¹ The same type of analysis could be applied to the Scottish courts' abject failure to define mens rea terms consistently. On recklessness, see F. Stark, “Rethinking Recklessness” 2011 Juridical Review 163Google Scholar.

² [1999] 1 A.C. 82.

³ The House of Lords concluded that intention could be found if the defendant acted in the face of acknowledged virtual certainty: R. v Woollin [1999] 1 A.C. 82, 96 per Lord Steyn, 97 per Lord Hope. The Court of Appeal had, in R. v Nedrick [1986] 1 W.L.R. 1025, talked in terms of inferring intention from foresight of virtual certainty (at p. 1028 per Lord Lane C. ;J.). The distinction is unimportant for present purposes, but see R. v Matthews and Alleyne [2003] EWCA Crim 192, [2003] 2 Cr. App. R. 30, at [43]-[46] per Rix L. J.; Kaveny, M. C., “Inferring Intention from Foresight” (2004) 120 L.Q.R. 81Google Scholar (hereafter Kaveny, “Inferring Intention from Foresight”).

⁴ At p. 90.

⁵ A. P. Simester, Spencer, J. R., Sullivan, G. R. and Virgo, G. J., Simester and Sullivan's Criminal Law: Theory and Doctrine, 4th ed. (Oxford 2010), 315Google Scholar (emphasis added) (hereafter Simester et al, Criminal Law).

⁶ See e.g. R. v Rowbotham [2011] EWCA Crim 433, at [15] (the trial judge's direction on intention was not criticised, but the defendant's appeal was allowed on another ground).

⁷ Further difficulties are caused by the fact that the jury may find intention where there is foresight of virtual certainty – they are not obliged to do so. See Norrie, A. W., Crime, Reason and History: A Critical Introduction to Criminal Law, 2nd ed. (London 2001), 56–58Google Scholar (hereafter Norrie, Crime, Reason and History).

⁸ See e.g. the discussion of the offence of possession of firearms and ammunition with intent to enable another to thereby endanger life (Firearms Act 1968, s. 16) in R. v Jones and Others [1997] 2 W.L.R. 793.

⁹ See R. v Pearman (1985) 80 Cr. App. R. 259. Here, it was emphasised that the jury could infer an intention to commit an offence if there was foresight of virtual certainty. The trial judge's direction was wrong because it equated intention with foresight. The status of this decision is unclear following Woollin, given the change from “infer” to “find” in the model direction (see n. 3, above). For discussion of whether, in theory, foresight of a virtual certainty should suffice for intention in the law of attempts, see Duff, R. A., Criminal Attempts (Oxford 1996), 369–371Google Scholar.

¹⁰ It is odd to talk about intention being found where a consequence was simply foreseeable. This view of intention was adopted in the law of murder in D.P.P. v Smith [1961] A.C. 290, and reversed promptly by legislation (Criminal Justice Act 1967, s. 8).

¹¹ Strictly, the defendant's mens rea should stretch to some aspects of the eventual crime. See Serious Crime Act 2007, s. 47(5).

¹² This is the view presented in Simester et al, Criminal Law, p. 294. There are further problems associated with the 2007 Act's mens rea requirements. See J. J. Child, “Exploring the Mens Rea Requirements of the Serious Crime Act 2007 Assisting and Encouraging Offences” (2012) 76 J. Crim. L. 220.

¹³ The line between foresight of virtual certainty and belief is thin in other areas of the law. See R. v Hall (1985) 81 Cr. App. R. 260, 264 per Boreham J. For an excellent summary of the doctrinal confusion concerning belief (until 1978), see E. Griew, “Consistency, Communication and Codification – Reflections on Two Mens Rea Words” in P. R. Glazebrook (ed.), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (London 1978), 57 at pp. 69–75 (hereafter Griew, “Consistency, Communication and Codification”).

¹⁴ [2003] UKHL 50, [2004] 1 A.C. 1034.

¹⁵ Based upon A Criminal Code for England and Wales (Law Com. No. 177, 1989), cl. 18(c). The defendant need only foresee the risk, not that it is unjustified for him to take it.

¹⁶ At [28].

¹⁷ Clarkson, C. M. V., Keating, H. M. and Cunningham, S. R., Clarkson and Keating: Criminal Law, 7th ed. (London 2010), 173Google Scholar.

¹⁸ D.P.P. v Majewski [1977] A.C. 443, 474–475 per Lord Elwyn-Jones. The Court of Appeal has distanced itself from the reading of Majewski that implies that proof of intoxication is itself proof of recklessness: R. v Heard [2007] EWCA Crim 125, [2008] Q.B. 43, at [30] per Hughes L. J. It nevertheless remains a viable reading of that case (see, also, R. v Kingston [1995] 2 A.C. 355, 369 per Lord Mustill).

¹⁹ For two theoretical treatments of this point, see: Dimock, S., “What Are Intoxicated Offenders Responsible For? The ‘Intoxication Defense’ Re-examined” (2011) 5 Criminal Law and Philosophy 1Google Scholar; Simester, A. P., “Intoxication is Never a Defence” [2009] Crim. L.R. 3Google Scholar.

²⁰ See R. v Brady [2006] EWCA Crim 2413.

²¹ R. v Adomako [1995] 1 A.C. 171, 187 per Lord Mackay. See, further, R. v Mark and Nationwide Heating Services Ltd [2004] EWCA Crim 2490.

²² Attorney-General's Reference (No. 2 of 1999) [2000] Q.B. 796, 809 per Rose L. J. Confusingly, Rose L. J. proceeded to explain how sometimes, proof of advertent recklessness will be crucial to establishing gross negligence, but other times it will not be. See, further R. v D.P.P. [2003] EWHC 693 (Admin), at [29] per Kennedy L. J.

²³ R. v Misra [2004] EWCA Crim 2375, [2005] 1 Cr. App. R. 21, at [55] per Judge L. J.; R. v Mark and Nationwide Heating Services Ltd [2004] EWCA Crim 2490, at [31] per Scott Baker L. J.

²⁴ R. v Parker [1977] 1 W.L.R. 600, 604 per Geoffrey Lane L. J.; Booth v C.P.S. [2006] EWHC 192 (Admin).

²⁵ R. v Caldwell [1982] A.C. 341, 358 per Lord Edmund-Davies; Galligan, D. J., “Responsibility for Recklessness” (1978) 31 C.L.P. 55Google Scholar, 68.

²⁶ See Crosby, K., “Recklessness: The Continuing Search for a Definition” (2008) 72 J. Crim. L. 313CrossRefGoogle Scholar.

²⁷ Cited in D. Ormerod, Smith and Hogan: Criminal Law, 12th ed. (Oxford 2008), 109 (n. 86). Although the Regulations remain in force, this offence is not cited in the most recent edition of Smith and Hogan.

²⁸ S.I. 2004/1818, reg. 2.

²⁹ [1982] A.C. 341.

³⁰ Attorney-General's Reference (No 3 of 2003) [2004] EWCA Crim 868, [2005] Q.B. 73, at [12] per Pill J. See, similarly: R. v Brady [2006] EWCA Crim 2413, at [13] per Hallett J.; R. v C [2007] EWCA Crim 1068, at [20] per Hughes L. J.

³¹ An additional problem arises where the term recklessness is applied in relation to both conduct and consequences/circumstances. See: Cunningham, S., “Recklessness: Being Reckless and Acting Recklessly” (2010) 21 King's L. J. 445Google Scholar; Simester et al, Criminal Law, p. 145.

³² Tadros, V., “The System of Criminal Law” (2002) 22 L.S. 448Google Scholar (hereafter Tadros, “The System of Criminal Law”).

³³ It is possible to be more specific. See e.g. J. Gardner, “On the General Part of the Criminal Law” in R. A. Duff (ed.), Philosophy and the Criminal Law: Principle and Critique (Cambridge 1998), 205. Gardner suggests mens rea terms are part of the “definitional general part”.

³⁴ R. v Cunningham [1982] A.C. 566.

³⁵ Theft Act 1968, s. 1.

³⁶ Principally theft and fraud. On the difficulties with the definition of dishonesty in English criminal law, see A. Halpin, Definition in the Criminal Law (Oxford 2004), 150–166 (hereafter Halpin, Definition in the Criminal Law).

³⁷ See, also, J. Gardner, “Wrongs and Faults” in A. P. Simester (ed.), Appraising Strict Liability (Oxford 2005) 51 at 72 (hereafter Gardner, “Wrongs and Faults”). There is not space here to enter the debate over what “principles” and “policies” are, and what role they – and other concepts such as “values” – ought to play in the criminal law. They are used simply as shorthand for the various types of arguments that can affect the decision over what constitutes culpable wrongdoing. See, however, J. Gardner, “Ashworth on Principles” in L. Zedner and J. V. Roberts (eds.), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford 2012), 3.

³⁸ Tadros, “The System of Criminal Law” at 453.

³⁹ Ibid. at 454. Tadros also includes incitement in his list. Common law incitement was abolished, and replaced with the “assisting and encouraging crime” offences, after he was writing: Serious Crime Act 2007, pt. 2.

⁴⁰ Tadros, “The System of Criminal Law”, at 455.

⁴¹ For cynicism about grand theory, see: Duff, R. A., “Theorizing Criminal Law: A 25^th Anniversary Essay” (2005) 25 O.J.L.S. 353Google Scholar; Duff, R. A., Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford 2007), 7–8Google Scholar (hereafter Duff, Answering for Crime).

⁴² E.g. J. Gardner and S. Shute, “The Wrongness of Rape”, reproduced in J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford 2007), 27.

⁴³ Communication plays a large part in many contemporary theories of criminalisation, criminal responsibility, the criminal trial and punishment. For references, see Tadros, V., The Ends of Harm: The Moral Foundations of Criminal Law (Oxford 2011), 88Google Scholar.

⁴⁴ For discussion, see: G. Williams, Criminal Law: The General Part, 2nd ed. (London 1985), 578–588 (hereafter, Williams, The General Part); A. Ashworth, Principles of Criminal Law, 6th ed. (Oxford 2009), 63–66 (hereafter Ashworth, Principles); Simester et al, Criminal Law, pp. 26–31; Simester, A. P. and Chan, W., “Four Functions of Mens Rea” (2011) 70 C.L.J. 381, 388–393Google Scholar (hereafter Simester and Chan, “Four Functions of Mens Rea”).

⁴⁵ On the necessity of law to guide conduct and secure liberty, see: J. Rawls, A Theory of Justice: Revised Edition (Cambridge, MA 1999), 210–212; J. Raz, The Authority of Law: Essays on Law and Morality, 2nd ed. (Oxford 2009), ch. 11 (hereafter Raz, The Authority of Law); J. Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford 2011), 283.

⁴⁶ Raz, The Authority of Law, pp. 214–216; Griew, “Consistency, Communication and Codification” at p. 68.

⁴⁷ Duff, R. A., Punishment, Communication and Community (Oxford 2001), 188–193Google Scholar (hereafter Duff, Punishment, Communication and Community). This develops points first made in Duff, R. A., “Law, Language and Community: Some Preconditions of Criminal Liability” (1998) 18 O.J.L.S. 189, 197–201Google Scholar. See, further, Duff, Answering for Crime, p. 43.

⁴⁸ This point brings up considerations relating to the “fair labelling” of offenders. See: Ashworth, Principles, pp. 78–80; Chalmers, J. and Leverick, F., “Fair Labelling in Criminal Law” (2008) 71 M.L.R. 217CrossRefGoogle Scholar. Fair labelling might be able to play a role in guiding conduct: V. Tadros, “Fair Labelling and Social Solidarity” in L. Zedner and J. V. Roberts (eds.), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford 2012) 67 at p. 72.

⁴⁹ Duff, Punishment, Communication and Community, p. 189.

⁵⁰ See, similarly, McBoyle v US, 283 U.S. 25 (1931), 27 per Holmes J.

⁵¹ It is doubtful that such “everyday” understandings of words exist. A useful introduction is G. Ryle, “Ordinary Language” (1953) 62 Philosophical Review 167.

⁵² [1982] A.C. 341, 351 per Lord Diplock. On the historically chaotic jurisprudence on recklessness in English criminal law, see Halpin, Definition in the Criminal Law, ch. 3.

⁵³ See Norrie, Crime, Reason and History, ch. 3.

⁵⁴ See, similarly, MacCormick, D. N., Rhetoric and the Rule of Law (Oxford 2005), 126–127Google Scholar.

⁵⁵ Duff, Punishment, Communication and Community, pp. 190–191.

⁵⁶ Ibid., pp. 192–193. See, also, J. Gardner, “Rationality and the Rule of Law in Offences against the Person”, reproduced in J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford 2007), 33 at pp. 45–53 (hereafter Gardner, “Rationality and the Rule of Law”).

⁵⁷ And the law ought to define terms within these boundaries, rather than asking juries to do it themselves, if only for accountability reasons. See, further, Briggs, A., “Judges, Juries and the Meaning of Words” (1985) 5 L.S. 314Google Scholar.

⁵⁸ R. v Caldwell [1982] A.C. 341, 357 per Lord Edmund-Davies.

⁵⁹ See, further, Raz, The Authority of Law, pp. 221–222.

⁶⁰ L. Carroll, Through the Looking Glass and What Alice Found There (London 1970 [first edition 1871]), ch. 6.

⁶¹ His most important works in this area are: Robinson, P. H., “Rules of Conduct and Principles of Adjudication” (1990) 57 U. Chicago L. Rev. 729Google Scholar (hereafter Robinson, “Rules of Conduct and Principles of Adjudication”); P. H. Robinson, Structure and Function in Criminal Law (Oxford 1997) (hereafter Robinson, Structure and Function). Robinson credits the rediscovery of the conduct/adjudication distinction to George Fletcher and Meir Dan-Cohen. See: G. P. Fletcher, Rethinking Criminal Law (Boston, MA 1978), 456–459 (hereafter Fletcher, Rethinking Criminal Law); Dan-Cohen, M., “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law” (1983–1984) 97 Harv. L. Rev. 625Google Scholar (hereafter Dan-Cohen, “Decision Rules and Conduct Rules”). On Dan-Cohen, see Singer, R., “On Classicism and Dissonance in the Criminal Law: A Reply to Professor Meir Dan-Cohen” (1986) 77 Journal of Criminal Law and Criminology 69Google Scholar.

⁶² Robinson, P. H., “Structuring Criminal Codes to Fulfill Their Function” (2000) 4 Buffalo Criminal Law Review 1, 7Google Scholar.

⁶³ Robinson, “Rules of Conduct and Principles of Adjudication” at p. 770; Robinson, P. H., “Fair Notice and Fair Adjudication: Two Kinds of Legality” (2005–2006) 154 U. Penn. L. Rev. 335, 378Google Scholar.

⁶⁴ Robinson, “Rules of Conduct and Principles of Adjudication” at p. 769. Peter Alldridge once supported this line of thinking: Alldridge, P., “Rules for Courts and Rules for Citizens” (1990) 10 O.J.L.S. 487, 489, 494–495Google Scholar. His view now appears to be much more nuanced: P. Alldridge, “Making Criminal Law Known” in S. Shute and A. P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part (Oxford 2002) 103 at pp. 113–115.

⁶⁵ Robinson, Structure and Function, p. 237.

⁶⁶ Robinson, “Rules of Conduct and Principles of Adjudication”, at pp. 733–736. See, further: Fletcher, Rethinking Criminal Law, pp. 566–569; Simester and Chan, “Four Functions of Mens Rea” at pp. 385–388.

⁶⁷ See e.g. Robinson, Structure and Function, pp. 133–134, 157–164. Despite noting the importance of mens rea in inchoate offences, Robinson's “Code of Conduct” states simply that “You may not attempt to commit a crime” (p. 218). This is rather unclear with regard to whether mens rea matters – demonstrating that Robinson's codes of conduct and principles of adjudication distinction is drawn far too sharply.

⁶⁸ Simester and Chan, “Four Functions of Mens Rea” at pp. 385–386.

⁶⁹ Theft Act 1968, s. 1.

⁷⁰ See, similarly, Gardner, “Wrongs and Faults” at p. 70.

⁷¹ See, in a similar vein, Dan-Cohen, “Decision Rules and Conduct Rules” at p. 652; R. A. Duff, “Rule-violations and Wrongdoing” S. Shute and A. P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part (Oxford 2002) 47, at pp. 69–70. There are more convincing reasons for excluding defences from offence definitions, but that is beyond the scope of this paper. See, however, Fletcher, Rethinking Criminal Law, p. 457.

⁷² Dan-Cohen, “Decision Rules and Conduct Rules” at p. 662; H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law, 2nd ed. (Oxford 2008), 181–182.

⁷³ See: Williams, The General Part, pp. 589–590; D. Husak, Philosophy of Criminal Law (Totowa, NJ 1987), 69–72; Ashworth, A., “Interpreting Criminal Statutes: A Crisis of Legality?” (1991) 107 L.Q.R. 419, 443–444Google Scholar (hereafter Ashworth, “Interpreting Criminal Statutes”); Ashworth, Principles, p. 63. This principle is accepted both in England and Wales and, to an extent, by the European Court of Human Rights. See: Knuller v D.P.P. [1973] A.C. 435; Murphy, C. C., “The Principle of Legality in Criminal Law under the European Convention on Human Rights” [2010] E.H.R.L.R. 192, 199–201Google Scholar.

⁷⁴ On some accounts, mere negligence as to being on “thin ice” might be sufficient to secure fair warning. See D. Husak, “Strict Liability, Justice and Proportionality” in A.P. Simester (ed.), Appraising Strict Liability (Oxford 2005) 81, at p. 99.

⁷⁵ See Gardner, “Rationality and the Rule of Law”.

⁷⁶ Ashworth, “Interpreting Criminal Statutes” at p. 443.

⁷⁷ A similar criticism has been made of the conduct/adjudication distinction: L. Alexander and K. K. Ferzan with S. J. Morse, Crime and Culpability: A Theory of Criminal Law (Cambridge 2009), 300.

⁷⁸ Raz, The Authority of Law, p. 218; Ashworth, Principles, pp. 65–66.

⁷⁹ Even those who support discretion in the definition of concepts such as mens rea accept that this power must be controlled to avoid damaging respect for the criminal justice system: Robinson, P. H., “Legality and Discretion in the Distribution of Criminal Sanctions” (1988) 25 Harvard Journal on Legislation 393, 398Google Scholar.

⁸⁰ See, similarly, Griew, “Consistency, Communication and Codification”, at p. 68.

⁸¹ For discussion, see Kaveny, “Inferring Intention from Foresight”.

⁸² There is not space here to engage in the debate over whether an intention to cause grievous bodily harm ought, in itself, to be sufficient mens rea for murder. I suspect it ought not to be.

⁸³ Tadros, “The System of Criminal Law” at p. 452.

⁸⁴ E.g. Gardner, J. and Jung, H., “Making Sense of Mens Rea: Antony Duff's Account” (1992) 12 O.J.L.S. 559Google Scholar, 578 (hereafter Gardner and Jung, “Making Sense of Mens Rea”).

⁸⁵ The addition of new fault elements has also been suggested in the context of the US Model Penal Code. See Michaels, A., “Acceptance: The Missing Mental State” (1997–1998) 71 S. Cal. L. Rev. 953Google Scholar.

⁸⁶ See, in a broadly similar vein: Dan-Cohen, “Decision Rules and Conduct Rules” at p. 659 (distinguishing between indeterminacy and inaccessibility); Williams, G., “Criminal Omissions: The Conventional View” (1991) 107 L.Q.R. 86Google Scholar, 94.

⁸⁷ This would necessitate a change in Parliament's infuriating habit of often leaving an offence definition silent on the matter of mens rea.

⁸⁸ [1986] 1 W.L.R. 1025.

⁸⁹ See n. 3 above.

⁹⁰ R. v Cunningham [1982] A.C. 566.

⁹¹ There are other practical constraints on judicial activism. See Ashworth, “Interpreting Criminal Statutes”, at 422; Heydon, J. D., “Limits to the Powers of Ultimate Appellate Courts” (2006) 122 L.Q.R. 399Google Scholar.

⁹² D.P.P. v Morgan [1976] A.C. 182.

⁹³ “Indifference” played a large part in the law of sexual offences during the Caldwell era: see e.g. R. v Kimber [1983] 1 W.L.R. 1118. For a theoretical defence of indifference's place at the heart of recklessness, see R. A. Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Oxford 1991), ch. 7. Duff does not recognise recklessness-as-indifference as an appropriate concept for use in every context, but does not give it a different label from recklessness-as-advertent-risk-taking. His account is thus open to the objection levelled at English law in this article. See, similarly, Gardner and Jung, “Making Sense of Mens Rea”, at 578.

⁹⁴ Sexual Offences Act 2003, s. 1.

⁹⁵ See the above discussion of recklessness in English law.

⁹⁶ [2003] UKHL 50, [2004] 1 A.C. 1034, at [70].

⁹⁷ Simester et al, Criminal Law, pp. 312–314.

⁹⁸ [2006] UKHL 18, [2007] 1 A.C. 18.

⁹⁹ It is difficult not to have sympathy with Horder's view that “[l]ay people are not the wild-eyed retributivists that it suits many liberal-progressive scholars or would-be law reformers to regard them as being”: J. Horder, Homicide and the Politics of Law Reform (Oxford 2012), 42.

¹⁰⁰ For a useful introduction to the problem of overcriminalisation, and potential checks on legislative power in the criminal context, see D. Husak, Overcriminalization: The Limits of the Criminal Law (Oxford 2007).

¹⁰¹ See, however, Chan and Simester, “Four Functions of Mens Rea” at pp. 393–395.

¹⁰² See Halpin, Definition in the Criminal Law, pp. 194–196.

¹⁰³ See Lavery, J., “Codification of the Criminal Law: An Attainable Ideal?” (2010) J. Crim. L. 557Google Scholar.

¹⁰⁴ Law Commissions Act 1965, s. 3(1).

¹⁰⁵ See Dennis, I., “RIP: The Criminal Code (1968–2008)” [2009] Crim. L.R. 1Google Scholar. The previous Chairman of the Law Commission described codification as a “distant memory”: Munby L. J., “Shaping the Law: the Law Commission at the Crossroads”, Denning Lecture (29 November 2011) at 11 (available at http://www.bacfi.org/files/Denning%20Lecture%202011.pdf). The Law Commission now appears to be engaged in a process of “simplification” of the criminal law, which it distinguishes from codification: Annual Report 2011–2012 (Law Com. No. 334, 2012), para. 2.34.

¹⁰⁶ See e.g. the recent decision on the partial-defence of “loss of control” in R. v Clinton, Parker and Evans [2012] EWCA Crim 2, [2012] 3 W.L.R. 515.