Criminal Law - Essay Example

Outline How successful are the courts in distinguishing ‘intention’ from ‘recklessness’? Criminal law’s customary definition of ‘intention’ involves purpose and ‘foresight of virtual certainty’ (Simester & Smith 1996, 177). It is hence unjustifiable for the defendant condemned of perpetrating A to claim that his/her intention in behaving hence was merely to carry out B: if s/he recognised that, by committing B, s/he was also practically definite to cause A, s/he is thought to have planned A. This is the analysis created by Nedrick: ‘thus if a defendant who knowingly caused a certain result seeks exculpation, this may only be found if one of the defences to criminal liability can be invoked’ (Simester & Smith 1996, 177). The notion of intention has no critical component. Therefore, it is more limited, practically speaking, than notions of recklessness: an action is not reckless if it is considered socially acceptable (Robinson 1997). However, the courts have been variable in distinguishing ‘intention’ from ‘recklessness’, which can be seen in the following cases wherein the courts have advocate much narrower or much broader definitions. The resolution of the House of Lords in Hyam is famous for its broad description of intention, which involved several instances of prescience of simple possibility, and yet Lord Hailsham claimed that a physician who injures a patient by ‘cutting him open’ would not be culpable of a crime since he would not have the mandatory intent (Robinson 1997). Initially this sounds unusual: did Lord Hailsham claim that the physician wounded the patient recklessly? A more plausible justification is that Lord Hailsham was connecting the legitimate notion of intention with the more ambiguous moral concept ‘guilty mind’ or ‘recklessness’ (Simester & Smith 1996), and supposed that since the physician has to be absolved the paramount or only means of guaranteeing this would be to declare that intention was absent. The above seems analogous to the assertions of Lord Scarman in Gillick that ‘the bona fide exercise by a doctor of his clinical judgement must be a complete negation of the guilty mind which is an essential ingredient’ (Simester & Smith 1996, 178) of an unlawful misdemeanour. These two legal claims bring into the notion of intention a critical element (Fletcher 2000) which has no place in the established principle. Another case which could reveal the inconsistency of the courts in defining the notion of intention is Steane. In this case, wherein the court narrowed the concept of intention, the Court of Criminal Appeal nullified the conviction of the accused under wartime directives for the crime of perpetrating behaviours likely to help the foe with intent to help the foe (Fletcher 2000). The Court resolved that if the conduct was as in agreement with a blameless intent, like rescuing his/her loved ones from a war zone, as with an unlawful intent, the adjudicators should be given the task of resolving the issue (Fletcher 2000). There are three bases on which Steane could be differentiated from the previous two cases. First, the crime was a ‘hidden’ purpose; secondly, it is questionable on the reality that not merely did the defendant not want to help the opponent, but he also may not have realised it practically assured that his deeds would help the opponent; and thirdly, there was the ground for a justification of force (Simester & Smith 1996). Nevertheless, the terms of the resolution of the Court indicate that none of these differentiations was trusted, and that the Court, in its apparent rush to nullify the conviction, adopted the idea that the intention of the defendant to rescue his family might contradict an intention to help the opponent (Simester & Smith 1996). This is at odds with the common principle, according to which it would be completely plausible to behave with the intention of rescuing one’s loved ones while also believing that the foe is practically assured to be helped by those deeds (Robinson 1997), or even to do something with the intention of rescuing one’s family through helping the opponent. The three cases evidently reveal the inconsistency of the courts in defining the concept of ‘intention’. Other cases might also be given—for example, a good deal of the judicial discussion in the foremost resolutions about the common definition of intention and then about distinguishing ‘intention’ from ‘recklessness’ may be intended to grant juries the chance to penetrate some social opinions into their resolution (Fletcher 2000). The scholastic disapproval of this perspective has been powerfully stated. Several authors would rather categorise the above cases as instances of intention, thus maintaining a dependable usage of the notion, and to create a justification to absolve (Fletcher 2000) the physician in situations such as occurred in Gillick. Undeniably, Sir John Smith remarked that the resolution of the House of Lords set in motion a ‘concealed defence of necessity’ (Simester & Smith 1996, 179). It is therefore argued in this essay that ‘intent’s’ common definition is not those espoused inconsistently by the courts: hence, it may be inaccurate to define it as common. And that the courts, thus far, have been unsuccessful in distinguishing ‘intent’ from ‘recklessness’. An independent assumption is that it is indefensible theoretically, being a misrepresentation of the appropriate definition of intent. This assumption has three premises. First, ‘purpose’ is the real definition of ‘intention’. An individual plans to carry out deeds that it is his/her purpose to carry out. However, purpose in this case does not denote the final goal of the action: it denotes to whether an individual has decided to bring about the forbidden outcome. An individual may decide to cause it either as a means to an end or an end in itself. Therefore, the demise of another individual is planned if it is decided to be a means to another objective, or decided to be the objective in itself. In the ‘injuring’ case presented in Hyam the physician certainly decided to bring about the outcome as a way to achieve another objective, such as rejuvenating the health of the patient. It would definitely be misleading to assert that, because a physician’s intention is to cure the patient, it is not also his/her intention to inflict injuries by cutting—that would simply be valid if it were not possible to behave with two objectives, which it is not. The factual definition is that the physician planned to injure the patient in order to cure him: the lesion was planned as a way to achieve an objective. References Fletcher, G.P. Rethinking Criminal Law. Oxford: Oxford University Press, 2000. Robinson, P.H. Structure and Function in Criminal Law. Oxford: Clarendon Press, 1997. Simester, A.P. & A.T.H. Smith (eds). Harm and Culpability. Oxford: Clarendon Press, 1996. Read More