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‘Intention and recklessness again’ – a response

Published online by Cambridge University Press:  02 January 2018

Jenny McEwan  and
John Robilliard
Jenny McEwan
Affiliation:
University of Manchester
John Robilliard
Affiliation:
University of Manchester
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Extract

The reply of Professor Williams to our article ‘Recklessness: the House of Lords and the criminal law’ is interesting and vigorous. We continue, however, to adhere to our original view, and attempt below to summarise our objections to what appear to be his main arguments on the law. On the moral issue, we do not consider that Professor Williams has answered the arguments for ‘Caldwell - recklessness’ put forward by Duff. We find the Professor's philosophical position somewhat confusing. Why is it acceptable to convict those who fail to appreciate an obvious risk because of ‘blind rage’ or self-iduced intoxication, but not those whose failure to appreciate it arises from total indifference to the well-being of others?

We should like to make the following points in reply to those charges against us which seem the gravest.

Type
Research Article
Information
Legal Studies , Volume 2 , Issue 2 , July 1982 , pp. 198 - 201
Copyright
Copyright © Society of Legal Scholars 1982

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References

1. (1981) 1 LS 267.

5. [1981] 1 All ER 961.

3. [1980] Crim LR 282. Professor Williams’ refutation of Duffs view is contained in a footnote, [1981] CLJ 252 at 258, apparently relying on the argument that someone who claims that he failed to perceive an obvious risk is not to be believed. (This point arises below, p. 201). We will not anticipate here Duffs own reply, which we believe to be forthcoming).

4. Lawrence [1931] 1 All ER974 at977. McEwan and Robilliard, op. cit. p. 279; cf. Syrota. [1982] Crim LR 97 at 102–6.

5. Cf. Duff, op. cit., and Syrota, op. cit. But see below, n.11; recklessness includes foresight of an undesired possibility.

6. [1977] 2 All ER 341.

7. McEwan and Robilliard, op. cit. p. 283. And see below, Lamb, 11.25.

8. (1982) 2 LS 189 at 191.

9. Supra, n.2 at 969.

10. Page 195, ante

11. [1976] AC 182 at 216–7: McEwan and Robilliard op. cit. pp. 274, 279. Now see also, R v Pigg (1982) Times, 11 February.

14. [1978] Crim LR 5 and 14.

13. [1859] IF and F 664.

14. (1947) 32 Cr App Rep 61.

15. (1960) 44 Cr App Rep 261.

16. Byrne J. supra, at 267.

17. Ibid at 289. One of the cases relied on by Byrne J was Steane!

18. (1915) 11 Cr App Rep 63.

19. Cunningham [1957] 2 All ER 412; Mowatt [1968] 1 QB 421.

20. Supra, n.11.

21. It would be unnecessary for the House to consider the question of intention as relates to the act of intercourse because of its nature it must be intended. That was not the issue-as far as we know, the accused in Morgan never denied that he intended to have sex - the question was his state of mind regarding her lack of consent. But Professor Williams seems to take the requirement of intention in Morgan as one which relates to that act, so that he feels able to say at 194, ‘notwithstanding the predominance of the rapist's intention, the fact remains that if he runs the risk of the woman's not consenting, he is reckless’. This interpretation is certainly possible if one makes a priori assumption that all references in Morgan to the need to show the accused's awareness of the risk that the woman does not consent refer to recklessness and not intention.

22. Syrota gives similar examples in relation to reckless driving and criminal damage, op. cit., pp. 99–100. On rape, now see R v Pig, supra; the Court of Appeal applied Caldwell recklessness to rape, and seemed to think it possible ‘that the man was indifferent and gave no thought to the possibility that the woman might not be consenting’.

23. Duff, op. cit., Syrota, op. cit.

24. [1963] 1 QB 935; discussed, McEwan and Robilliard op. cit. pp. 278, 284–5.

25. [1967] 2 QB 981.