Essay A2-1 - Kayleigh Gregory

'Foresight of consequences is not the same as intent.' Discuss.

Introduction

In English Criminal Law the prosecution must prove to the jury, and the jury must be satisfied that the defendant has actually committed the crime of which he is accused. The prosecution must prove ‘beyond all reasonable doubt’ (Woolmington 1935) that the defendant committed the offence in question (the actus reus) and that he had the necessary intention to commit the offence (the mens rea).

Intention
It is the jury’s role to decide if intention exists. There is no clear statutory interpretation of the word ‘intention’ so it is left to the jury to look at the evidence and make a decision based on the facts and their opinion. There are two main types of intent.
        
Direct Intention
This is the easiest intent for the jury to find. This is when the defendant’s intention will be clear from the circumstances, for example, D wants to kill V so takes a knife and stabs V in the heart. It is obvious to the jury in this kind of case that D intended to kill V.

Oblique Intention
This is harder for the jury to find as it is not so clear cut and obvious. This is when the result of an act is different to what was intended. For example, D decides to give V a scare by setting fire to V’s house and as a result V dies of the fire. His direct intention was to scare V but then V’s dies meaning this could be oblique intention.

Lord Goddard CJ said “In many offences a specific intention is a necessary ingredient and the jury would have to be satisfied that a particular act was done with that specific intent.” So it’s the jury’s job to work out whether or not the motive is relevant when finding the intention. He then went on to say “If the circumstances showed that the act was consistent with an innocent intent as with a criminal intent, and if there was any doubt about the matter, the prisoner was entitled to be acquitted.” (Steane 1945)

DPP v Smith (1961) led to important changes and to some extent, some clarity regarding this area of law. In this case, the defendant was ordered to leave his car, which he knew to contain stolen goods. Instead of obeying the instruction, he accelerated off with a police officer clinging to his vehicle who was then flung off the defendant’s car and into the path of an oncoming vehicle and he later died from his injuries. The defendant was found guilty of murder. He appealed, which reached the House of Lords, on the point of law that he didn’t have the necessary intention of murder. The House of Lords upheld the conviction stating that the necessary intention for murder was present ‘if an ordinary responsible man, in similar circumstances would have contemplated the end result’. An objective test had now been created within this area and the Law Commission intervened as it was being very strongly criticised. So on the advice of the Law Commission, Section 8 of the Criminal Justice Act 1967 was enacted.

Section 8 says that the jury are not legally bound to ‘infer that the defendant intended or foresaw a result of his actions just because it was a natural and probable consequence of them’. Instead the decision of whether the defendant’s intention is present or of foresight of consequences should be made based upon the evidence. Therefore, the jury are required to look at it in a subjective way (through the eyes of the defendant) as opposed to an objective way (through the eyes of a reasonable man).

In the case of Hyam v DPP 1975, the defendant became very jealous of another woman who took her male friends affections so she poured petrol through that woman’s letterbox and set it alight in the early hours of the morning resulting in two children inside the house dying in the blaze. Hyam was found guilty but her appeal, which reached the House of Lords, was on the fact that she had no intention to kill the children, just to frighten the woman. The appeal was dismissed on the grounds that ‘intention was established if it was shown that the defendant foresaw the result as highly probable’. So if the defendant saw the result as highly probable when committing the act then the necessary intention can be found.

This is issue arose a year later in two cases; Mohan 1976 and Belfon 1976. In these cases, the judges decided on a different point of view to Smith 1961. The decision was that ‘mere foresight that death or personal injury was highly probable was not the same as having the intention to cause the act in question. Instead it was merely evidence for the jury to look at when deciding whether an intention was present’. Wein J in the case of Belfon said ‘foresight and recklessness are evidence from which intent may be inferred but they cannot be equated either separately, or in conjunction with intent’. So at this stage in case law, foresight of consequences is not the same as intent.

The ‘Moloney Guidelines’

These are a set of guidelines from the judge in the case of Moloney 1985. In this case a step-father and his step-son had been drinking at a family anniversary celebration. They were having a race as to who could load a gun the quickest and allegedly, the father dared the defendant to shoot him saying he didn’t have the guts to pull the trigger but the defendant did and he died as a result. The defendant was found guilty of murder but on appeal, the House of Lords reduced his conviction to manslaughter. These guidelines were given by Lord Bridge in the House of Lords as to how to direct the jury where the intent is not direct. Lord Bridge said the jury should be asked two questions:

‘First was death or really serious injury in a murder case…. a natural consequence of the defendants act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.’
The case of Hancock and Shankland 1986 criticised the guidelines given in Moloney. In this case two striking miners were angry when a fellow striking miner decided to go back to work so they pushed a concrete block off a bridge that the miners’ taxi and police escort were passing under in order to return the miner to work. As a result the taxi driver was killed. At the trial, the Moloney guidelines were given to direct the jury and the two defendants were found guilty of murder. However, on appeal, the convictions were quashed on the basis that the Moloney guidelines were ‘unsafe and misleading’. After this case, the Moloney guidelines were no longer used.

Nedrick 1986 & Woolin 1998

In the case of Nedrick 1986, petrol was poured through a letterbox and set alight killing a child inside the house. These are very similar facts to the case of Hyam and as the Moloney case had not yet reached the House of Lords by this time, the judge followed the decisions made in Hyam. This case is significant within this area of law because on appeal of the conviction of murder, it was accepted that the law had changed in this area (Moloney had gone through the House of Lords) and the conviction was quashed but Lord Lane gave the correct direction to give the jury in future in this situation:

‘if they are satisfied that at the material time the defendant recognised that death or serious injury would be virtually certain, (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result.’

This was the clearest statement and clarification within this area of law up to this point.

Woolin 1998 is the leading case within this area of law at present and has prevailed over the directions made in Nedrick. In this case, the defendant violently shook his three month old baby then threw him four or five feet in the direction of his pram. The defendant later accepted that he knew there was a risk of injury but he didn’t think it was enough to kill the baby. The judge directed the jury as in Nedrick but also said ‘if they were satisfied that when the defendant threw the child he appreciated that there was a substantial risk that he would cause serious harm to it’. This part of the direction of the jury was the defendants grounds of appeal, that the jury had been misdirected but the House of Lords agreed with the Court of Appeal that there had been no misdirection.

After much debate in the House of Lords the final statement on the correct direction of the jury was given; that the jury can only find intention when they are satisfied that death or serious bodily harm was virtually certain (barring some unforeseen intervention) and that the defendant appreciated that fact.

So Woolin 1996 is how the law currently stands today, that foresight of consequences is not the same as intent, it’s a factor for the jury to consider from the evidence of the case when finding intent.

Conclusion

In conclusion, as the current law stands, foresight of consequences is not the same as intention. It is something for the jury to consider when finding intent.

A point I noticed was that in Section 8 of the Criminal Justice Act 1967, the words ‘natural and probable consequence’ were used compared to how it currently stands now with the words ‘virtually certain’ due to case law evolving. This changes the burden of proof needed to find intent and means that case law is not consistent with statute law so the argument is, do judges have the right to change the law according to statutes? In my opinion, yes, judges do have the right as Parliamentary Acts are not ‘in date’ and up to the modern times for long. If we did stick to purely statute law and case law followed very strictly according, this would not allow for the law to be in touch with the modern society with regards to things like changing morals, new technology etc. meaning that there could be a great miscarriage in justice. On the other hand, there is the argument that statute law is by far more supreme and judges do not have the right to alter it in anyway as the act will state what Parliament intended and that is the law of the land.

Another point I noticed was the use of the words ‘infer’ and ‘find’. These words came up a lot throughout this area. I think the current guidelines on finding intent that use the word ‘find’ is correct. The word ‘find’ indicates that the intent is there amongst the evidence and it’s up to the jury to find it, the word ‘infer’ indicates its not really there and that they have to assume intention from the evidence. The jury shouldn’t have the right to assume intention if it doesn’t really exist.

Although it seems inevitable that the case law surrounding intent will change again, I agree with the current position in which the law stands surrounding this area. It is not fair on the defendant to assume intent purely because the defendant should have foreseen the outcome as would the reasonable man. I think a subjective approach is appropriate when finding intention for an offence and that ‘virtually certain’ is a high enough standard of proof. It seems very clear at this present moment in time that in English Criminal Law, the foresight of consequences is not the same as intent and I agree.