Mens Rea: The Guilty Mind
- Subjective recklessness: what D did realize
- Objective recklessness: what D should’ve realized
- Cunningham 1957:
o Historically, malice didn’t require proof of evil but it did require either an intention to do harm, or recklessness as to whether such harm occurred
o D decided to take out the gas metre from his neighbour’s house to get the money from inside it
o Disconnected it from the pipe and broke the pipe so the gas poisoned his neighbor
o S23 OAPA 1861:
§ Unlawfully and maliciously administering poisonous/noxious substance
o Had he done this maliciously?
o Court directed jury of whether there was ‘evil’
o This direction was wrong
o No proof of wickedness was required: unreasonable risk and was aware of the existence of the unreasonable risk
o Cunningham test was subjective
- Background to Caldwell 1982:
o Law Commission wrote a review on the mental element of criminal law
o Subjective recklessness should be part of criminal law
o ‘Maliciously’ should be replaced by ‘recklessly’ or ‘intentionally’ – subjective recklessness adopted
o Criminal Damage Act 1971: came from the report but gave no definition of recklessness – had recklessness and intention instead of malice
o Subjective recklessness was still being adopted
o Stephenson 1979
- Caldwell 1982:
o Criminal damage case: set fire to curtains in a hotel
o Lord Diplock criticized ‘subjective recklessness’
o ‘The only person who knows what the accused’s mental processes were is the accused himself.’
o Difficult for the jury to put themselves in D’s shoes
o No reason to assume that Cunningham’s recklessness applied to the 1971 Act
o Recklessness is an ordinary English word, it doesn’t need a new statutory definition
o Lord Edmund-Davies said, contrary to Diplock, that the Cunningham test should be adopted
o Objective test instead
o Criminal Damage Act 1971:
§ Obvious risk
§ Didn’t give any thought
o Obvious to the ordinary person
o Obvious to D?
o Elliott v C (A Minor) 1983:
§ S1 Criminal Damage Act 1971
§ Girl had learning difficulties
§ Set fire to a shed
§ She didn’t appreciate the risk she was running
§ She hadn’t thought about it: and even if she had, she wouldn’t have appreciated the seriousness of the risk
§ ‘Creates an obvious risk’: obvious to a reasonably prudent man – Caldwell
o Problems:
§ Different tests for different offences
§ Higher value on property than on people because it is easier to convict on criminal damage than offences to the person?
§ What happens if D foresees a problem the ordinary person wouldn’t foresee? Reid 1992
§ Doesn’t appear to require any blameworthiness
§ Is there a loophole?
· Caldwell 1982:
o When he does that act, he either:
1. Hasn’t given any thought to there being any risk; or
2. Has recognized that there was a risk involved but acted anyway
· Chief Constable of Avon v Shimmen 1987:
o Said he was so well trained that he could kick towards the window without actually hitting it
o Was he reckless in kicking towards the window? No at trial court; yes at appeal court
o He merely minimized the risk in his own mind, hadn’t completely excluded it
· G and Another 2003
o G and another boy went out camping
o Discarded papers outside a shop
o Set fire to pieces of paper, left
o One piece of paper had landed in a wheelie bin, set alight, set another building alight
o Charged under the Criminal Damage Act – Caldwell test
o 11/12 year olds
o Lack of comfort in applying the test to young people
o Ordinary prudent person, not ordinary 12 year old
o Options for House of Lords:
§ Compare child Ds with children of the same age:
· Would offend the principle that conviction should depend on proving the state of mind of the individual defendant to be culpable
· Any modification would open the door to difficult arguments concerning the qualities and characteristics to be taken into account for purposes of comparison
· Modifying would substitute one misinterpretation of s1 for another
· Rejected
§ Modify Caldwell on a broader sense:
· Only regard D who hasn’t considered a risk as reckless if the risk would have been obvious to him if he had thought about it
· Over-complicates things for jury
· Rejected
§ Returned to Cunningham recklessness
· 1971 definition of recklessness:
o ‘Malicious’ is interpreted as intention or recklessness
Foresight of consequence important
- Objective recklessness: what D should’ve realized
- Cunningham 1957:
o Historically, malice didn’t require proof of evil but it did require either an intention to do harm, or recklessness as to whether such harm occurred
o D decided to take out the gas metre from his neighbour’s house to get the money from inside it
o Disconnected it from the pipe and broke the pipe so the gas poisoned his neighbor
o S23 OAPA 1861:
§ Unlawfully and maliciously administering poisonous/noxious substance
o Had he done this maliciously?
o Court directed jury of whether there was ‘evil’
o This direction was wrong
o No proof of wickedness was required: unreasonable risk and was aware of the existence of the unreasonable risk
o Cunningham test was subjective
- Background to Caldwell 1982:
o Law Commission wrote a review on the mental element of criminal law
o Subjective recklessness should be part of criminal law
o ‘Maliciously’ should be replaced by ‘recklessly’ or ‘intentionally’ – subjective recklessness adopted
o Criminal Damage Act 1971: came from the report but gave no definition of recklessness – had recklessness and intention instead of malice
o Subjective recklessness was still being adopted
o Stephenson 1979
- Caldwell 1982:
o Criminal damage case: set fire to curtains in a hotel
o Lord Diplock criticized ‘subjective recklessness’
o ‘The only person who knows what the accused’s mental processes were is the accused himself.’
o Difficult for the jury to put themselves in D’s shoes
o No reason to assume that Cunningham’s recklessness applied to the 1971 Act
o Recklessness is an ordinary English word, it doesn’t need a new statutory definition
o Lord Edmund-Davies said, contrary to Diplock, that the Cunningham test should be adopted
o Objective test instead
o Criminal Damage Act 1971:
§ Obvious risk
§ Didn’t give any thought
o Obvious to the ordinary person
o Obvious to D?
o Elliott v C (A Minor) 1983:
§ S1 Criminal Damage Act 1971
§ Girl had learning difficulties
§ Set fire to a shed
§ She didn’t appreciate the risk she was running
§ She hadn’t thought about it: and even if she had, she wouldn’t have appreciated the seriousness of the risk
§ ‘Creates an obvious risk’: obvious to a reasonably prudent man – Caldwell
o Problems:
§ Different tests for different offences
§ Higher value on property than on people because it is easier to convict on criminal damage than offences to the person?
§ What happens if D foresees a problem the ordinary person wouldn’t foresee? Reid 1992
§ Doesn’t appear to require any blameworthiness
§ Is there a loophole?
· Caldwell 1982:
o When he does that act, he either:
1. Hasn’t given any thought to there being any risk; or
2. Has recognized that there was a risk involved but acted anyway
· Chief Constable of Avon v Shimmen 1987:
o Said he was so well trained that he could kick towards the window without actually hitting it
o Was he reckless in kicking towards the window? No at trial court; yes at appeal court
o He merely minimized the risk in his own mind, hadn’t completely excluded it
· G and Another 2003
o G and another boy went out camping
o Discarded papers outside a shop
o Set fire to pieces of paper, left
o One piece of paper had landed in a wheelie bin, set alight, set another building alight
o Charged under the Criminal Damage Act – Caldwell test
o 11/12 year olds
o Lack of comfort in applying the test to young people
o Ordinary prudent person, not ordinary 12 year old
o Options for House of Lords:
§ Compare child Ds with children of the same age:
· Would offend the principle that conviction should depend on proving the state of mind of the individual defendant to be culpable
· Any modification would open the door to difficult arguments concerning the qualities and characteristics to be taken into account for purposes of comparison
· Modifying would substitute one misinterpretation of s1 for another
· Rejected
§ Modify Caldwell on a broader sense:
· Only regard D who hasn’t considered a risk as reckless if the risk would have been obvious to him if he had thought about it
· Over-complicates things for jury
· Rejected
§ Returned to Cunningham recklessness
· 1971 definition of recklessness:
o ‘Malicious’ is interpreted as intention or recklessness
Foresight of consequence important
