Foresight of Consequences is Not the Same as Intent

 By Paul Powlesland

Introduction

In order to find a person guilty of crime, the prosecution must, ìbeyond all reasonable doubtî[1], prove that a person has both the actus reas and the mens rea (except for the few crimes of strict liability) for the crime. For some crimes, only recklessness or negligence need be proved in order to satisfy the mens rea requirement of an offence. However, for serious crimes, such as murder, theft and offences under s18 Offences Against the Person Act (1861), mens rea can only be established if ìthe jury is satisfied that the defendant intended to commit the crimeî[2].

Intention itself can be divided into two categories, direct and oblique intent. Direct intent is relatively straightforward. For instance if you were to pull out a gun and say ìIím going to shoot youî before shooting someone in the chest, it would be reasonably obvious that you intended to kill or cause that person grievous bodily harm. However, oblique intent is more difficult, as it is where a defendant claims that he ìdid not foresee the consequences of his actionî. Despite this, the law has decided that in some circumstances the defendant should have foreseen that his actions would lead to death or serious injury and thus the word ëintentioní has ìÖbeen widened [to in some cases] cover a situation where the defendants avowed purpose was different from the actual consequences of his act.î[3] Thus in some cases, intent can be derived if, from the defendantís actions, the consequence had a high probability in occurring. However, there are many arguments as to what the likelihood of a consequence from a defendants actions occurring must be in order to derive intention; with likelihoodís ranging from ìsubstantial riskî to ìvirtually certainî. Thus there have been many cases that have disagreed as to the advice that has to be given to the jury in order to allow them to decide if the defendant has the necessary intent. The task in this essay, then, is to assess whether, and to what degree, foresight of consequences is the same as intent. In order to do this I will need to look at a series of cases in which the law in this area was developed

The first case that began to develop this area of law was DPP v Smith (1961)[4]. The facts of the case were that Smith had some stolen goods in the back of his car and a policeman ordered him to stop in order to investigate. Instead, Smith drove off, whereupon the policeman jumped onto the bonnet of the car and ordered him to stop. The policeman was thrown off the car, into the path of oncoming vehicles, where he was run over by an oncoming car and killed. Smith was charged with murder, convicted and sentenced to death. The appeal eventually reached the House of Lords, where it was heard by the strongest team that could be gathered to hear a criminal appeal, including Lord Kilmuir, then the Lord Chancellor, Lord Parker of Waddington, the Lord Chief Justice and Lord Denning, who later became the Master of the Rolls. The House of Lords unanimously upheld the conviction, with the Lord Chancellor Summarising thus:

ìIf in doing what he did, he must as a reasonable man have contemplated that serious harm was likely to occur, then he was guilty of murder.î[5]

However, this judgement came under fierce attack from academics, who disliked the use of an objective test for establishing intention in murder cases, which was established by the use of the ìreasonable manî phrase in the judgement. The academics would have instead preferred a subjective test in this area. However, Lord Denning has defended the judgement[6] by pointing out that, although the facts of the case state that he was ìthrown offî the car into another vehicle, Smith actually crashed the policemanís body into the oncoming vehicles three times (with the third being so violent it actually knocked the oncoming carís offside front mudguard off) before he finally fell off and was killed. Lord Denning then goes on to say that:

ìNo doubt Smith had no desire to kill him: and it was not his purpose to kill him. But must he not have been aware that there was a very high probability that the policeman would suffer grievous bodily harm? And if so, was he not guilty of murder? The judge so directed the jury: and the jury so found. And the House of Lords have said the direction was right.î[7]

Though it was much criticised, the judgement from DPP v Smith (1961) meant that the law stated that foresight of consequences could be equated to intent, even if there was only a ëhigh probabilityí of an occurrence, as opposed to the ëvirtual certaintyí that was required in later cases. Thus at the time of Smith, the statement in question in this essay[8] was not true.

However, the criticisms from the academics did not cease, and as the House of Lords Practice Statement had not yet been implemented, it was necessary for the Law Commission to intervene and propose a new law in the form of a statute, in order to sever a direct link between foresight of consequences and intent. Thus s8 Criminal Justice Act (1967) was enacted to take account of the criticisms of the academics. S8 states that:

ìÖthe jury is not bound in law to infer that the defendant intended or foresaw a result of his actions just because it was a natural and probable consequence of them. It should, instead, make the decision about whether he did have such an intention or foresight by looking at all the evidence and drawing the proper conclusions from that.î[9]

In laymanís terms this means that the judge is not supposed to tell the jury what to do. Instead, the jury must look at the matter in a subjective way and decide what the actual defendant intended or foresaw and not look at the matter from an objective viewpoint, as suggested by the ìreasonable manî test in Smith. Thus the law at this point was, that there was no direct relation between foresight of consequences and intent and instead foresight of consequences was something the jury could draw upon to decide if the necessary intention for the act in question was there. Thus the statement in question in this essay[10] was true following s8 Criminal Justice Act (1967). In addition, there were no prescribed instructions that could be given to the jury and instead they had to use their own judgement with regard to whether foresight of consequences could be equated to intent.

When the Criminal Justice Act (1967) was passed, it was widely expected that there would precedent would be new cases that would set the precedent to ëflesh out the bonesí of the act and set prescribed instructions for juries. The first such case was that of Hyam v DPP (1975)[11]. The facts of the case were that Hyam became jealous of another woman who had taken her boyfriend and poured petrol through her letterbox and set fire to it. The resulting blaze killed two children, but Hyam argued that she had only intended to frighten the woman. The case reached the House of Lords, who rejected the appeal, although they varied as to the reasons for this. Two of the judges in the House of Lords ìÖgave the impression that intention was established if it was shown that the defendant foresaw the result as highly probable.î[12] The words of this judgement seemingly contradicted s8 Criminal Justice Act (1967), because they re-established the link between foresight of consequences and intent and thus once again going against the statement in question in this essay. However, Lord Hailsham dissented from this view and instead believed that:

ìMere 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.î[13]

This view, which agrees with the statement in question in this essay, that foresight of consequences is not the same as intent, was used as persuasive precedent by the Court of Appeal in two non-fatal injury cases (Mohan (1975)[14] and Belfon (1976)[15]). This view also prevailed in later cases involving murder and foresight of consequences.

          The next case to occur in this area is arguably one of the most important, as it was the first to establish guidelines to be given to the jury to help them decide on foresight of consequences and intent. The case was that of Moloney (1985) and the facts of the case were that the defendant had been drinking with his stepfather, whom he was on good terms with at the time. However, an argument broke out between them over who could load a shotgun in the fastest time. The stepson won the argument and the stepfather allegedly dared him to pull the trigger, which he did, with the result that the stepfather was killed. Moloney was convicted of murder, but subsequently appealed to the House of Lords, who reduced his conviction to manslaughter. Lord Bridge delivered the main judgement and in it stated that when directing the jury on the mental element required in these types of cases, a judge should:

ìÖavoid any elaboration or paraphrase of what is meant by intent, and leave it to the juryís good sense to decide whether the accused acted with the necessary intent.î[16]

This judgement reconfirmed s8 Criminal Justice Act (1967), by severing the direct link between foresight of consequences and intent and instead leaving it to the jury to decide. However, Lord Bridge went further than this in his judgement and actually established guidelines as to what the judge should direct the jury for similar cases in the future. In the guidelines Lord Bridge said that the jury should decide on two matters, namely:

ìFirst, was death or really serious injury in a murder caseÖ a natural consequence of the defendantís act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.î[17]

These ëMoloney Guidelinesí as they became known, had a large impact on the law with regards to foresight of consequences and itís relationship with intent. Overall the case of Moloney did finally disestablish the direct link between foresight of consequences and intent, precedent that was to be followed in all later cases. However, although the ëMoloney guidelinesí laid down the foundations of directions to be given to the jury, its exact wording was to be challenged in many future cases.

          The first case in which the ëMoloney Guidelines were called into question, was that of R v Hancock and Shankland (1986)[18]. The facts of this case were that Hancock and Shankland were two striking miners who were angry when a colleague decided to go back to work. In order to stop him, they pushed a concrete block off a motorway bridge into the path of the taxi taking him to work, with the result that the taxi driver was killed. At the trial, the judge recited the Moloney guidelines and the pair were convicted of murder. However, the Court of Appeal quashed their convictions and the House of Lords confirmed this. In the judgement of this case, Lord Scarman agreed with the part of the Moloney judgement that said that it was up to the jury whether the intention to kill existed. However, he then went on to say ìIt is only when Lord Bridge turned to the task of formulating guidelines that difficulty arises.î[19] He then elaborated on this further by adding that the Moloney guidelines were ìunsafe and misleadingî. However, although the judgement in Hancock and Shankland established that the ëMoloney Guidelinesí were no longer to be used, there were no new ones put in their place. Despite this, the case did support the judgement in Moloney, insofar as it confirmed that there was no direct link between foresight of consequences and intent.

          The next case to occur was that of Nedrick (1986)[20], which was tried at first instance before Moloney or Hancock and Shankland. The facts of the case were very similar to those in Hyam; with the defendant pouring petrol through a letterbox and setting it alight, resulting in the death of a child. The conviction was quashed and at the same time, Lord Lane gave new instructions to be given to juries to replace the Moloney guidelines, which were thus:

ìWhere the charge is murder and in the rare cases where the simple direction is not enough, 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 (barring some unforeseen intervention) as a result of the defendantís actions and that the defendant appreciated this was the case.î[21]

Although this case seemingly restores the link between foresight of consequences and intent, by the way it sets out the probability of ìvirtually certainî allowing the jury to convict, I believe this is not the case. Instead I believe ìvirtually certainî is a minimum standard, which is shown by the phrase ìthe jury is not entitled to infer the necessary intention unlessî The fact that this judgement did not restore the link between foresight of consequences and intent is further reinforced by Lord Laneís words that ìThe decision is one for the jury to be reached on a consideration of all the evidence.î[22]

          However, although Nedrick helped to clarify the law, it was further complicated by the decision in R v Walker and Hayles[23], an attempted murder case. In this case the conviction was upheld, despite the Recorder at the original trial using the words ìhighly probableî instead of ìvirtually certainî. Although the Court of Appeal went on to say that the words ìvirtually certainî are preferable, this case did much to further confuse the law in this area.

          The final case in this area is perhaps the most important, as the judgement from it contains the current law with regards to foresight of consequences and intent. The case of R v Woollin (1998)[24] concerned a man who ìviolently shookî his three-month-old baby before ìthrowing him across the room against his pramî. Wollin:

ìAdmitted in later interviews that the baby had hit the floor hard but claimed that he ëdid not think it would kill himí, although he accepted there was ëa risk of injuryí.î[25]

Although the trial judge had used the direction set down in R v Nedrick (1986), the next day he told the jurors that they might infer intention:

ìIf 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.î[26]

The defendant appealed on the basis of this misdirection, but the Court of Appeal decided there was no misdirection. However, when the appeal reached the House of Lords they overruled the Court of Appeals decision and reduced Woollinís conviction from murder to manslaughter due to the direction in which the trial judge spoke of ìsubstantial riskî, which might have confused the jury. Although their Lordships mostly approved of the guidelines set down in Nedrick, they changed the word ìinferî in the guidelines to ìfindî, thus making the current guidelines to be given to the jury as follows:

ìÖthe jury may only find intent to do serious injury if they are satisfied (a) that serious bodily harm or death was a virtual certain consequence of Dís voluntary act and (b) that D appreciated that fact.î[27]

Although the use of the word ìfindî rather than ìinferî might seem irrelevant, it has actually made it harder to convict a person if they say ìthey did not foresee the consequencesî of their actions. Although this has been welcomed by many academics, it has also been criticised by some, due to the possibility of it allowing too many defendants to escape conviction.

Thus the case of Woollin has perhaps decided some of the uncertainties in the law. This is because there is still no direct link between foresight of consequences and intent, as the direction to be given to jurors states that they can ìonly find intent ifÖî, rather than ìhave to find intent ifÖî. In addition, the House of Lords have finally given a clear indication on the exact direction to be given to jurors, which should help to end uncertainty in future cases.

Conclusion

In conclusion the law with regards to foresight of consequence and intent has changed and developed much over the last forty years. The first case of DPP v Smith (1961) established a direct link between foresight of consequences and intent, based on a subjective test, even if the event was only ìlikely to occur.î Following criticisms from academics parliament passed s8 Criminal Justice Act (1967) in order to sever the link between foresight of consequences and intent. However, the law once again became clouded in Hyam v DPP (1975) in which it was decided foresight of consequences could be the same as intent if the chances were ìhighly probableî. The following case of R v Moloney (1985) finally disestablished the link between foresight of consequences and instead established foresight of consequences as something the jury could draw on when deciding on intent, an approach that was to be followed in all future cases including the latest one of R v Woollin (1998). However, the judgement in Moloney established directions to be given to the jury known as the ëMoloney Guidelinesí, which were criticised in the later case of R v Hancock and Shankland (1986) although the judges in this case declined to put any new guidelines in their place. The case which really established the current law on foresight of consequences was R v Nedrick (1986). This case established the guidelines in which intent can only be inferred if the consequences were ìvirtually certainî from the defendantís actions. Although the later case of R v Woollin (1998) refined these guidelines (for instance through the use of ìfindî instead of ìinferî), the guidelines laid down in Nedrick constitute for the most the law in this area.

Thus, the current law with regards to foresight of consequences and intent is:

…        There is no direct link between foresight of consequences and intent. Instead foresight of consequences can be used by the jury to ìfindî intent (R v Woollin (1998),

…        Whether the defendant foresaw the consequences must be based on a subjective test (s8 Criminal Justice Act (1967)),

…        And the jury can only find intent if serious bodily harm or death was a virtual certainty of the defendantís actions (R v Nedrick (1986)/ R v Woollin (1998)). 

However, although the law may seem to be clear in this area, there are some academics that believe there are some unresolved issues, such as although the jury are entitled to find intention if the consequence was virtually certain, are they bound to? However, other academics argue that if the jury where bound to find intent if the defendant fulfilled the guidelines, then this area of law would be covered by direct, rather than oblique, intent anyway. These and other questions mean further appeals in this area will be inevitable, as Alan Norrie argues:

ìAnother case with different moral facts, reflecting more manifest malice, could well let the Hyam genie out of the bottle.î[28]

Thus there is certain to be more case law adding to the already complex set of cases that form the law with regard to foresight of consequences and intent. However, at the moment, foresight of consequences is only something that the jury can use to find intention, if the consequences were virtually certain. Thus the statement in question in this essay is correct, as foresight of consequences is not the same as intent.

Paul Powlesland.