Assignment

Question

b) Compare and contrast intention, recklessness and negligence.

Generally the essay question will follow the pattern of IRAC, i.e Introduction, Rules, Analysis
and finally conclusion. ALWAYS FOLLOW IT IN ESSAY QUESTION.

Introduction:

Para 1: the question is very specific regarding the state of mind, that is Mens rea, Students should
explain that how criminal liability is actually formed and then emphasis that the statement requires
analysis regarding the subject vs. Object fault used in criminal law. So the first Part of the Introduction
is explanation of the given statement. Don’t go into too much detail here just briefly expand on the
statement to show the examiner that you understand the nature of Question.

Second and most Importantly in the introduction of question, ALWAYS GIVE ROAD MAP. Road map
is simply the Skelton of your essay. You can briefly state that first I will explain why the Mensrea
requirement is important in criminal and then discuss the two types of fault. You can also mention that
generally in Criminal law subject fault is taken into account for majority of offences due to strict
punishments. Furthermore you should highlight that this answer would include the discussion
regarding the problems faced by court in crimes of specific intent. Cases such as Hyam, Nedrick and
Woolin would be discussed. Similarly how courts drifted towards objective reckleness, in contrast of
Cunninghum and Cladwell case law.

(DONOT EXPLAIN THESE CASES ABOVE, JUST MENTION THEM)

RULES:

Discuss objective vs subjective. In this part define and explain.

Intention

Recklessness and negligence

Analysis (From the exam report)

A general statement about how intention, negligence and recklessness figure in criminal liability. The
presence of intention and/or recklessness make it fair to subject the defendant to censure and
punishment as they indicate the accused chose to act wrongfully. Negligence requires a different
justification, e.g. failing to live up to one’s capacities when others would do so. A good answer would
also define intention (direct and indirect), negligence and recklessness.

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

Comparing

Both intent and recklessness are forms of subjective fault. Credit should be given for stating that
Caldwell recklessness involved objective fault which was a point of contrast with intention but a point
of comparison with negligence. The former involve degrees of choice/commitment to the outcome
which render the punishment deserved. Although this is not expected, a very good answer will explain
how the fault terms reflect the retributive theory of punishment. It will also explain that for many crimes
intention and recklessness are alternative fault terms indicating that the fault addressed by
punishment is choosing to do wrong generally rather than aiming to do wrong specifically. Indirect
intention and recklessness have fault based on foresight of the consequences in common.

Contrasting

   Intention and recklessness are subjectively assessed. Negligence is assessed objectively.

   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. Negligence requires no degree of commitment to the outcome.
   Directly intended consequences are desired. Recklessly and negligently 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 and negligence 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 (indirect) 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 Woollin special direction makes this difference more theoretical than real.
   Indicative cases include Hyam, Hancock, Moloney, Woollin, Cunningham, Atephenson,
Parker, Caldwell, G, McCrone v Riding and Adomako.

Give Conclusion at the end. It can be simple as why it is preferred to have subjective fault.