"Det var inte meningen" - en granskning av skillnaden mellan medveten oaktsamhet och likgiltighetsuppsåt

Sammanfattning: In the Swedish criminal justice system, guilt is a necessary and fundamental precondition for criminal liability to be claimed. Guilt constitutes the outer frame for which actions are reprehensible and which actions are excusable. As a main principle, some form of intent is required to ascertain the existence of guilt, although some crimes can be committed through negligence or recklessness. An example of such a crime is causing another’s death by negligence. Today, the lower limit of intent towards recklessness is constituted by the controversial intentional indifference. This form of intent was created by the Swedish Supreme Court through a long series of rulings launching in 2002, after a decades-long debate regarding the lower limit of intent and how it should be designed. In NJA 2004 s. 176, the Swedish Supreme Court presented a very well-formulated and pedagogically designed description of how the intent assessment should be carried out and presented a two-step model where the determination of a personal recklessness constitutes the first step in the assessment. The second step is to assess whether an indifference also exists in relation to the realization of the risk. The Swedish Supreme Court has since NJA 2004 s. 176 continued to clarify the intentional indifference. As a basis for assessing whether there is intent to indifference, circumstances such as upset mood, ruthless behavior and the perpetrator’s interest in the criminal act can be used as markers. The perpetrator’s age, personal maturity and ability to perceive a probable consequence in relation to his or her actions should also be considered. Customary rules shall be applied in cases where the perpetrator has been under the influence of self-inflicted intoxication. The perpetrator’s perception, in the meaning thinks or assumes, at the time for the criminal act regarding the effect of the act must be given decisive importance in the assessment. However, the intention assessment regarding intentional indifference has proven to be practically difficult to apply, despite well-developed established practice. Distinguishing between indifference to a risk and indifference to the realization of a risk seems to be difficult for the lower courts in some cases. The burden of proof is beyond reasonable doubt and to prove a person’s subjective attitude to a certain circumstance at a certain time with such strong certainty has also been proven to be difficult. This essay aims to investigate the legal position regarding intentional indifference, survey its development and to a certain extent audit its enforcement.