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With particular reference to recent authority and academic critiques, explain and evaluate the meaning of intention in the light of this statement.

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“Numerous offences are defined so as to require proof of ‘intention’ … It might be expected that the meaning of such a fundamental term would have been settled long ago but this is not so. The cases are inconsistent, judicial opinion has recently changedand there is still some measure of uncertainty”.

(Ormerod, D Smith and Hogan’s Criminal Law, 2005, p93)

With particular reference to recent authority and academic critiques, explain and evaluate the meaning of intention in the light of this statement.

One might expect that being of such fundamental importance, the courts would have settled the meaning of intention long ago. However, the issues surrounding intention have been subject to much judicial and academic debate in recent years. The meaning of intention has been debated in a succession of cases, more notably Hyam V DPP, Maloney, Hancock V Shankland, Nedrick, Woolin and more recently in Mathews and Alleyne. This essay will attempt to evaluate and explain the meaning of intention by looking at the above cases.

While there are problems with the meaning of oblique intention, the concept of direct intention seems to be “well-settled”. Direct intention can be described as where the defendant intended to bring about the consequence. Although this aspect of intention is relatively straightforward, oblique intention poses a number of problems. Under this approach it is sufficient that the accused has foreseen the result as one which is highly probable or virtually certain to occur, even if that result is not his purpose.

In the case of Hyam V DPP it was held that a person intended a result if it was a highly probable result of their act, even though it was not their purpose to cause that result. The majority in the House Of Lords (HOL) were of the opinion that this was the correct law, but the actual decision was that foresight of high probability of serious bodily harm was a sufficient mens rea of murder, not that such a state of mind amounted to an intention to cause serious bodily harm. As Padfield suggests it seemed that after this case intention might mean different things in different situations due to the wide definition placed on it by the use of the words ‘highly probable‘. Consequently, subsequent case law attempted to “limit the application of the wide definition” and aimed at overcoming the complications that resulted from Hyam.

In the case of Moloney, Lord Bridge expressed himself to be “firmly of the opinion that foresight of consequences, as an element bearing on the issue of intention….. belongs not to the substantive law, but to the law of evidence”. Thus, it was decided that foresight of probability of a consequence did not amount to intention but may be evidence of it, thus limiting the wide meaning that derived from Hyam.  This decision is somewhat contrasting to the decision in Hyam where it was held that “a man intends the consequences of his voluntary act when he desires it to happen, whether or not he foresees that it probably will happen, and when he foresees that it will happen, whether he desires it or not”. The view that “foresight does not necessarily imply the existence of intention” has been reiterated by the HOL in Hancock and Shankland where Lord Scarman stated that “the probability, however high, of a foreseen consequence is only a factor” in deciding intention. It seems then that this decision is “now prevailing”. In the Law Quarterly Review, Lord Goff concludes that “after the journey through Hyam, Moloney and Hancock, the law is really back where it was ... Foresight of consequences is not the same as intent, but is material from which the jury may, having regard to the circumstances of the case, infer that the defendant really had the relevant intent”.

The case law shows the difficulty in finding a definition of intention that is suitable for all case facts and it seems as though judges are unwilling to define it, however the reasons for this reluctance are unclear. Some suggest that the reasons for their reluctance to provide a definition is because they see a need to preserve an element of flexibility so that they can continue to allow changes to its meaning to accommodate for differences in case facts. If a judge was to supplement the jury with an abstract and generalised definition of intention, it is likely to be “insensitive to the subtle variations in particular cases“. As Lord Scarman noted in Hancock, "there is always the danger that the inevitable generality of guidelines intended to cover a class of case may be inapplicable or misleading in some cases”. That was certainly the experience of the HOL, which was forced in Hancock to disapprove the guidelines laid down by Lord Bridge in Moloney, a mere eleven months after they were first proposed.

After Moloney and Hancock, foresight of virtual certainty did not constitute intention, but only something from which intention might be inferred by the jury. There seems little doubt that it was Lord Lane C.J.'s purpose in Nedrick to go as far as he possibly could towards instituting foresight of virtual certainty as intention, without explicitly flying in the face of the two earlier HOL cases. He sought to achieve his purpose in two steps. Firstly that the jury should be told not to infer intention unless convinced that the accused foresaw the consequence as a virtual certainty and secondly, that where the jury concludes that the accused realised that the consequence was for all practical purposes inevitable the inference of intention may be irresistible. In effect, Lord Lane's first statement makes foresight of virtual certainty necessary in order to infer intention, whilst his second statement makes it sufficient. It appears then that what Lord Lane was trying to achieve in Nedrick was inconsistent with Maloney and Hancock.

Despite amending them slightly, the HOL in Woolin followed the guidelines set out in Nedrick. They decided that the jury should be told that they are not entitled to find the necessary intention unless, they feel sure that the consequence was a virtual certainty and that the defendant knew of this. Virtually certain regards something that is bound to occur, exception to an unexpected event. The use of the narrow approach afforded by the words virtually certain seems to be a more favourable approach than that adopted in Hyam, which states that the consequence must be a ‘highly probable’ result for there to be intention because there is a difficulty in ascertaining what in fact is highly probable. The use of such words offers a wider approach and therefore has a larger scope for conviction and can consequently convict people unjustly. It appears then that one of the major problems for the courts, regarding the law of intention is determining the degree of foresight that could be equated with intention.

Although some people, including Alan Norie, see Woolin as providing a degree of clarity to the meaning of intention, there are factors which lead to further uncertainty as a result of the direction. These include the changing of the word ‘infer’ from the Nedrick direction to the word ‘find’. The fact that the HOL did not give an explanation for this change of terminology adds to the confusion. Herring proposes two explanations for the change. Firstly, the HOL may simply have thought the word find was easier for juries to understand than infer. This suggests that the Lords did not intend to change the meaning of the direction, just to use more everyday language. Alternatively, they 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 adds to the confusion surrounding intention. It should also be noted that there is a difference between foresight and intention and the blurring of both terms may also add to confusion. The HOL 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 ass demonstrated by Hancock and Shankland.

The are also problems with the use of the words ‘virtual certainty’ in determining intention, as Arfan Khan points out. Khan describes a moral difficulty in the suggestion that an individual has the intention to kill merely because he foresaw death as a virtual certainty. For example, a parent who throws their child from the roof of a burning building knows and appreciates that a virtual certain consequence of such an act is the death of the child, however it can not be said or inferred that the parent intended to kill the child. Khan argues that “the law should provide for such circumstances specifically rather than placing reliance upon the discretion of the prosecution not to prosecute”. Thus, it seems that the notion that what is foreseen as virtually certain, or appreciated as virtually certain, is something that is intended can at times be somewhat unfair. Kahn feels a statutory definition of intention is necessary to account for such circumstances. The need for legal certainty stressed by the European Convention on Human Rights adds to the case in favour of a statutory definition of intention. Kahn argues that it would simplify the law on intention since a jury would be under no obligation to find that the accused had intention, provided they were satisfied that the conduct of the defendant fell within the statutory provision. A statutory definition is also favoured by a number legal academics including Pedain who argues that a uniform definition would serve to simplify the law and stop any further confusion.

In contrast to Kahn’s argument, some legal commentators see the decision in Woollin as finally clearing up the uncertainties surrounding oblique intention. Norrie states that,

“the judgement seems to bring the law finally into line with the weight of intellectual opinion represented……At last the House of Lords has stated in what seem clear terms that Nedrick…. 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 suggest that Woollin has resulted in a clarification and strengthening of the law on oblique intention, supporting a series of cases and disassociating itself with another. However, Norie concedes that there is still a problem and it leads to some confusion as to what the law is. The case of Hyam was not overruled by the HOLwhich seems somewhat confusing as the case was materially similar to Nedrick which resulted in a different result and as stated earlier Hyam focussed upon a probability based foresight principle while the Nedrick test focussed upon virtual certainty. There seems to be two branching aspects of the law and it is unclear which one is prevalent. It appears that Woollin represents the law on the matter of oblique intention, however at the same time Hyam can not be dismissed as it has not been overruled by the HOL and may therefore still apply in cases materially similar to Hyam, thus further adding to the confusion as to the meaning of intention. Alan Norrie hits the target accurately in the following statement, illustrating the ‘coyness’ of members of the judiciary and its negative impact upon the law of intention, “The judges have…. been unnecessarily, and dangerously, coy about declaring that their brethren or predecessors have got it wrong. It is… clear that coyness breeds a lack of clarity in the law“. It appears then that the Lords failure to expressly overrule previous decisions such as that in Hyam has served to further complicate the law on intention

In the case of Maloney Lord Bridge stated that the inference of intent should be left to the “good sense” of the jury and the that the judge should refrain from any “elaborate paraphrase” of the meaning of intention. The case of Hancock agrees with Maloney that juries should use their “common sense” on the facts of each case to define intention. This is also so under Woolin where the HOL stated that “the decision is one for the jury to be reached upon a consideration of all the evidence”. Some legal commentators feel that allowing the jury to decide on intention is one of the main reasons for the uncertainty and confusion surrounding the law of intention. They argue that if judges do not give a definition of intent then juries may reach different decisions on the same facts. Consequently judicial opinion has recently changed on this issue with the case of Mathews and Alleyne. Here it was decided that oblique intent was a matter of law and not facts and was too complicated for juries to understand and so should be left for the judge to decide upon. It follows then that the meaning of intention is still undecided and it will take subsequent cases in the HOL to see whether the decision in Mathews or the decision in Woolin is followed.

In conclusion it appears that the case law on intention is inconsistent and that with the recent decision in Mathews it is going to require further case law to clear the issues up. A proposed move into the direction of a uniform concept of intention as proposed by academic legal writers such as Pedain would be 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 the probability based doctrine of Hyam and the virtual certainty based test of Woollin, and also significantly reduce the confusion which has proved so prevalent in the current law. It appears that the HOL are reluctant to produce a uniform definition of intention and the reasons for this are unknown. It is argued that they see a need to preserve an element of flexibility so to allow intention to accommodate for differing case facts. Hence, the need for a statutory definition of oblique intent to clarify the issues.

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