Elements of Criminal Liability

1. Elements of Criminal Liability Mens Rea - Recklessness

2. Objectives • Identify what is meant by the term recklessness in criminal law • Identify the key case law that covers criminal recklessness • Describe the difference between specific and basic intent crimes

3. Definition • The level of mens rea, lower then intention, wherein defendant knows there is a risk but goes ahead and takes it anyway.

4. Recklessness • Some crimes require the lower level of mens rea • Recklessness = subjective recklessness • D knows there is a risk of the criminal consequences • Is willing to take that risk • And then takes it deliberately • Have to look in defendant’s mind • Leading case is Cunningham (1957)

5. R v Cunningham (1957) Case Law Mens rea - subjective recklessness - used in most crimes - malice means "reckless or intention” D went into the cellar of an house that was converted into two.  He tore the gas meter from the wall and from its pipes and stole money from it. He did not turn off the gas at a stop tap nearby and gas escaped, seeped through the dividing wall of the cellar and partially asphyxiated his prospective mother-in-law, who was asleep in her bedroom. D was charged, with having unlawfully and maliciously caused W to take a certain noxious thing, coal gas, so as thereby to endanger her life. Principle – The correct test is whether D foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. This is so, even if D did not intend the injury to V. [Cunningham Recklessness] The word "maliciously" in a statutory crime means foresight of consequence, it does not mean "wicked". It can be either an actual intention to do the particular kind of harm, or recklessness whether such harm should occur or not. It does not it require, any ill-will towards the person injured. Not guilty (on misdirection) 5

6. Subjective Recklessness • Not limited to just ill-will towards person injured and so therefore does not require specific ill-will towards person injured • Make sure you can distinguish between recklessness and oblique intent in an exam question

7. Specific and Basic Intent Crimes • The availability of a defence often depends on whether the crime is one of specific or basic intent. • This distinction is one of intention • Offences of specific intent require intention for the mens rea. No other level of mens rea will suffice. • The key examples of specific intent offences are murder, s.18 Offences Against the Person, theft, Burglary and robbery. • Most crimes are offences of basic intent. For these offences, either recklessness or intention is sufficient.

8. Criminal Offences Specific Intent Basic Intent Intention only is required Recklessness is acceptable Murder, s18 OAPA, Theft, Burglary, Robbery Involuntary manslaughter, s20 OAPA, s47 OAPA, Assault, Battery

9. Try these – which type of mens rea? • A young girl was struck twice whilst playing in the forecourt of a block of flats by two airgun pellets, which had been fired from a window by the appellant. He admitted to the police that he had fired a few shots out of the window, not in order to hit anyone, but to see how far the pellets would go. (Based on Spratt (1990).

10. Try these – which type of mens rea? • Unknown to the science tutor in charge, a student went out of the lesson and took with him a boiling tube of concentrated acid. He went into one of the toilets. He then heard footsteps in the corridor outside the toilet, panicked and poured the acid into the hot air dryer, the nozzle of which was pointing upwards. He intended to return later to deal with the acid in the dryer. However, some time later another student went to the toilet to wash his hands. He turned on the dryer. The acid was ejected onto his forehead and trickled down the right side of his nose. It caused a permanent scar. (Based on DPP v K (1990).

11. Objectives • Identify what is meant by the term recklessness in criminal law • Identify the key case law that covers criminal recklessness • Describe the difference between specific and basic intent crimes