- Is foresight of virtually certain situations equivalent to intention?
OR
- Is foresight of a virtual certainty of harm occurring an alternative form of malice aforethought?
In a trial, an affirmative answer to either question would be sufficient to uphold the conviction. But the difference between the two is of crucial importance when applied to offences which can only be committed intentionally. If the House were only laying down a rule for murder, then it has no relevance to other offences such as attempted crime or GBH. But if they were defining intention for the whole of the criminal law as including awareness of high probability, then this was extremely significant.
Lord Hailsham explicitly rejected the argument that foresight was equivalent to intent. However he did accept the argument that if the accused were morally certain of a particular result, then that was the same as intending that result. The other judges accepted the proposition that foresight of death or serious harm was sufficient malice aforethought for murder. Whether this was on the basis that it was equivalent to intent was unclear.
There were a series of Court of Appeal decisions during these talks; one such case was of Mohan (1976.) The accused was ordered to stop his car by a policeman. He accelerated and drove at the PC who had to jump aside to escape injury. He was charged with attempted ABH. Any attempt to commit a crime is a charge which requires specificity of intent and the judge directed the jury that if the accused drove at the PC knowing that it was likely that injury would be caused, then they should convict. I.e. it was not necessary to prove intent. When he appealed, the court held that evidence of likely consequences was evidence from which intent could be inferred but it was not, in the law of attempt, to be equated with intent. Criminal attempt required specific intent. “Purposively seeking to bring about the desired result.”
Such cases produce an anomaly in the sense that while specific intent is required for GBH, it is not required for the more serious offence of murder. More seriously, it shows a deep split in the approaches taken towards the interpretation of 'intent' by the two courts.
In their decision in Moloney (Step son Kills step father with Shotgun) the House of Lords accepted that the impact of Hyam was indeed to equate foresight of high probability with intent. They also made it clear that this was not acceptable - the Crown had to prove intention to kill or to cause GBH. The problem then was the relevance of evidence, which showed that the accused foresaw the risk but still carried on. In both cases, it was accepted that such evidence was evidence from which the jury could infer intent but it was not equivalent to intent.
In many murder trials, where there is no direct evidence that the defendant’s purpose was to kill or inflict serious bodily harm, Judges often use the virtual certainty test from Nedrick 1986. In which they direct the jury that they may only infer intent to do serious injury if they are satisfied that:
- Serious harm was a virtually certain consequence of the defendants voluntary act AND
- That the defendant agrees that fact.
“If the accused did not foresee the consequence, he cannot have intended it if he did foresee it but thought the risk of death was only slight, the jury can easily infer that he did not intend it if he saw that death would be virtually certain, then that is a fact from which the jury might find it easy to infer that he intended the death.” – Lord Lane
Lord Lane is basically suggesting that, where a simple direction on intent is insufficient, the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty of the accused's acts and that the accused appreciated that this was the case.
Ultimately the court of appeals final decision concerning this case seemed to be that the foresight of an almost certain consequence was not the same as Intention.
Words – 1028
Pages – 3
Bibliography:
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Criminal Law Forum -
- Criminal Law – Jacqueline Martin
- Asif Tufal – Law Teacher.Net
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Law Students forum -
- Steve Uglow Professor at University of Kent (Forums and guides online)
Further questions
- How have you answered the essay question?
I have been researching this subject area for about a week and a half, and used many forums and books to come to the conclusion that foresight of a consequence is not the same as intention as stated by the court of appeal
- How have you structured your answer?
I firstly gave the definitions of what I am trying to explore, I then gave a brief introduction and then stated facts one after another to come to the final conclusion, which answers the question.
- How has your reading and research influenced your essay?
Well it has been a great influence on my essay as, when I first started this question; I hadn’t the faintest idea on how to answer it and after I had researched the subject area using books, online forums and friends, I slowly began to understand what the whole concept is about, although I am still not very sure about the area.
- How have you analysed the Issues?
I analysed the issues by going through each case involved thoroughly and highlighting all the facts which need to be brought to attention then bringing all the facts together and placing them in the correct areas of my essay.