Essay: Concept of culpability – at the heart of criminal law

At the heart of criminal law is the concept of culpability. The importance of culpability ensures that the defendant is punished representatively of their specific wrongdoing and their blameworthiness is determined through their intention. Although for other offences in criminal law culpability is well affirmed, problems arise with regard to homicide law. Culpability within homicide laws is unsatisfactory as it does not collaborate well with the moral aspect required by the principle of fair labelling or certainty of just outcomes. Homicide law consists of only two offences; murder manslaughter. There is a thin line between the two offences, and the lack of clarity and certainty that the two most heinous of crimes ought to encompass does no favours in differentiating between each offence. It is important to reflect on the historical standing of intent along with a discussion of intent in relation to the mens rea of homicide and reform past and future, this way it will become apparent why this statement is wholly accurate.
1. CULPABLE INTENT-THE MENS REA OF HOMICIDE
The culpability of the accused is what determines the extent of their criminal liability, meaning the blame on the accused is appropriated suitably and justified by a certain level of intention they had to commit the crime. Culpability can, therefore, be determined based on the mens rea of the accused.
There are three levels of mens rea; intention, recklessness and negligence. Intention requires the highest degree of culpability, meaning someone who had the intention to carry out an unlawful act will be naturally more blameworthy than somebody who has acted recklessly or negligently and finally strict liability which merely has an element of mens rea. Although this is well established in the current law, in terms of homicide law, there has been many issues.
As mentioned, the concept of intention has now been established however, it has been one of contention with regard to homicide law. Homicide, even though consisting of the most heinous of crimes, the mens rea has never been confirmed. There is a certain degree of elasticity that creates a lack of clarity, ultimately prohibiting effective judgement of culpability. Smith was the first of many cases in which the concept of intention was subject to a test of objectivity. The facts are inessential but it should be noted that the court held: when determining the mens rea of the accused, there was to be no exploration into his mental state but instead, a presumption of intent was imposed. Section 8 of the Criminal Justice Act 1967 shut down this presumption soon after and highlighted the necessity of subjectivity in determining culpability. However, this was only one element of clarity, (or lack of) that was resolved, as the courts again faced, for many years and still to current law, defining ‘intention’.
Intention itself can be split into two categories; direct and oblique. With direct intention, conduct achieves the desired result; oblique, or indirect, intention, is a lot wider. With indirect intention, a result may not be desired, nor have been an aim or purpose. For years the courts have faced difficulty in determining an understanding of oblique intention, and; even today still struggle. The case of Hyam was the case that first tackled the concept of oblique intent. This set out that intention is present firstly where there was a desire for a consequence to occur and that the consequence is subsequent to actions, and secondly, where a result is not desired, but the accused carries out the act ‘knowing full well’ the consequence is ‘likely’; a foresight of high probability which will amount to intention.
Further down the line, the House of Lords was presented with the cases of Moloney, Hancock and Shankland and Nedrick; all of which concerned the difficulty of defining intention. In Moloney after a period of heavy drinking, the appellant ‘accidentally’ killed his stepfather after a gun loading contest; claiming “I didn’t want to kill him… I loved him, I adored him”. In Hancock and Shankland, the appellants dropped a concrete post from a bridge subsequently killing a taxi driver who was taking a working miner to work. They were persistent their intention was to frighten the miner into striking and that they had zero intention to kill or to inflict any kind of harm. In both these cases the jury was directed in terms of the definition of intention given in Hyam, and in both cases the jury convicted of murder. The first of the two, Moloney, the conviction for murder was substituted for one of manslaughter whilst the latter, Hancock and Shankland, faced no opportunity of a substitution.
Lord Bridge accepted the first meaning of intention but not accept the second, which was given in Hyam; foresight of a highly probable consequence. Instead, foresight should be evidence from which intention can be inferred by a jury. He said only in rare cases a jury should have to be directed in terms of foresight of consequences, and in these cases, there should be two questions: 1. “Was death or really serious injury in a murder case…a natural consequence of the defendant’s voluntary act”? 2.”did the defendant foresee that consequence as being a natural consequence of his act?” If they answer yes to both questions then it is a proper inference for them to draw that he intended that consequence.
This, however was not adopted by Lord Scarman in Hancock as he found it to be misleading because neither of the questions directly referred to probability. This would not be confined merely to rare cases as it would extend the number of cases an inference could be made as a result could be a natural consequence even if there was a low probability of it occurring. Scarman further noted that direction should be used very limitedly and only to cases of real difficulty. This was the approach the law took its stance in until in Nedrick when the Court of Appeal acknowledged cases of indirect intent were ‘cases of real difficulty’ and returned to a model direction. The case facts of Nedrick were very similar to Hyam in which the appellant after threats to the victim to ‘burn her out’ went to her house, poured paraffin through the letterbox and set it alight. Subsequently, the house burnt down and one of the children died. The conviction of murder was quashed and substituted one of manslaughter. At this point, Lord Lane CJ gave a direction to be used in cases of indirect intent only:
“where the charge is murder…the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty…as a result of the defendant’s actions and that the defendant appreciated such was the case.”
This made clear for juries when intention can be inferred from foresight; rather a narrower appreciation of the concept should be affirmed so that there is foresight of virtual certainty. This narrowing of the concept meant overlap with recklessness was limited which in turn, reduced the scope of the law of murder. This, however did not come into play at this moment because of binding rules. It remained the case that intention when inferred from foresight of virtual certain result, still had no meaning; the concept of indirect intent was once again in the air.
Years later arose the case of Woolin which once more, considered the concept of indirect intent. This case saw the appellant convicted of murder after losing his temper, and killing his three-month-old son. The fact in question was whether he had intended to cause any serious harm to which he denied any such intention. Initially, the Nedrick approach was adopted but shortly after, the trial judge opted to direct the jury interns of a substantial risk. This meant a wider approach once again as an inference of intention could be inferred from the foresight of lower risk. The House of Lords quashed the murder conviction and substituted one of manslaughter. Lord Steyn in his judgement noted that the ‘decision in Hyam had resulted in the law of murder being in a state of disarray’.
At first instance given was a misdirection because the use of ‘substantial risk’ created an overlap between intention and recklessness; and; between murder and manslaughter whilst making the scope for mens rea much too broad. The word ‘find’ was substituted for ‘infer’; an alteration which has been given much academic approval as it moves away from inferring a state of mind. Thus the mens rea for murder now has two meanings. Firstly, where there is direct intent and secondly indirect intent, where the primary purpose is not to kill but he foresees that result as a virtually certain consequence for his act.
The constant alterations on intention evidenced through homicide case law illustrate the lack of clarity and certainty surrounding intention, and inadvertently, jeopardise effective culpability. Although this in itself is a major issue, there are further complications stemming from the concept of intention that obstructs the role of culpable intent.
2. ISSUES IN HOMICIDE LAW
An issue at the root of homicide law is the intent to cause grievous bodily harm (GBH). It was established in 1967 in the case of Cunningham, that intention, of any kind, to cause GBH that results in death satisfies the mens rea for murder. This means the courts are left to determine the extent of harm the accused intended-it should be noted that GBH includes ‘serious harm’. With the mens rea for murder lacking actual intention to kill, murder is a crime of constructive liability. Through this, someone with absolutely no intention to kill can be found guilty of murder. This completely disregards any notion of moral culpability, impeding the principle of ‘fair labelling’ and the issue of sentencing.
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