Initially, with regards to oblique intention an objective test was applied as in DPP v Smith. The defendant was trying to get a police officer off the bonnet of his car by swerving and the officer was consequently killed by oncoming traffic. The defendant argued he did not intent to kill the victim, the HoL stated that a person intended death or grievous bodily harm (GBH) if a reasonable person would have foreseen that death or GBH would result from the act and he was duly charged with murder. This was considered bad law and s.8 of the Criminal Justice Act 1967 (hereafter the CJA) was passed to change it which provides that the defendant actually foresaw and intended the act, not what he or she should have foreseen or intended. The initial ruling in DPP v Smith was considered bad law arguably because since intention requires the highest degree of fault, it should naturally be solely concerned with the defendant’s perception.
S.8 subsequently conflicted with the majority decision in Hyam v DPP in which the appellant set fire to a house in order to scare but the fire killed someone in the house. She appealed to the HoL on the grounds that knowledge that a certain consequence was a highly probable consequence does not establish intent to produce that result but is only evidence from which a jury may infer intent. The conviction was upheld by a 3:2 decision accepting that foresight of consequences being highly probable was sufficient to establish intent. Lord Hailsham widely criticized dissent objected that knowledge or foresight is merely material which enables a jury to “draw the necessary inference as to intention”.
It was Lord Hailsham’s dissent that was then taken and rectified in R v Maloney where the defendant shot his father by mistake under the influence of alcohol in a competition of who could draw their gun the quickest. The trial judge directed on oblique intent and the jury convicted. The CA dismissed the appeal and the defendant appealed to the HoL where the defendant’s conviction of murder was substituted for manslaughter. It was in this case where Lord Bridge formed the ‘Golden Rule’ providing that judges do not need to give juries detailed guidance on the meaning of intention, rather juries should use the normal meaning of the word.. Lord Bridge also clarified to judges that in most cases they could leave the definition to ‘the jury’s good sense’.
In relation to Hyam, the HoL held that nothing less than intention to kill or cause GBH would constitute malice aforethought and the ruling established that mere foresight of the victim’s death was not intention, just evidence from which intention can be found. Lord Bridge also suggested that juries might be asked to consider two questions: was death or really serious injury a natural consequence of the defendant’s act, and did the defendant foresee that this was a natural consequence of their act. If the answer was ‘yes’ then the jury might infer from this evidence that death was intended. This guidance consequently proved problematic for juries as in Hancock v Shankland. The defendants were striking miners and knew that a taxi passing under the bridge below them was carrying workers who were breaking the strike to work. A concrete block was dropped and the driver was killed. The trial judge directed the jury suggested in Maloney and they were convicted of murder but on appeal the HoL held that this had been incorrect and that a verdict of manslaughter should be imposed. Their Lordships were in accord with Lord Bridge that foresight of consequences was not in itself intention, but they were concerned the question of whether the death was a ‘natural consequence’ might suggest to juries that they need not consider the degree of probability. Lord Scarman suggested that the jury should be directed that ‘the greater the probability of a consequence, the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater probability is that the consequence was also intended’. This ruling was pivotal in that it removed the ambiguous notion of ‘natural consequence’ and created a new scrutiny that considered the degree of probability of a consequence.
This concept was further clarified in R v Nedrick where Lord Lane CJ stated that even if death or GBH is not the defendant’s aim or wish, the jury may infer intention if they decide that death or GBH were virtually certain from the act, and that the defendant foresaw that was the case. The virtual certainty test was later affirmed in R v Woolin with some minor modifications setting the current test of oblique intent. A prominent modification made related to the direction which told the jury that ‘they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty. The HoL substituted the word ‘infer’ for ‘find’ as to ‘infer’ suggested that intention was something different from the foresight itself, but did not specify what it was.
But what about when the accused knows that a result is virtually certain to occur but intended the opposite, e.g. D has Parkinson's disease so it is virtually certain that he will miss, but he does intend to kill. After Woolin the courts could say one intends to hit (desire or purpose) yet at the same time one intends to miss (foresight of a virtual certainty), leaving the jury with a potentially illogical outcome.
Furthermore, the criminal law laid down in past cases does not define intent; it only provides guidelines on how a jury might tell when it is present; so the same facts might equally produce a conviction or acquittal depending on the make-up of the jury. As in Woolin where the jury may find intention if a D saw V's death as a virtual certainty. This suggests there is something further for the jury to decide once they have concluded that D foresaw the result as virtually certain.. This flexibility proved contentious in Matthews and Alleyne where the ground of appeal was, inter alia against a murder conviction in which the judge had directed the jury that foresight of virtual certainty of consequences was intention. The CA held that Woolin did not reach or lay down such a rule of substantive law and that the law had not yet reached a definition of intent in murder ‘in terms of appreciation of a virtual certainty'. Appears that following Woolin, the jury still retains their 'moral elbow room' whereby a person who admits to having seen the result as virtual certain will not necessarily be found to have intended the result, the jury will have the discretion to find that he did, leaving such a serious crime as murder dependant on the jury’s likes and dislikes. The jury being left to infer the requisite intention to kill is said to be contrary to Article 6.2 of the European Convention on Human Rights, which suggests that the guilt of the accused should be proven beyond reasonable doubt.
It would appear then, that a fitting measure for reform would be codification of a revised definition, perhaps a definition whereby no distinction is made between murder and manslaughter altogether, which would disregard the accused’s state of mind and the circumstances. Or perhaps a definition contemplating aim, including foreseeing a consequence as certain, but not foresight as a virtual certainty. In 2006 the Law Commission deliberated such codification of the definition of intention which would have provided us with a system similar to that of America, where the Model Penal Code sets out the definition. The report suggested classifying foresight as part of substantive law, not merely part of the evidence which would reduce the discretional powers of the jury. It was determined however, that any codification should only codify the existing common law and leave discretion to the jury.
As proven above, it is highly conceivable to say that we remain in the curious position where a key criminal law concept lacks a substantive definition and that there is still some measure of uncertainty. These vastly opposing views by acclaimed scholars and practitioners alike, coupled with the above analysis of case law, highlight the sheer magnitude of controversy that has surrounded the actual meaning of the concept 'intention' both in the past few decades and in the present day. Despite pleas for a tighter definition excluding the “permissive words, ‘may be found’” similar to the one drafted in the said Law Commission report It appears that the judiciary are determined to retain the so-called ‘moral-elbow’ room for juries. Regardless of the outcome of future judicial decisions, ‘it is in the interests of clarity and the consistent application of criminal law to define intention’.
D. Ormerod, Criminal Law (Oxford University Press, 2008, 12th Edition) at p97
A. Reed and B. Fitzpatrick, Criminal Law (Sweet & Maxwell, 2009, 4th Edition) at p60
R. Card, Criminal Law (Oxford University Press, 2006, 17th Edition) at p89
[1999] AC 82 House of Lords
C. Elliot and F. Quinn, Criminal Law (Pearson Education, 2008, 7th Edition) at p55
[1976] QB1, [1975] 2 ALL ER 193 at p200
M. Jefferson, Criminal Law (Pearson Education, 2009, 9th Edition) at p91
A. Reed and B. Fitzpatrick, Op. cit. at p61
C. Elliot and F. Quinn, Criminal Law (Pearson Education, 2008, 7th Edition at p55
Antje Pedain, ‘Intention and the terrorist example’ Crim. L.R 2003 at p593
J. Herring, Criminal Law (Palgrave Macmillan, 2009, 6th Edition) at p65
[1986] 1 WLR 1025 Court of Appeal
[1999] AC 82 House of Lords
C. Elliot and F. Quinn, Criminal Law (Pearson Education, 2008, 7th Edition) at p59
C. Elliot and F. Quinn, Ibid at p63
D. Ormerod, Criminal Law (Oxford University Press, 2008, 12th Edition) at p100
M. Jefferson, Criminal Law (Pearson Education, 2009, 9th Edition) at p105
Arfan Khan, ‘Intention in criminal law: time to change?’ Stat. L.R. 2002, 23(3) at p236
C. Elliot and F. Quinn, Criminal Law (Pearson Education, 2008, 7th Edition) at p65
C.M.V. Clarkson, H. Keating and S.R. Cunningham, Criminal Law: Texts and Materials (Thomson, 2007, 6th Edition)
Report no.306 ‘Murder, Manslaughter and Infanticide’ (November 2006) based on the consultation paper: The Law Commission, ‘A New Homicide Act for England and Wales?’ (December 2005)
J. Dine, J. Gobert and W. Wilson, Cases and Materials on Criminal Law (Oxford University Press, 2006, 5th Edition) at 152
A. Reed and B. Fitzpatrick, Criminal Law (Sweet & Maxwell, 2009, 4th Edition) at p66
D. Ormerod, Criminal Law (Oxford University Press, 2008, 12th Edition) at p97
A. Ashworth, Criminal Law (Oxford University Press, 2009, 6th Edition) at p177
M.Jefferson. Op.cit. at p110