MENTAL ELEMENT IN CRIME - THE LAW COMMISSION'S REPORT NO 89, PART 1 - THE MEANING OF TERMS

• NCJ Number: 57855
• Journal: Criminal Law Review Dated: (OCTOBER 1978) Pages: 588-592
• Author(s): G WILLIAMS
• Date Published: 1978
• Length: 6 pages
• Corporate Author: Sweet and Maxwell
• Publication Format: Article
• Language: English
• Country: United Kingdom

Annotation

THE BRITISH LAW COMMISSION'S EXPLANATION OF THE MEANINGS OF THE TERMS 'INTENTION,' 'KNOWLEDGE,' AND 'RECKLESSNESS' AS THEY APPLY TO THE MENTAL ELEMENT IN CRIMES IS CRITIQUED.

Abstract

THE BRITISH LAW COMMISSION (A BODY ESTABLISHED TO PROVIDE EXPERT GUIDANCE TO PARLIAMENT ON LAW REFORM) RECENTLY PUBLISHED A REPORT ON THE 'MENTAL ELEMENT IN CRIME,' A PORTION OF WHICH DEALS WITH RECOMMENDATIONS FOR DEFINITIONS OF THE TERMS 'INTENTION,' 'KNOWLEDGE,' AND 'RECKLESSNESS.' ACCORDING TO THE COMMISSION, INTENTION IS TO BE DETERMINED BY ASKING WHETHER THE ACCUSED EITHER INTENDED TO PRODUCE THE RESULT OR HAD NO SUBSTANTIAL DOUBT THAT HIS CONDUCT WOULD PRODUCE IT. THE OBJECTION TO THE FORMULA CHOSEN BY THE COMMISSION IS THAT IT MAY INVOLVE THE JUDGE IN EXPLAINING TWO DIFFERENT AND YET CONFUSINGLY SIMILAR CONCEPTS TO THE JURY--THE EXISTENCE OF INTENTION OR THE PRESENCE OF NO DOUBT AS TO THE CONSEQUENCE OF THE DEED. SECONDLY, THE DEFINITION OF INTENTION IMPLIES THAT THE MERE KNOWLEDGE OF THE PROBABILITY OF A CONSEQUENCE IS NOT AN INTENTION, BUT THIS IS NOT CLEAR IN THE DRAFT. SINCE THIS CONCEPT DOES CHALLENGE PREVALENT VIEWS OF INTENTION, IT SHOULD BE MORE THAN IMPLIED. A PRINCIPAL CRITICISM OF THE COMMISSION'S DELINEATION OF INTENTION IS ITS NOTION THAT INTENTION CAN BE APPLIED TO PRESENT CIRCUMSTANCES; FOR EXAMPLE, THE CIRCUMSTANCES OF POSSESSING ILLEGAL DRUGS MEANS THAT THE POSSESSION OF THOSE DRUGS WAS INTENDED. SUCH AN INTERPRETATION OF INTENTION IGNORES THE POSSIBILITY THAT THE ACCUSED MAY BE UNAWARE OF THE NATURE OF THE SUBSTANCE POSSESSED. 'KNOWLEDGE' REQUIRES THAT THE ACCUSED KNOW OF THE RELEVANT CIRCUMSTANCES OR HAVE NO SUBSTANTIAL DOUBT OF THEIR EXISTENCE; AND 'RECKLESSNESS' REQUIRES THAT THE ACCUSED FORESEE THAT HIS CONDUCT MIGHT PRODUCE THE RESULT AND THAT IT WAS UNREASONABLE FOR HIM TO TAKE THE RISK OF PRODUCING IT. THESE DEFINITIONS ARE GENERALLY ACCEPTABLE. IT IS REGRETTABLE THAT THE COMMISSION HAS SUGGESTED THAT ITS PROPOSALS ONLY BE APPLIED TO FUTURE LEGISLATION, WHEN EXISTING LEGISLATION NEEDS THE CLARITY PROVIDED IN THIS REPORT. FOOTNOTES ARE INCLUDED. ALSO SEE NCJ 57856. (RCB)