Criminal Law (2014): Intention & Recklessness

In English law what is meant by:
(a) intention; and
(b) recklessness.

What do these two states of mind have in common, what differentiates them, and why has there been uncertainty surrounding their definition?

General remarks
Most candidates know what intention means and what recklessness means. They also know the different forms of intention and recklessness. This question tests your understanding of these fault elements. Only if you know what they have in common and what differentiates them can you manifest such understanding.

Common errors
Many candidates simply regurgitated lecture notes on intention and recklessness, making little or no attempt to compare and contrast. It was not expected that you should identify all or even most of the points of contrast and comparison so long as you mentioned some key points. That would be enough to get a decent mark if well written and discussed.

A good answer to this question would…
contain the following indicative elements:

• how intention and recklessness figure in criminal liability.
• definitions and brief outlines of the elements of each offence
• indirect intention has been successfully separated from recklessness by Woollin. It would be useful to explain why it is important that the courts should be able to distinguish intention from recklessness and how, following Hyam, they were once conflated.

The following are the some of the more obvious points of comparison and contrast.

Comparing

• Both are forms of subjective fault. Caldwell recklessness (no foresight required) involved objective fault which was another point of contrast with intention rather that a point of comparison.
• Both involve degrees of choice/commitment to the outcome which render punishment deserved. A very good answer would explain how the fault terms reflect the retributive theory of punishment.
• Indirect intention and recklessness have fault based on foresight of the consequences in common.
• Objective and subjective recklessness. Indicative cases are Cunningham, Stephenson, Parker, Caldwell, Elliot, R v G.

Contrasting

• Recklessness reflects a lesser degree of commitment to the outcome than intention (desire versus willingness to run risk) and so may represent a lesser degree of fault justifying lesser label and penalty.
• Directly intended consequences are desired. Recklessly caused consequences are not. We have indifference at most.
• Indirect intention requires knowledge of the certainty that a consequence will ensue. Recklessness requires simply awareness of the risk that it may ensue. The two still are difficult to separate at the top end where the accused foresees the very high probability of the consequence.
• Recklessness, as a fault term, requires the risk taken to be unjustified (i.e. good motives stop risk-taking from being blameworthy and punishable).
  This is not the case with (oblique) intention. One can obliquely intend a consequence (and so be punished for it) even if one has a good motive. A very good answer will make the caveat that the Woolin special direction makes this difference more theoretical than real.

The source of uncertainty

• The influence on intention’s uncertain meaning of motive Adams, Gillick, Re A etc. The Woollin direction allows the jury to take account of motive due to the ambiguity of the judicial direction.
• The influence on intention's uncertain meaning by ‘wicked’ killings (e.g. Hyam).
• The influence on recklessness's uncertain meaning by indifferent mindlessness, particularly in criminal damage (e.g. Parker, Caldwell).
• The influence on recklessness's uncertain meaning by the errors of the young and inexperienced, particularly in criminal damage (e.g. Stephenson, Elliot, R v G).

Poor answers to this question…
typically did not define the terms properly nor compared or contrasted, nor explained the source of uncertainty.