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Summary Criminal Law - Basic Intent Crimes
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Mens Rea Cunningham Test Negligence
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BASIC INTENT CRIMES – RECKLESSNESS, NEGLIGENCEMR for Basic Intent Crimes:
Recklessness; being reckless - Defined first in: Cunningham 1957
The charge was maliciously administering poison or a noxious substance …so as to endanger life
contrary to s23 Offences Against the Person Act 1861
Cunningham 1957: C intends to Case outcome: found guilty
steal money from a coin operated gas The judge defined the word in the definition which
meter inside an apartment, causes the indicated MR had to be proved
gas pipe to break - the gas escapes That word = ‘maliciously’
freely. It percolates through the wall
He interpreted it to mean- conscious risk taking or Being
into the adjoining apartment - A
woman sleeping there was affected by
aware of a risk but going ahead regardless
breathing in the coal gas. C charged
under s23 OAP Act 1861
State of Knowledge of, or an appreciation of, the risk must be proved to have entered his mind
Mind: even though –
He may have disregarded, suppressed or dismissed it
The risk must be one which in the circumstances, is unreasonable to take
To prove the Cunningham concept of subjective recklessness is: conscious,
unjustifiable risk taking
Query? The jury accepted that C knew of or was aware of the risk posed by gas and held him
liable
But what was the likely thing that someone in his position would be aware of?
- the risk of fire or an explosion surely
- would poisoning have occurred to him?
A new Just as the Hyam case gave rise to the need to develop a new alternative method of
problem: proving intention for specific intent crimes so too in the 1970s-80s it was considered
necessary to develop a new alternative to prove recklessness for basic intent crimes.
WHY? (Mrs. Hyam claimed: “ I did not intend death or GBH…….) What might Mr.
Cunningham have claimed?
The Nature of the Cunningham Test
The test (conscious risk taking) is subjective
EG: it requires proof of the consciousness/awareness of the defendant, not some other person
Cunningham type recklessness is: Subjective or advertent recklessness
Stephenson 1979: Homeless man set fire in the middle of a haystack to stay warm
The argument – recklessness requires knowledge, consciousness, foresight, awareness- so, the blissfully
unaware should not be liable
Convicted but lawyers appealed and argued that there was a misdirection by the judge
“I was not aware of any risk therefore I cannot be liable of the basic intent offence with which I am
charged!”
Stephenson was schizophrenic and therefore may not have been aware of or appreciated a risk
obvious to normal people
Conviction was quashed
Caldwell 1981 – HOL (now SC) – got to address the loophole in recklessness provided by Stephenson’s case -
Caldwell was employed by a small hotel as a handyman, but he didn’t do it well, the hotel managers weren’t
satisfied and fired him, he felt he was wronged and developed a grudge – one night he went to the hotel and
poured petrol on 1 wall of the hotel and set it alight – criminal damage no one was hurt – for this offence you only
need to prove MR (Recklessness)
Lord Diplock provided an alternative definition to avoid the loophole provided in Cunningham:
“You are reckless if you fail to think about a risk that a reasonable person would have thought about” - EG:
failure to think – is recklessness
(Lord Diplock intended either Cunningham or Caldwell type of recklessness to satisfy mens rea for
basic intent crimes.)
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