In the case of R v Hancock and Shankland [1986] the House of Lords disapproved the guidelines it had set down in R v Moloney [1985] only 11 months earlier. In this case H and S pushed a block of concrete onto a road to stop a taxi taking a minor to work; consequently the taxi driver was killed. The House of Lords quashed the murder convictions and stated that the judge should explain to the jury that “the greater the probability of the consequence the more likely it was that the consequence was forseen, and that if it was forseen the more likely it was that it was intended”. This changed the law from what had been set down in Moloney to the jury being able to infer intention from the level of foresight, which allowed a much broader interpretation of oblique intent.
Both Moloney and Hancock formed the basis of the decision in R v Nedrick [1986], in which N had poured paraffin through a letter box and set it alight, killing a child. N claimed that he had not intended for anyone to die. His murder conviction was substituted for manslaughter on the grounds that the Judge had misdirected the jury on the intent necessary to establish a charge of murder, due to the way in which he had equated foresight with murder. This set forth the Nedrick test, which stated that “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 (baring some unforeseen intervention) as a result of the actions of the accused and that he appreciated that was the case”. Buxton stated that “Nedrick has laid the practical problems to rest”, and he was agreed with by other academics who also welcomed the Nedrick test.
Not everyone, however, agreed with Buxton’s claim. The crown argued that Nedrick prevents the jury from considering all the evidence relevant to intention within the case, and that this is contrary to the requirements of section 8 of the Act of 1967 which stated that a court or jury must decide whether there was intention “by reference to all the evidence”. This was countered, however, by Lord Lane C.J. who stated that “Nedrick does not prevent a jury from considering all the evidence”. He argued that the Nedrick test only explains to the court the state of mind necessary to satisfy murder. A sturdy argument for the Nedrick test came from Lord Steyn who stated that “over a period of 12 years since Nedrick, the test of foresight of virtual certainty has apparently caused no practical difficulties”. This idea is reinforced in ‘Intention Thus Far’, “since Moloney and the Court of Appeal's decision in Nedrick, intention has attracted less attention, and its meaning has been largely undisturbed by the judiciary”. This is perhaps because the Nedrick test was sufficient.
The issue of virtual certainty laid down in Nedrick was addressed in the case of R v Woollin [1998]. Woollin had killed his three-month-old son by throwing him onto a hard surface. W claimed that he had not intended to cause the child serious harm. During the trial the Judge directed the jury that they “could infer such an intention if they were satisfied that, in throwing his son, W appreciated that there was a substantial risk of causing injury”. The use of the phrase “substantial risk” caused quite a predicament. W claimed that by using “substantial risk” rather than “virtual certainty” the Judge had “enlarged the mental element of murder to an unacceptable extent”. Woollin’s appeal was allowed and his murder conviction substituted for manslaughter on the grounds that the Nedrick test had not been applied correctly. The Court of Appeal stated that “in departing from the Nedrick direction and using the phrase “a substantial risk”, the Judge had blurred the distinction between intention and recklessness and thus between murder and manslaughter”. This reinforced the use of the Nedrick test when inferring intention, and appeared to end a long running debate over oblique intention for murder.
Norrie, however, was not convinced. He claimed that “Woollin is not as clear in its own terms as has been suggested”, and also that “Woollin may not be the last word in this area”; and in 2003 it appeared he was right. Yet again the issue of intention was under scrutiny in the case of R v Matthews and Alleyne [2003]. In this case M and A, (and two others) had thrown a man off a bridge after robbing him, and were both convicted of murder. They appealed, contending that the Judges directions to the jury on intent was put as a substantive rule, due to the fact that the Judge had told the jury that if they thought it was virtually certain then it was intent. M and A claimed that the Judge should have used the rule of evidence and told the jury that if they thought it was virtually certain then they could find it to be intention, but they did not have to. This appeal was dismissed and the court stated that “the law had not yet reached a definition of intent in murder in terms of virtual certainty” and that “Woollin was not regarded as yet reaching or laying down a substantive rule of law”. Thus recent authority did comply with the Nedrick direction, yet it admits that there is no complete definition of intent regarding murder.
The meaning of intention is further complicated by the additional meanings that have been added to it, such as ulterior intent. This is when a crime involves another intention beyond the criminal act itself, such as ‘burglary with intent’, in which after entering the building as a trespasser there is an intent of either theft, causing grievous bodily harm, rape or causing criminal damage. Like oblique, there has also been confusion over the meaning of ulterior intent. In the case of R v Dakou [2002] the defendant was convicted of causing grievous bodily harm with intent. D appealed against his conviction contending that the trial Judge had failed to adequately direct the jury in relation to ulterior intent. He claimed this was because the Judge used “unnecessarily long and convoluted sentences” and had referred to both recklessness and malice which were both irrelevant. The appeal was allowed quashing the conviction. This demonstrates that even in fairly recent case law there has been uncertainty over ulterior intent, similarly to the uncertainty that still clouds oblique intent.
Specific intent and basic intent, whilst both coming under the same general term of intention, have very different definitions. Specific intent is when only intention will suffice for a crime, whereas basic intent means that recklessness or negligence will suffice to establish the mens rea of a crime. These are both ‘intention’ yet are almost opposites which completely broadens the scope of intent and may cause confusion.
Overall, as Ormerod claims, it does appear that the meaning of intention is still unsettled. The various types of intent that come under the general term of “intention” mean quite different things. Some types of intent, especially oblique, still have much ambiguity surrounding them. The case law has begun to accumulate some consistency by applying the Nedrick direction, but not enough consistency to settle the long running saga or to prevent academic writers from critiquing the laws and judgements made surrounding the area.
Bibliography
D. Ormerod, Smith and Hogan Criminal Law, 11th edition, (Oxford University Press, 2005).
M. Allen, Textbook on Criminal Law, 8th edition, (Oxford University Press, 2005).
M. Jefferson, Criminal Law, 7th edition, (Pearson Higher Education, 2005).
N. Padfield, Criminal Law, 5th edition, (Oxford University Press, 2006).
J. Martin, Criminal Law, 2nd edition, (Oxford University Press, 2004).
A. Ashworth, Principals of Criminal Law, 2nd edition (Oxford University Press, 1995), p. 172.
Journals/Articles
I. Kugler, ‘The Definition of Oblique Intention’, (2004), JoCL 68 (79)
Williams, ‘Oblique Intention’, [1987], Cambridge Law Journal 431
Buxton, ‘The Mental Element in the Crime of Murder’, [1988], L.Q.R 30 p.44
G. Williams, ‘The Mens Rea for Murder’, [1989] 105 L.Q.R
A.P. Simester, and W. Chan, ‘Intention Thus Far’, [1997] Crim LR 704
A. Norrie, ‘After Woollin’, [1999] Crim LR 532
R v Moloney [1985] A.C. 905
Law Commission, A Criminal Code for England and Wales, Clause 18 of Report No. 177 (London 1989)
Itzhak Kugler, ‘The Definition of Oblique Intention’, (2004), JoCL 68 (79)
DPP v Smith [1961] A.C. 290
R v Moloney [1985] A.C. 905
Williams, ‘Oblique Intention’, [1987], Cambridge Law Journal 431
R v Hancock and Shankland [1986]A.C. 455
R v Moloney [1985] A.C. 905
R v Nedrick [1986] 1 W.L.R. 1025
Buxton, ‘The Mental Element in the Crime of Murder’, [1988], L.Q.R 30 p.44
Williams, G. ‘The Mens Rea for Murder’, [1989] 105 L.Q.R 387 and Ashworth, ‘Principals of Criminal Law, 2nd ed. (1995) p. 172
Simester, A.P. and Chan, W. ‘Intention Thus Far’, [1997] Crim LR 704
R v Woollin [1998] 3 WLR 382
Norrie, A. ‘After Woollin’, [1999] Crim LR 532
R v Matthews and Alleyne [2003] EWCA Crim 192
R v Dakou [2002] EWCA Crim 3156