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 changed and 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”.

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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 ...

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