant chooses to bring about the consequences of his conduct. That
being so there seems little point in retaining both these forms of culpability.
For serious crimes the culpability required should be recklessness.
Discuss

For serious crimes, there usually is a mens rea therefore just looking at recklessness would
not be looking at the full picture. Sometimes serious crimes do not fully involve
recklessness and are based completely on intention to carry out a serious crime.
It is not always the case that the defendant chooses to bring about the consequences of his
actions, sometimes due to recklessness; those consequences come about and were not
necessarily thought of by the defendant before. Eg. In R v Hyam [1975] Mrs. Hyam claims
that she did not forsee the consequences and was just being reckless although the court
dismisses her appeal.

R v Hyam [1975]
Point of Law -> Foresight does not have to be to a critical extent, but just has to be a highly
probably extent.
Details of Case -> Mrs. Hyam had been having an affair with somebody who left her and started
having an affair with someone else. As an act of displeasure she poured petrol through the
letterbox of her rival. Unfortunately when she ignited the petrol, there were people inside the
house sleeping, one of whom died. As a result, Hyam is convicted for murder. She appeals stating
that she didnt have the state of mind for intention, as she had not intended to kill anybody
through her actions or cause anyone harm, but she was just being reckless.
Held -> HL dismissed her appeal because her foresight of the death was highly probable and that
was all she had to see. This view suggests that if a result is foreseen as likely, then it is intended.

R v Moloney [1985]
Details of Case -> A father and stepson had been drinking heavily. The father had guns in the
household. In their drunken game they failed to see that the safety hatch of a gun wasnt on,
subsequently the son accidentally shot the father dead. The son was charged with murder, as the
jury said that the son should have seen that that result was highly probable.
Held -> HL allowed his appeal and quashed his conviction for murder and substituted it with a
manslaughter conviction. This overturned the Hyam conviction, and said that if you left foresight
at being highly probable, too many people would be on trial for murder. Instead you have to
foresee the consequence as a natural consequence.
Lord Bridge said, First, was death or really serious injury in a murder case (or whatever relevant
consequence must be proved to have been intended in any other case) a natural consequence of
the defendants voluntary act. Secondly, did the defendant foresee that consequence as being a
natural consequence of his act? The jury should then be told that if they answer yes to both
questions it is a proper inference for them to draw that he intended that consequence.

R v Hancock and Shankland [1986]

Details of Case -> During a mining strike, 2 minors attempted to prevent their colleagues from
going to work by standing on a motorway bridge and throwing boulders onto the road. A boulder
fell onto the road and killed a taxi driver. Subsequently, the two minors were convicted for
murder. They appealed the charge of murder and argued that it wasnt their plan to kill anybody.
Held -> CA agreed that there was no direct intention, but the question was if there was oblique
intention. The CA allowed the miners appeal, and quashed the conviction for murder and
substituted manslaughter. The Crown then appealed the case to the HL, but the HL dismissed the
crowns appeal and upheld the manslaughter conviction.
Lord Scarmen said, In my judgment, therefore, the Moloney guidelines as they stand are unsafe
and misleading. They require a reference to probability. They also require an explanation that the
greater the probability of a consequence the more likely it is that the consequence was foreseen
and that if the consequence was foreseen the greater the probability is that the consequence was
also intended.

R v Nedrick [1986]
Point of Law -> If the defendant foresees the consequence to be virtually certain, then that could
be enough for the defendant to be inferred of intention.
Details of Case -> This was a very important case as this is the case where the issue of virtual
certainty was discussed. The defendant, Nedrick had a grudge against the victim and poured
lighter fuel in the letterbox of the persons house. He then set it alight and as a result the house
burns down and the victim dies. At trial Nedrick is convicted of murder, as the jury felt that
Nedrick should have seen that as a result of his actions, death was highly probable.
Held -> Nedrick appealed and CA quash the murder conviction and substitute it with a
manslaughter conviction. The judge said that if the defendant foresees the consequence to be
virtually certain, then that could be enough for the defendant to be inferred of intention.
Lord Lane said, It may be advisable first of all to explain to the jury that a man may intend to
achieve a certain result whilst at the same time not desiring it to come aboutWhen determining
whether the defendant had the necessary intent, it may therefore be helpful for a jury to ask
themselves two questions. (1) How probable was the consequence which resulted from the
defendants voluntary act? (2) Did he foresee that consequence? If he did not appreciate that
death or serious harm was likely to result from his act, he cannot have intended to bring it about.
If he did, but thought that the risk to which he was exposing the person killed was only slight, then
it may be easy for the jury to conclude that he did not intend to bring about that result. On the
other hand, if the jury are satisfied that at the material time the defendant recognised that death
or serious harm would be virtually certain (barring some unforeseen intervention) to result
from his voluntary act, then that is a fact from which they may find it easy to infer that he
intended to kill or do serious bodily harm, even though he may not have had any desire to
achieve that result.

2. Critically evaluate the test for intention set out in Woollin. Ought intention be
equated with foresight of virtual certainty?
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The test can be criticised as intention should not be equated with foresight of virtual
certainty because it is not necessary that the defendant intended to do harm and
foresaw the consequences.
The test does not really look at any intention on behalf of the defendant.
If the defendant appreciated the consequences were virtually certain, then the
intention was obviously there.
Not looking at intention, the test is good at determining the defendants view of the
virtually certain.

R v Woollin [1998]
Details of Case -> A father lost his temper with his 3 month old son, and threw his son against a
wall, which fractured his skull resulting in the death of the baby. The judge explained to the jury
that you should convict Woollin of murder if he foresaw the consequences and can then infer
intention. He also said, that it is not just foresight of virtual certainty that is important but you can
also convict him if you say he appreciated there was a substantial risk that through his actions the
baby would die or be seriously harmed. He was convicted for murder, but appealed. CA dismissed
the appeal, but then the defendant appealed again to the HL.
Held -> HL said that the trial judge had been wrong to depart from the virtual certainty and so
allowed his appeal because the judge had blurred the distinction between murder and
manslaughter. The murder conviction was thus quashed murder and was substituted with
manslaughter.
There is a 2 part test that comes from the Woollin case.
-

Was the death or serious harm virtually certain as a result of the defendants actions?

Are the jury sure that the defendant appreciated that the consequences were virtually
certain?

Lord Steyn repeating Lord Lanes model direction in R v Nedrick said,

(B) 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 infer 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 defendants actions and that the defendant appreciated that such
was the case.
(C) Where a man realises that it is for all practical purposes inevitable that his actions will result
in death or serious harm, the inference may be irresistible that he intended that result, however
little he may have desired or wished it to happen. The decision is one for the jury to be reached
upon a consideration of all the evidence.
Lord Steyn approved the Nedrick direction, but substituted jury should be directed that they are
not entitled to infer the necessary intention with jury should be directed that they are
not entitled to find the necessary intention Thus he changed the word infer to find.
This law on intention is now open to 2 interpretations; definitional and evidential interpretation

Definitional interpretation When Steyn changed the word infer to find, it actually
made a difference. If you find intention, then it amounts to intention itself. Under this
definition they have no choice but to find someone liable if there in intention. The change
takes away the jurys discretion, if they can find virtual certainty it amounts to intention.

Evidential interpretation This approach is for people who say that the change has not
made much of a difference, as this definition puts weight on the word entitled. Therefore, the
jury are entitled (but not required) to find the intention, hence leaving the discretion that even
if there is virtual certainty, they can find intention or not.

Ashworth says,
Where Nedrick states that if D foresaw the relevant consequence as virtually certain
the court is entitled to infer intention, Woollin states that the court is entitled to find
intention. This change has little practical significance, and it leaves open the
possibility that, if courts are entitled but not required to find intention in these cases,
then there may occasionally be cases where they may lawfully decide not to find
intention despite foresight of virtual certainty.
Ashworth says,
we have seen that the House of Lords left the door ajar: the phrase entitled to find
preserves an element of moral elbow-room which many judges and some others
believe essential if courts are to label defendants in socially sensitive ways, especially
in difficult cases.
Re A (conjoined twins: surgical separation) [2000]
Details of Case -> Doctors wanted to find out the legal consequences of separating conjoined
twins. If they separated the twins, the weaker twin would almost certainly die, and so the doctors
wanted to know whether this operation would mean that they could be held liable for murder.
Held -> It was found that the doctors would not be guilty of murder. A couple of the judges
followed a definitional approach to Woollin, where they said that if it was virtually certain that the
operation would result in the death of one of the twins, then there is an intention to kill. One of
the judges said post Woollin, you can look at intention from an evidential approach, and say
foresight of virtual certainty means that you can find intention but you are equally entitled not to
find intention, and in this case they didnt find intention. This was however a CA decision and we
are waiting for a HL case.
R v Matthews and Alleyne [2003]
Details of Case -> The defendants caused the death of the victim, as they deliberately threw them
into a river knowing that they could not swim. The defendants were convicted of murder but then
appealed.
Held -> CA dismissed the appeal and upheld the charge of murder.

Does the approach to intention in Woollin apply to all offences of intent or just murder?
3. In spite of all the critiques that have been made of it, Caldwell recklessness
had an important point to make, not caring in culpable. Discuss

Caldwell recklessness has now been abolished. However it is useful to know in outline what it was
and why the HL decided to abolish it.
Defendants were Caldwell reckless if
(i)
(ii)

they are aware of a risk OR

there was an obvious and serious risk AND they failed to consider whether or not there
was a risk

Elliot v C [1983]
Details of Case -> A 14 year old girl with learning difficulties set fire to a shed by lighting white
spirit. She said she didnt realise the consequences of what would happen.
Held -> The court stated that Lord Diplock in Caldwell had made it clear that the test was whether
a reasonable person would have realised that the lighting of the spirit would create a risk of
damage to the shed, not whether the risk was obvious to the defendant or obvious to a reasonable
person of the defendants age and mental abilities. As she had failed to consider the risk and it
would have been obvious to a reasonable person, she was guilty of criminal damage. The court
reaffirmed that when you are looking at criminal damage, you take an objective approach. For the
next 20 years, court always looked at recklessness is an objective approach.
Criticisms of Caldwell
Ashworth said, A true objection is that, whereas advertent recklessness is under-inclusive,
Caldwell recklessness is over-inclusive failures of moral fit which illustrate the conflicting
values in current notions of justice. Thus, Lord Diplocks test of what would have been obvious to
the reasonable person appears to admit of no exceptions.

The gap left by Caldwell is where a person gives thought to possibility that conduct
(circumstance) might involve a risk but wrongly concludes that there was no risk.
Caldwell recklessness was different from Cunningham recklessness because it includes
defendants who were not aware of an obvious risk. Caldwell recklessness fell into disrepute
because it punished defendants for failing to notice a risk which would have been obvious to a
reasonable person.
This issue of harshness was considered in Elliot v C (1983), where a 14 year old girl with
learning difficulties set fire to a shed by lighting white spirit. The court stated that Lord
Diplock in Caldwell had made it clear that the test was whether a reasonable person would
have realised that the lighting of the spirit would create a risk of damage to the shed, not
whether the risk was obvious to the defendant or obvious to a reasonable person of the
defendants age and mental abilities. As she had failed to consider the risk and it would have
been obvious to a reasonable person, she was guilty of criminal damage. The decision caused
an outcry amongst academic commentators. The reason for the outrage is this: it can lead to
the punishment of a defendant who fails to appreciate a risk that she was incapable of
foreseeing. C was liable for failing to foresee a risk that because of her mental condition she
may have been incapable of foreseeing. The harshness of this approach is revealed by the
following example: a blind person is walking down the pavement and walks into a bicycle left
lying on the pavement, damaging it. As the risk would be obvious to an ordinary sighted
person he would be Caldwell reckless as he failed to foresee the risk. This is extraordinary and
goes against the fundamental principles of justice. With this in mind it was not surprising that
the HL in G and R decided that Caldwell recklessness had to go.
Even accepting the moral thrust of Caldwell recklessness (we blame the defendant for failing
to see a risk which he should have seen) such an argument is legitimate only where the
defendant could have foreseen the risk. To punish someone for failing to do something he or

she was incapable of doing seems manifestly unjust. It is hard to mount a defence of the
reasoning in these cases except on the basis that it is more important to protect victims from
harm from others than to achieve justice in every case.
Although there is hardly a consensus amongst commentators, it seems that a majority would
accept that Cunningham recklessness is too narrow, while Caldwell recklessness is too wide. Is
there a middle way between the two forms? Some commentators have suggested that the
decision in the HL in Reid (1992) hinted at one. If the defendant has a good reason (e.g. a
sudden emergency) he is not reckless. But if he does not have a good reason (e.g. he is angry)
then he is reckless.

4. Jim, a member of the anti-government militia sets two time bombs in a

department store. He phones the store half an hour before the bombs are
supposed to go off and tells them to clear the building, but not to send in any
bomb disposal experts as the bombs will go off when touched. The first bomb,
owing to a malfunction goes off 3 minutes after the phone call, killing three
shoppers. The shop is cleared of people, and 15 minutes later, a bomb disposal
expert, Edward is sent in, but when he touches it, it goes off, killing him. Jim
decides that Sam, another member is in fact a police informer. Therefore he
orders David to break both his legs and force him into a meeting of the militia
show what happened to traitors to the cause David breaks Sams legs and
whilst forcing him towards the meeting room, Sam dies of shock.
Does Jim intend the deaths? Is he reckless towards them?
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It could be argued that Jim did not intend the deaths of the 3 shoppers and Edward as
he called the store and asked them to evacuate and also warned not to touch the bomb.
However, it could be seen that placing the bombs in the department store is with the
intention to kill or cause serious damage. By designing the bomb to detonate once it is
touched is with the intention to kill the person who touched it.
Sams legs are broken on the order or Jim, although he did not intend to kill Sam, he
intended gross bodily harm which could have resulted in death and this is a foreseeable
circumstance especially as Sam is forced to walk.
Jim is extremely reckless towards all four deaths, and although they do not involve
direct intention, it could be argued that they all involve indirect/oblique intention,
however direct intention could be argued too, as placing the bombs in the store and
breaking Sams legs involve a pre mediated plan. Taking the subjective recklessness
view, it could be seen that Sam was aware of the risk and then took the conscious
decision to place the bombs there and break Sams legs despite the risk involved.

Cases:
These are subjective cases:

R v Cunningham [1957] (very authoritative case)

Cunningham was a squatter and he went into an unoccupied house where he was staying which
had a coin operated gas meter. He tried to get the money out of it and the gas started leaking out
and made a neighbour was really ill. He was charged with maliciously administrating obnoxious
substance. The judge said malicious meant wickedness, at trail he was convicted of this offence
and went on to appeal to CA that this terminology was old fashioned. CA said the malicious meant
you could mean intentionally or recklessly. So quashed the decision?
R v Stephenson [1979]
Was a tramp and he suffers from schizophrenia. He finds himself in the countryside and finds
refuge in someones barn. He has a lighter on him and starts a fire to warm and the barn ends up
burning down. At trial he is convicted of arson because the trial judge told the jury you have to
convict him if he closed his mind to an obvious risk. He appeals his conviction and goes to the CA,
they allow this and quash his conviction and they so do because the trial judge misdirected the
jury because he applied an objective approach to recklessness.
Objective recklessness cases;
R v Caldwell [1982]
Caldwell had done some work fo a hotel owner and he goes and had some drink at the hotel and
gets in a fight with him. Caldwell gets into a temper and sets fire to the hotel as revenge. Caldwell
is convicted with arson/criminal damage pleaded guilty. The second charge he is convicted with
is recklessly/intentionally endangering life and he disputed this charge. At his trial he is convicted
of the second charge. The trail judge said drunkenness is not an excuse. HL looked at 2 things,
intoxication,...crown appealed... this was seen as a basic intent offence so his drunkenness could
not be used as a defence, court said because it is a basic intent offence, if you get so drunk you
have no idea what you are doing then you are acting in a reckless manner.
Specific intent eg. Murder, because only intention suffices. A crime of specific intent, the only
form of mens rea that is required in intention. For crimes of specific intent, drunkenness can work
as a defence.
Basic intent all other offences, which can be committed recklessly by any other mens rea except
intention. Drunkenness is never going to be a defence for a basic intent crime.
R v G [2003]
The case involved criminal damage. 2 boys, 11 and 12 years who set fire to newspapers in a wheelie
bin near a supermarket and it catches fire to the building and the supermarket suffer losses of
over 1 million. They are convicted of arson/criminal damage, they appeal on the fact that they
didnt understand the full consequences of the risk they were taking. Appeal is dismissed because
they took the Caldwell approach. HL decided to quash the boys conviction to arson and allow
their appeal, and reinstate a subjective view for recklessness.
They wanted to bring the subjective approach back because the objective approach leads to unfair
decisions. Conviction for serious crime should depend on proof of culpable state of mind of the
defendant.