Criminal Law - Defining Intention

          Intention is purely subjective. The test of what the defendant foresaw and intended is always subjective, based on how the jury believes or not whether the defendant might have actually foresaw or intended. In DPP v Smith, the defendant who had been involved in a robbery claimed he did not want to kill the police, he just wanted to escape, and therefore he could not be convicted of murder. The House of Lords upheld the conviction of murder, saying that if an ‘ordinary man’ would have ‘contemplated’ the end result then the necessary intention was proved. This objective test was considered as bad law, and therefore led Parliament to pass the Criminal Justice Act of 1967. Under section 8 of the Act, it stated that the jury 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. This is clearly a subjective test to establishing proof of intent, the focus being on what the defendant actually foresaw and intended, rather than on what he (as a ordinary man) should have foreseen.

          According to Glanville Williams, intention cannot be satisfactorily defined. Intention has no statutory definition, it is found in judicial decisions. Thus, it has caused problems for the courts to consider whether intention should be taken into account by determining the foresight of virtual certainty or the foresight of high probability. In DPP v Hyam, House of Lords held that a person intends a result which he foresees as a highly probable result and this was sufficient mens rea for murder. The test was criticized for being too close to recklessness. The decision was felt to blur the distinction between intention and recklessness. The concepts of the two terms are distinct thus the definition of intention should not overlap with the definition of the recklessness. We need to know there is clear distinction between wanting a result to occur and merely foreseeing it as high probable. Thus, I think the defendant should not be convicted of murder since foreseeing it as high probable result is not an intention to kill. The mens rea in this case is recklessness. Also, in Belfon, the view of Wien J stated that foresight was not part of intention. As Lord Hailsham pointed that foresight and foreseeability are not the same thing as intention.

           In Moloney, Lord Bridge suggested the golden rule which stated ‘the judge should avoid any elaboration or paraphrase of what is meant by intent…unless the judge is convinced  that…the case has been presented to the jury in evidence and argument…further explanation is strictly necessary…’. In this case, the defendant was convicted of malice aforethought. On appeal, the defendant claimed that he had no intention to kill his stepfather and had not given any thought to the consequences of pulling the trigger. The House of Lords held that Hyam had been wrongly decided and reduced the conviction from murder to manslaughter, as Lord Bridge stated that the accused acted with a ‘high degree of recklessness’ and the “Moloney guidelines” were created. Lord Bridge asked the juries to consider that if the defendant foresaw the consequence as natural consequence of his act, then they may infer that he intended it. Lord Bridge believed that the suggestion of ‘natural consequence’ conveyed the concept of virtual certainty, but the guidelines were still unclear. What he seemed to have meant is that a result will occur ‘unless something unexpected supervened to prevent it.’ I think it is uncertain that ‘natural consequence’ should be relevant to the defendant’s mens rea. The problem in Moloney is the defendant did not foresee the risk of death or grievious bodily harm at all, as he said that he never conceived that what he was doing might cause injury to anybody. Therefore, anything said about foresight of natural consequence was not binding. In this case, the juries have to find out how were the circumstances when the incident happened. The question was what was in the defendant’s mind when he pulled the trigger. If he knew that the gun was pointing at the stepfather’s head, the defendant intended to kill. On the other hand, if the defendant was in drunken condition and lacked intention, he never knew where he was pointing at, then he should have been convicted manslaughter and hence the mens rea is recklessness. I agree with the second presumption which also the jury thought it might be true.

          In Hancock and Shankland, the Court of Appeal held that the Moloney guidelines were misleading and quashed the conviction. In contrast with the ‘natural consequence’ guidelines, Lord Scarman pointed out that it should be explained to the jury that the greater the probability of consequence, the more likely it is that the consequence was foreseen and that if the consequence was foreseen, the more likely it is that it was intended. Clearly, they require a reference to probability. Lord Scarman distinguished the mens rea of intention from the evidence needed to prove it. He stated that if the likelihood that death or serious injury will result is high, the probability of that result may be seen as overwhelmingly evidence of the existence of the intent to kill. A ten million to one chance that death would occur, might still mean that death was natural consequence, but the degree of likelihood suggests little evidence of intent. If the former (natural consequence concept) was believed, the crime was murder; if the latter (the degree of probability) was believed, the crime was manslaughter. Again, intention cannot be defined. Thus, I think the juries have to find intention based on the prosecution and defendant cases with considering all evidence along and the prosecution must have to prove beyond reasonable doubt. However, Lord Scarman’s suggestion provides a certain distinction between intention and recklessness.

          In Nedrick, the jury was given direction which equated foresight with intention, and the defendant was convicted of murder. Lord Lane C.J stated that equating foresight with intention was incorrect, and the Lord Bridge speaking in Moloney had been correct in saying that foresight of consequence was part of evidential law, but not substantive law. Nedrick had his murder conviction quashed and substitution with manslaughter. In Nedrick directions, the Court of Appeal held that the juries were entitled to infer the intention only they were sure that the defendant foresaw the consequence was virtual certainty. Indeed, Lord Lane thought that ‘the infer may be irresistible’ in those circumstances. In other words, Lord Lane considered that even if death or grievous bodily harm is not the defendant’s aim or purpose, the jury may infer intention if they were sure that the result is virtually certain of defendant’s act and he actually foresaw it. Foresight, even of virtual certainty was still merely an evidence. As a result, there is no definition of intention. However, Nedrick virtual certainty test became the key test on oblique intention today.

          In Walker and Hayles, the trial judge directed the jury that they could infer intention if there was a ‘high degree of probability’. Again, intention and recklessness contrasted. The trial judge was criticized because he confused foresight of death with intention to kill.  The phrase ‘high degree of probability’ had blurred the meanings between intention and recklessness.  The trial judge should have directed the jury in the Nedrick terms of virtual certainty. Therefore, the reference to foresight of ‘high degree of probability’ was misdirection.

          In Woollin, the trial judge was criticized for direction the jury on intention using the phrase ‘substantial risk’. The appellant realized that there was a substantial risk that he would cause serious injury to his son, and then the jury was directed to find that he intended to cause injury to the child. The judge’s reference to ‘substantial risk’ is wrong; it is very close to the meaning of recklessness. Lord Steyn stated that the trial judge had blurred the distinction between intention and recklessness, and hence the accused was guilty of manslaughter, not of murder. The Nedrick test was correct that the prosecution had to prove foresight of virtual certainty. In other words, reference to ‘high probability’ is incorrect and ‘substantial risk’ should be remarked as recklessness. Therefore, the defendant was convicted of manslaughter. After Woollin, the Nedrick virtual certainty test was confirmed.

         Today, the Nedrick/Woollin test has provided valuable assistance to trial judges. Oblique intent has today been defined in terms of virtual certainty. But in recent years, there are still a number of uncertainties about its interpretation remain in the Nedrick/Woollin test. In some rare cases, foresight of virtual certainty doesn’t mean the accused wanted the consequence to occur. It is possible to foresee a result as virtually certain but not intend it. For example, A may foresee B’s death is a virtual certainty, but A did not intend to kill B as A was threatened and forced by a third party to kill B. In Re A (Children), concerning the legality of an operation to separate Siamese twins, the Appeal Court considered whether direction on intention should be given to a jury. Ward LJ and Brooke LJ acknowledged that, by following the decision in Woollin, the surgeons intended to kill the twin because they knew that her death would be a virtual certainty of their acts, however little they desired that end. So, the surgeons were convicted of murder. In my opinion, I think that the judgment is wrong. Technically in England, the act of euthanasia can give rise to liability for murder if the doctor was found to have intention to cause death. Nevertheless, an act which causes death will not be treated as a crime if the action is good in itself. I think the surgeons are not guilty of murder because they intended the good effect where there is sufficient reason to permit the bad effect. In other words, they intended to save one of the twins otherwise both of them would probably die. So, the surgeons had good motives by doing their actions. Thus, Woollin test remains uncertainty whether the jury should find intention from person who acted with good motive. Again, intention cannot be satisfactorily defined.

       In a recent case, R v Matthews and Alleyne, the principle of ‘foresight is not intention but evidence’ was confirmed. In this case, the trial judge told the jury that ‘if drowning was a virtual certainty and defendants appreciated that… they must have had the intention of killing him’. On appeal, the defendants said that the judge had equated foresight and intention which was contrasted with Nedrick/Woollin test. According to the test, the judge should have directed the jury to find necessary intent in murder proved if they were satisfied that the defendant foresaw a virtual certainty of death or serious bodily harm. It also suggested that foresight of virtual certainty is merely an evidence of intention. As a result, the appeal was dismissed because the court held that on the particular facts of the case, if the jury were sure that the defendants had appreciated the virtual certainty of victim’s death when they threw him into river, it was ‘impossible’ to see how they could not drawn the inference that the defendants intended it. In other words, the jury found impossible to acquit the defendants from murder conviction because the facts had clearly shown that the defendants had killed the victim with knowledge (once he told them he could not swim); therefore, the unlawful killing with knowledge can be considered as intention, the mens rea for murder. In my opinion, the appellants had misunderstood the interpretation of Nedrick/Woollin test; although foresight is evidence of intention, the jury may find intention if there is existing foresight of virtual certainty and, it doesn’t mean foresight equated intention. Otherwise, the term ‘evidence of intention’ means that the jury may infer intention or they may not. The courts are also keen to allow some ‘moral elbow room’ within which the jury can work. The current guidelines are very flexible that the juries are not forced to convict of murder but do have the freedom to do so if appropriate.

          As we all know, recklessness in not intention. From the discussions above, clearly there are distinction between intention and recklessness, and hence intention cannot overlap with the meaning of recklessness. Thus, what is the meaning of recklessness? For many years the law on recklessness was confusing because there were two definitions of recklessness - Cunningham recklessness and Caldwell recklessness. However, the House of Lords abolished Caldwell recklessness as it contrasted with negligence. Now, there is only one kind of recklessness – Cunningham recklessness. Generally, recklessness means taking an unjustified risk. In Cunningham, Byrne J explained that recklessness meant that ‘the accused has foreseen that the particular kind of harm might done and yet has gone on to take the risk of it’. In my words, recklessness can be explained as the defendant is merely being extremely careless but he has no intention to commit a crime, however in being recklessness he may end up in causing damage.

         As conclusion, the moral definition of intent has largely been laid down in murder case. Since murder is a particularly serious crime, it must be defined exactly; in other words, what a jury does is to consider the accused’s moral sense, not depend on their likes or dislikes. However, there is difficulty which requires the jury to look into men’s minds. The defendant may deny his intention to commit a crime and intended to cheat the administration of justice. With that, the jury could find difficulty to find willful blindness. Otherwise, can the jury correctly estimate evidence of states of mind? It can never be a sufficient ground to estimate that.  This is a problematic area because the juries do not have intention metres to ‘plug into people’s brains.’ Moreover, in 2006, the Law Commission published a report suggesting the reform of murder to incorporate First Degree and Second Degree Murder. The report also recommended that Woollin should incorporated into a statute. However, there have so far been no moves to implement this either. Thus, today, the definition of intention remains uncertain.

(3,346 words)

Bibliography______________________________________________________________

Books

J Michael, Criminal Law (8th edn, Pearson Longman, 2007)

Elliot and Quinn, Criminal Law (6th edn, Pearson Longman, 2006)

Smith & Hogan, Criminal Law (8th edn, Butterworths, 1996)

Herring J, Criminal Law (5th edn, Oxford University Press, 2012)

Martin & Storey, Criminal Law ( 3rd edn, Hodder Education, 2010)

Card R, Criminal Law (13th edn, Butterworths, 1995)

Garner, Bryan A, Blacks Law Dictionary (8th edn, Thomas West, 2005)

Clarkson & Keating, Criminal Law (7th edn, Sweet & Maxwell, 2010)

Articles

Williams G, ‘Oblique Intent’ (1987) 46 Cambridge Law Journal 417 at 424-5

Horder J, ‘Intention in criminal law: a rejoinder’ (1995) 58 MLR 678

Official Published Sources

Law Commission; Murder, Manslaughter and Infanticide (Law Commission Consultation Paper No.304 HC30, London 2006)

Electronic Sources

‘Cases for Criminal Law – Mens Rea’, , accessed 22 March 2013.

Burgess V, ‘Foresight of consequences is not the same as intent’,   , accessed 29 March 2013.

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