"Instead of clarifying the law on foresight and intention, the judgement in Woollin has lead to further confusion" Discuss with reference to the relevant case law and underlying principles

This direction proposed two distinct and important aspects in the definition of oblique intention, namely the requirement of death or serious harm as a ‘virtual certainty’ of the defendant’s acts and the acknowledgement of the defendant that this was in fact the case.

The House of Lords in Woollin approved this direction with very slight amendments, agreeing to the requirement of a virtual certainty test. Parliament has made it clear that mere foresight of death being likely was not sufficient to amount to intent, section 8 of the Criminal Justice Act of 1967 states that a jury,

‘a) Should not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

b) Shall decide whether he did intend or foresee that result by reference to all the           evidence, drawing such inferences from the evidence as appear proper in the circumstances’

 The House also distanced itself from the earlier case of Hyam in which a formulation of foresight of a probable, or highly probable, consequence as the mens rea for murder was proposed. It is submitted that this is where some of the confusion begins to emerge in the law of foresight and intention.

Some legal commentators welcomed the direction in Nedrick and continue to applaud the decision in Woollin as finally creating a clear ‘firm line’ between intention and recklessness, as Alan Norrie commentates on Woollin,

‘ The judgement seems to bring the law finally into line with the weight of intellectual opinion represented by the orthodox subjectivist tradition associated with Glanville Williams, Smith, and Professor Andrew Ashworth… At last the House of Lords has stated in what seem clear terms that Nedrick, suitably qualified, is right, and that the line of authority that goes back to Moloney is to be preferred over any formulations that smack of Hyam.’

This extract seems to disagree with the view proposed in the title question and submits that in fact Woollin has resulted in a clarification, and final strengthening of the law in the area of intention, supporting a certain trail of cases and outwardly disassociating itself with another. However there is a problem here and it leads to some confusion as to quite what the law is, and it is actually far from clear. The case of Hyam was not overruled by the House of Lords; this seems a little confusing as the case was materially similar to the case of Nedrick which yielded a different result and as stated earlier Hyam focussed upon a probability based foresight principle while the Nedrick test focussed upon the two aspects of virtual certainty and realisation. There seems to be two branching aspects of the law here and it is unclear which one is prevalent. It is obvious that Woollin represents the law on the matter of indirect intention, however at the same time one cannot dismiss Hyam as it has not been overruled by their Lordships’ House and may apply in cases materially different from that of Woollin and those similar to Hyam. It is respectfully submitted that Alan Norrie hits the target accurately in the following statement, illustrating the ‘coyness’ of members of the judiciary and its negative and foggy impact upon the status of the law.

‘Of the previous law, Smith suggests that the House’s view in Woollin departs from a previous reluctance to recognise that Hyam could not stand with the later cases. The judges have heretofore been ‘unnecessarily, and dangerously, coy about declaring that their brethren or predecessors have got it wrong’.There are good reasons why this should be the case: if Hyam is materially the same as Nedrick, then Mrs Hyam should not have been convicted of murder…Perhaps that is why Lord Steyn still falls short of overruling Hyam despite his express criticism of it.It is however clear that coyness breeds a lack of clarity in the law, and Smith is surely right to suggest that such a lack of clarity has existed in the law of intention and murder for over the last quarter of a century.’

As illustrated by the extract, this ‘coyness’ of the judiciary has led to confusion of the law of intention. A close analysis of the Woollin decision begs the question, has there actually been a clarification of the law of intention or has there been an inherent failure to address the problems produced by Hyam and its conflicting nature to the Woollin branch of cases? As we have discussed, the House of Lords did officially distance itself from the decision, however it is submitted that, by not directly overruling the decision, there have lingered ‘Substantive effects of that case on subsequent law’ and the ruling has failed to address this problem.

We now turn to the moral perspective of the argument. The moral aspect plays a crucial part in the analysis of the criminal law and is important to the aspect of the law on intention.  As the law in this field is dominantly concentrated upon murder and serious harm, the role of a moral perspective is unmistakable and lies at the heart of the problems associated with this aspect of the law. Woollin leaves crucial issues regarding the moral basis for judging someone a murderer unanswered.The foresight of virtual certainty can be perceived as both, over and under inclusive, these issues of ‘good and bad motive’ have been produced from the problematic and complex moral foundation of mens rea itself, which a dominant subjectivist approach ignores at its peril.

A helpful illustration of the moral viewpoint is to look at the case of Steane, which is not a murder case, this case was referred to with approval in Moloney and is a case where direct intention alone may satisfy mens rea of an offence, a jury is entitled to find that foresight of a virtual certainty does not equate with intent. Such cases lie within the ‘moral threshold’ of the law and it is irrelevant if the defendant foresaw a result as virtually certain, if the result is in opposition to his moral belief of his actions it is inconceivable that the said result was in fact intended. This moral point was better achieved by a narrowing of the law of intention and in acknowledging the moral perspective between direct and indirect intent. An important aspect is that the jury are ‘entitled’ to find intention, this highlights the point that it is up to the discretion of the jury to find intention , even if the requirements of the virtual certainty test as procured and developed by Woollin are satisfied. To the extent that it has been recently decided that it was a misdirection for a judge to tell a jury that if a result was foreseen as virtually certain that they ‘must’ find intention, so ultimately the discretion is left to the jury, this is a reassuring aspect of the law, as the jury is the most suitable to yield a moral decision in such cases. Lord Goddard explains,

‘ If on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted.’

Another academic view on the moral perspective has been delivered in a different way,

‘The reason why we allow Woollin to distance himself from the foreseeable consequences of his actions is that he did not endorse injury or death even as a possibility. We allow him to deny endorsement, which we may not be prepared to do in any case of merely possible as opposed to virtually certain consequences.’

Taken at face value, this assertion seems to drift away from the decided view that foresight of virtual certainty does result in the finding of intention, however as explored, the finding of oblique intention is a matter of entitlement to the jury and the moral aspects of a case can lead to the acknowledgement that not every case of a virtual certainty always leads to intent.

 This analysis has shown that underlying moral principles have arisen and this has highlighted the counter productiveness of the cognitive language of the law. This ‘moral threshold’ is a positive aspect of the law, however unfortunately it has not added to its clarity but shows that the criminal law is constantly in a process of moral judgement.

Part of the problem the law faces in addressing moral judgements is the use of subjectivist and cognitivist language which inherently is ill equipped to deal with real moral distinctions, this adds to the inherent confusion of the law as expressed in the title question, this point is echoed by the statement of Norrie,

‘ What everyman might achieve by considering first the nature of Woollin’s relationship with his child, or Moloney’s with his father as the irreducible moral context of judgement, the judges must achieve, ventriloqually, as it were, through the law of indirect intention. A narrow account of that law makes Woollin and Maloney man slaughterers, a broad account makes them murderers, but neither actually captures the moral essence of the judgement that lies behind, but is mediated through, the law. The narrow approach reflects but does not embody, the conclusion that everyman might come to in these cases.’

It is submitted that this archaic use of restrictive language encompasses the law of indirect intention and gives an account of why there are two branches of law in murder and their seemingly conflicting results. This hints that Woollin is inherently not going to be the end of this long and arduous route to a clear definition of foresight and intention in the criminal law, it is respectfully put forward that if in the future there is a case which follows more to the facts of Hyam than that of Woollin, then a further contradictive and confusing development will occur and highlight the apparent inadequacies of the Woollin direction and equally the Hyam direction.

This is a disturbing realisation and shows the statement projected in the title question that the law of foresight and intention is inherently more complex and mystifying as a result of Woollin, as a correct viewpoint.

This leads to the support of a view that there should be a single and coherent structure to the criminal law in regard to the law on intention as stated by academic writers including Pedain among others,

‘Something is fundamentally amiss with the concept of intention in English criminal law…the criminal law should recognise only one uniform concept of intention.’

The author also acknowledges that the current law is unclear and leads to much confusion,

‘To misunderstand the ‘foresight-of-certainty’ type of intention as a second independent concept of intention unrelated to the primary one is no harmless mistake. It is what lies at the heart of the confusion arising out of Woollin.’

There is more than one reason for the seemingly contradictory and confusing nature of the law in regard to intention, however it is submitted that the dominant reason, as discussed above is the cognitive and subjectivist nature of the law at present, resulting in a two stemmed system of a probability based doctrine following Hyam and the presently more favoured virtual certainty test as consolidated by Woollin. Other factors which aid in the uncertainty of the Woollin direction include the changing of the word ‘infer’ by Lord Steyn in Woollin from the Nedrick direction to the word ‘find’. The fact that his Lordship did not give an explanation to the change of terminology adds to confusion. Herring proposes two explanations, firstly, his Lordship may simply have thought the word find was easier for juries to understand than infer. This view suggests that Lord Steyn did not intend to change the meaning of the direction, just to use more everyday language. Alternatively, he may have meant to propose that foresight of a virtual certainty is not just evidence from which one could infer intention, but actually is intention in a legal sense. This ambiguity aids the prevalent confusion. It should also be noted that there is a difference between foresight and intention, the blurring of both terms may also add to confusion.  The House of Lords in several recent cases has emphasised that foresight of a consequence is not the same as intention; however it is evidence from which a jury may find intention. As demonstrated by Lord Scarman in Hancock and Shankland,

‘The greater the probability of a consequence the more likely it is that the consequence was foreseen and…if that consequence was foreseen the greater the probability is that the consequence was also intended… the probability, however high, of a consequence is only a factor.’

Another aspect of uncertainty to be considered briefly is whether the Woollin test is merely to be used in murder cases, or whether it can also be applied to cases of intention that do not involve murder. It is clear that Lord Steyn confines his speech to the subject of murder, this means that it is up to the court to deem whether intention is restricted to its core meaning or whether the Woollin direction also apples.

It is respectfully submitted that through the analysis of the law on oblique intention discussed above the argument proposed in the title question that Woollin has created more confusion to the law is justified. The criminal law is clearly undergoing a process of constant moral judgement and it is apparent that this unclear and complex aspect of the law has been so for a considerable amount of time. Even though the majority opinion is that Woollin was correctly decided on the facts it is also inherently clear that the string of cases that flow in line with Woollin have not tackled the problem presented by Hyam and that this ‘coyness’ is inherently confusing and has a detrimental effect upon the law in general.

A proposed move into the direction of a uniform concept of intention as proposed by academic legal writers such as Pedain is a positive direction to focus the development of the law on intention, this would eradicate the seemingly contradictory aspects of the two distinctly different decisions in Hyam and Woollin, and also significantly reduce the confusion which has proved so prevalent in the current law. A shift away from the strict cognitive and subjectivist nature of the current moral judgement will also aid in the formulation of a coherent and clear legal position in relation to the law on foresight and intention.

Bibliography

Books

Allen, M, Textbook on Criminal Law, Oxford, Oxford University Press, 7th Edition, 2003 

Herring, J, Criminal law, text cases and materials, Oxford, Oxford University Press,

2004

Smith and Hogan, Criminal Law Cases and Materials, London, Butterworths, 7th Edition. 1999

Articles

Birch, D, ‘The Foresight Saga: The Biggest Mistake of All’, Criminal Law Review, 1988, 4-18

Norrie, A, ‘After Woollin’, Criminal Law Review, 1999, 532-544

Pedain, A, ‘Intention and the Terrorist Example’, Criminal Law Review, 2003, 579-593

Smith, J, ‘A Note on Intention’, Criminal Law Review, 1990, 85-91

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