"The law relating to the mens rea of murder in England and Wales has now become settled through a series of judicial decisions, which together, have made it unnecessary for Parliament to legislate on the matter" - Critically consider.

However the objective test was considered bad law and section 8 of the Criminal Justice Act 1967 was passed to change it. This provides that a person is not to be regarded as having intended or foreseen the natural and probable consequences of an act simply because they were natural and probable, although this may be evidence from which the jury may infer that it was intended.

There are 4 different forms of mens rea: direct intent, oblique intent, specific intent and basic intent but in this essay I am only concerned with the former two, rather than the latter two. Direct intent applies where the accused wants the result that occurs, and sets out to achieve it. Oblique intent is less straightforward. It applies where the accused did not desire a particular result but his or her actions achieved it, and they realized at some stage that this could have occurred.

In Moloney (1985) the defendant shot and killed his stepfather in a drunken challenge to see who was quicker on the draw. The HL decided that foresight of consequences was only evidence of intention and also gave guidelines, which referred to the natural consequence of the defendants act, but omitted to mention probability.

Many people get confused between intention, motive and foresight. This is because they slightly overlap. Motive is the reason why a person acts, but intention is the defendant's mental awareness at the time of the act.

Moloney established that a person could have intention where they did not want the result but merely foresaw it, yet the courts are not saying that foresight is intention. Foresight is merely evidence from which intention can be found. Before Moloney in the case of Hyam v DPP (1975) it had looked as though foresight was actually intention, though the judgement in that case was not very clear. The court held that the defendant must have foreseen death or GBH were highly likely to result from his or her actions, and this was sufficient mens rea for murder.

However, in Moloney the HL claimed that Hyam had been wrongly decided, and that nothing less than intention to kill or cause GBH would constitute malice aforethought; merely foreseeing the victims death as probable was not intent, though it could be evidence of it.

The guidance for juries proved to be problematic in R v Hancock and Shankland (1986), the trial judge recited the Moloney guidelines to the jury and the defendants were convicted of murder. The CA quashed the conviction and this was confirmed by the HL. Lord Scarman agreed with the CA saying the Moloney guidelines were deficient, and stated they were "unsafe and misleading" and the jurors should decide whether intention to kill existed, based on all the evidence from the case.

In Nedrick (1986), a case similar to Hyam, the jury convicted the defendant of murder. It was decided before Moloney reached the HL and before the modifications in Hancock were made. The judge had therefore directed the jury to follow the decision made in Hyam. The appeal against the conviction for murder was accepted because of this misdirection occasioned by the changes in the law. Lord Lane stated that "where the charge is murder and in rare cases where the simple direction is enough, the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or SBH was a virtual certainty (barring some unforeseen intervention) as a result of the defendants actions and that the defendant appreciated that this was the case."

The virtually certain test in Nedrick became the key test for oblique intention. Then confusion was thrown into this area of the law by the CA judgement in Woollin (1996) when the trial judge confused the jury by his comments concerning a "substantial risk" thus giving a wider direction. It was impossible to know which of the two statements the jury had followed, this must therefore be considered a material misdirection that could not be cured by the inclusion of the earlier correct statement of the law.

The main problem with intention is that there is no definition of the word "intention" , it only gives guidelines on how a jury might tell when it is present. As Smith and Hogan point out, this effectively means that juries will end up calling awareness of the probable consequences "intention" if they think the circumstances of the case demand a conviction, and find the same degree of foresight does not amount to intention where they feel an acquittal is appropriate.

Smith and Hogan also argue that the requirement that the consequences should be virtually certain is illogical, since the person who wrongly thinks that death is likely to result is as morally guilty as the one who is correct in his assumption.

There has been a lengthy campaign to reduce the forms of malice aforethought to one, the intention to kill, on the grounds that the term murder should be reserved for the most blameworthy type of behaviour. A HL select committee recommended replacing intent to cause GBH/SBH with intent to cause serious personal harm, being aware that death may result from that harm. This is contained in the Draft Criminal Code. "Being aware" would imply subjective knowledge; it would not be sufficient that a reasonable person would have known if the accused did not.

Clause 18 (b) of the Criminal Code Bill (1989) defines intention by stating that "a person acts . . . (b) intentionally with respect to . . . (ii) a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events."

In the commentary on the draft code the Law Commission states: A definition of intention for criminal law purposes must refer. . . to "the means as well the end and the inseparable consequences of the end as well as the means" . . . A persons awareness of any degree of probability (short of virtual certainty) that a particular result will follow from his acts ought not, we believe, to be classed as intention to cause that result.