Recklessness and Intention

In English law what is meant by: (a) intention; and (b) recklessness? What do these two fault
elements have in common, what differentiates them, and why has there been uncertainty
surrounding their definition?

Intention and recklessness are both vital in English criminal law. It is a defendant’s intention which is
crucial when courts decide if they had a guilty mind and subsequently whether they should be punished.
Recklessness is vital when deciding the facts of a case and whether the defendant should be punished for
not adequately assessing the risks of the criminal act they are charged with. Intention and recklessness can
both provide the mens rea element of crime which allows a defendant to be convicted of a crime. In
reality, this means that recklessness and intention carry different punishments but both can be used to
ensure that the English criminal law is effective in punishing people who do not consider risks or intend
to commit a crime.

(a) Intention
Intention is critical when a court decides whether or not a defendant should be convicted of a crime. In
order to define intention we must break it down into two forms: direct and indirect intention. Direct
intention is the aim of the defendant. This is essentially, whether the defendant would consider his action
a failure if a desired consequence did not occur as a result of his action. A case which helps define direct
intention is R v Mohan, in this case Mohan was asked to slow down policeman, he did, but when he got
near the policeman he accelerated towards the policeman who had to jump out of the way to avoid being
knocked over. Mohan was convicted of dangerous driving after it was judged that by accelerating the car
towards the policeman he had direct intention to kill or seriously harm the policeman. This is summarised
in the appeal judgement of James LJ where he states that the appeal has failed because:
‘The charge is an attempt to cause bodily harm by wanton driving. It has to be shown to you that the
appellant deliberately, without justification, irresponsibly, drove his vehicle in such a manner as was
likely to cause some bodily harm’.
Indirect intention is found when the defendant may intend a consequence although that consequence is not
their objective if it is foreseen. A case that helps define indirect intention is R v Woollin. In this case
Woollin threw his baby across the room in a fit of rage. He argued that he was aiming for the pram and
had no intention of killing or harming his baby. The baby missed the pram and hit a hard surface which
fractured his skull and later died as a result of his injuries. At first instances and at appeal Woollin was
convicted of murder. His conviction was quashed by the House of Lords where his murder conviction was
substituted for manslaughter on the grounds that he did not have direct intention to kill his baby and that
his intention was indirect. The House of Lords used Lord Lane LJ’s judgement from R v Nedrick to
justify convicting Woollin of manslaughter. Lord Lane LJ stated that a defendant can only have direct
intention when:
‘The defendant recognised that death or serious injury would be virtually certain, barring some unforeseen
intervention, to result from his voluntary act’
Wollin realised that there was a risk of serious injury to his baby but he did not believe this risk to be
virtually certain and so he was not convicted of murder.

(b) Recklessness
There are two forms of recklessness: subjective and objective. Subjective recklessness is defined in R v
Cunningham. In this case Cunningham ripped a gas meter off of a wall, the gas then leaked out and
poisoned the victim. It was judged that Cunningham had malice because ripping the gas meter off the wall
was reckless. Cunningham was convicted at first instance but his appeal was accepted because he did not
believe that the victim would be harmed. In this case the defendant is aware of the risk and acts recklessly
and so he is said to be subjectively reckless. Objective recklessness occurs when it does not need to be
proved that the defendant was aware of the risk, if the risk is an obvious one. A person is objectively
reckless when they create a risk without giving thought to it. Objective recklessness differs from
subjective recklessness because the defendant does not have to be aware of the risk, they need only take a
risk that a reasonable person would have foreseen. A leading case that helps define objective recklessness
is R V Caldwell. This case creates the model direction for objective recklessness as it was judged that a
person is reckless for the purpose of criminal damage if he does an act which creates an obvious risk that
property will be destroyed or damaged and when he does that act he either has not given any thought to
the possibility of there being such risk or has recognised that there was such risk and has nonetheless gone
on to take it. Caldwell has since been overruled by the judgement in R v Gemmel where the defendants
aged 11 and 12, lit some newspapers which set fire to a wheelie-bin which set fire to a shop, causing
£1,000,000 of damage. On appeal they were found not guilty of arson as the jury believed that Caldwell
was wrongly decided.

The Criminal Damage Act 1971 states that a person is guilty of an offence when they are:

‘Inintending to destroy or damage any property or being reckless as to whether any property would be
destroyed or damaged.’

Intention and recklessness are similar in some respects. Firstly they both form part of the mens rea of
crimes. For example in a murder trial intention to kill must be proven in order for the defendant to have
had the necessary mens rea to be convicted of homicide. Likewise it must be proven that the defendant
was driving recklessly in order for him to have the necessary mens rea to be convicted of causing death by
careless or inconsiderate driving. Both intention and recklessness are mental states that the defendant
might experience when he is performing the actus reus of a crime. Also they both have clear links to risk.
Intention involves the conscious taking of a risk in order to achieve an aim and recklessness involves
taking an unjustifiable risk either consciously (subjective recklessness) or unconsciously (objective
recklessness).

Differences between recklessness and intention

There are differences between intention and recklessness. It could be argued that intention is more thought
out than recklessness. When a defendant has intention to commit a crime they are taking a risk in order to
achieve an aim. They have voluntarily chosen to take this risk and are taking it as a method of achieving
their intention. Whereas recklessness is seen to be more careless, when a defendant is reckless they may
be aware of the risk they are taking but they are not taking the risk in order to achieve anything.
Culpability is also a major difference between intention and recklessness. It is widely believed that
defendants with an intention to commit a crime deserve punishment because their mental state is guilty.
However when it comes to objective recklessness there appears to be no culpability because the defendant
was not even aware of the risk that was being taken. The final difference between intention and
recklessness is the link they have to a reasonable person. Intention can be considered outside of what is
reasonable. A defendant can intend to commit a crime both rationally (for example calmly calculating
how to kill someone) and irrationally (shooting someone in a fit of rage but still intending to kill them)
either way this intention is part of a guilty mental state. Unlike intention, recklessness must be considered
in relation to a rational person. Subjective recklessness is still irrational even though the defendant was
aware of the risk, what makes it reckless is that a reasonable person would not have chosen to do it.
Objective recklessness is always judged in relation to a rational person and cannot exist if it is not
considered in relation to a rational person.

The uncertainty surrounding recklessness and intention

Many uncertainties surround the definitions of intention and recklessness. This is mainly because three
questions arise: should being reckless be punished? Should it matter if the defendant considered risk?
Should we measure a defendant’s taking of a risk against a reasonable person? Firstly it is uncertain
whether recklessness should be punished. In order to decide we need to look at the function of
punishment in the criminal law. If punishment is a means of deterring future offenders,[12]recklessness
should be punished so that in future people take time to consider risks. If punishment is part of a
paternalistic criminal law system,[13] subjective recklessness should be punished as it could stop citizens
taking unjustifiable risks which could harm themselves and others but objective recklessness should not
be punished because it seems unjust for someone to be punished for taking a risk they were unaware of.
Or perhaps the criminal law is there to protect society therefore all recklessness should be punished in
order to prevent harm to society. Secondly when deciding whether it should matter if the defendant
considered risk we must consider the effects on society. If it doesn’t matter, society could suffer because
people could take risks knowing they cannot be punished. However if it does matter, there are many
implications for legislation. For example: how do we know what risks should be considered? Are some
risks too unlikely to need consideration? Should defendants consider all risks no matter how small?
Thirdly it can be argued that we should measure a defendant’s taking of a risk against a reasonable person
because this is a good way of judging what is acceptable and it helps us to predict outcomes based on
what a reasonable person would do. However it could also be argued that everyone is different and so we
should not be compared to a set reasonable standard as it takes away our individualism and in reality we
are not all the same.

To conclude, intention and recklessness are both crucial parts of the mens rea of crimes. They are similar
because they are both mental elements in crime and link to risk. They differ because intention is about the
defendant’s aim whereas recklessness is about the careless taking of risk. There are many uncertainties
surrounding the definitions of intention and recklessness because it is not clear why recklessness is
punished or why it should matter that the defendant considered risk and there are issues with comparing
each defendant to a set ‘reasonable man’. In order to clarify the definitions of intention and recklessness
we need to look at the function of the criminal law, the effect different definitions have on society and the
way in which the definitions could change how risk taking is viewed by society.