Please explain and discuss - using case law etc - the following statement ... "Foresight of consequences is not the same as intent".

Written by Suzie Davis.

In all criminal cases the burden of proof is with the prosecution to prove the guilt of the defendant beyond all reasonable doubt (Woolmington v DPP (1935)). For all crimes, with the exception of strict liability crimes, this means that both the actus reus and mens rea must be present. The mens rea criteria for different offences vary, with requirements including recklessness, dishonesty, gross negligence and intention. For example the mens rea for murder requires either an intention to kill or an intention to cause grievous bodily harm.

Intent

Intention, in the eyes of the law, occurs in two separate forms – direct intent and oblique intent. Direct intent is where the defendant clearly had the intention to cause whatever harm they did, whereas oblique intent refers to the defendant’s foresight, or lack of, as to the consequences of their actions. For the simple reasoning that oblique intent refers to foresight suggests that there is a clear link between intent and foresight of consequences, however what now needs to be established is whether they are the same.

The Criminal Justice Act (1967) was one of the first statutes to refer to the foresight of consequences. Section 8 of the act states that:

‘The 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.’

This would suggest that foresight and intention are two separate issues as the statute suggests they are considered as individual thoughts. It also implies that the jury should be subjective in their view as to the ability to foresee the consequences, whereas intent is clearly present or not.

Case Law

One of the first cases after the passing of this Act was R v Moloney (1985) where the defendant claimed he never intended or conceived that he would kill or injure his stepfather. D had originally been convicted of murder, as after returning home from leave (he was a soldier) he celebrated with his stepfather. Both males consumed a large amount of alcohol and remained awake after the guests had left. Shortly after 4am a single shot was fired and D was heard to shout ‘I’ve shot my father’. In court the circumstances as to how the shooting occurred materialised. It appears that the two men held a contest to see who could load his gun and take aim the fastest. D was indeed quicker and stood aiming at his stepfather, who jokingly taunted D and said that he would never dare use live bullets. D then fired the gun at his stepfather.

In appeal the House of Lords held that nothing less than a direct intention to kill or cause grievous bodily harm was sufficient mens rea for murder. Even though D could have foreseen his stepfather’s death as a possibility this was not intent and thus the conviction of murder was substituted by manslaughter.

Lord Bridge who delivered the main judgement in the above case stated that it should be left to the jury’s common sense to decide whether the accused acted with the necessary intent. He then went on to elaborate explaining the two key matters that a jury should decide.

‘Firstly was death or really serious injury in a murder case a natural consequence of the defendant’s 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’

Therefore, in relation to the above case it would appear that at that time there was no doubt that foresight of consequences and intent were two separate matters and thus not the same at all. Moloney set precedent for all future cases as the appeal went to the House of Lords and thus the only possibilities of change were by the House of Lords or the European Court of Justice overruling the decision in the future; or the House of Lords conceding the decision had been made per icuram.

The next case to reach the House of Lords involving the same question as to foresight of consequences was R v Hancock and Shankland (1986). Both defendants were striking miners who knew that a taxi would pass under the bridge on which they were standing, transporting men who were breaking the strike. The D’s dropped a concrete block, which hit the taxi and subsequently killed the driver. The House of Lords heard the appeal against the conviction of murder.

The Lords believed the original verdict had been incorrect and as in the case of Moloney substituted a verdict of manslaughter. There was a concern relating to the question of whether death was a natural consequence of the D’s act, as this might suggest to juries that they need not consider the degree of probability. If there were only a very small probability of a consequence occurring then this would suggest that there is little evidence of intent. However, Lord Scarman, the main person passing judgement on the case, referred to the Moloney guidelines set by Lord Bridge as ‘unsafe and misleading’. That did mean that although the precedent created by Moloney in terms of allowing the jury to decide whether the intention to kill existed still remained, the guidelines that followed in the same judgement were not now to be considered in future. In removing the Moloney guidelines though Lord Scarman failed to suggest any new ones and thus the matter was left open for any following cases. As a result at this time it was still quite clear that there was to be no link between the foresight of consequences and intent.

The following case was R v Nedrick (1986), where an appeal to the Court of Appeal meant that the original conviction of murder was substituted for manslaughter. In R v Nedrick the defendant had poured paraffin through the letterbox of a woman’s house and set it alight. When later questioned D said he had only intended to frighten the woman, whom he held a grudge against. However, the woman’s child was in the house at the time of the fire and as a result died, thus leading to the original conviction of murder. On appeal, it was stated that the jury should consider how probable the consequence was, and whether the defendant foresaw it. The jury may only then infer intention if they are sure that the defendant realised that the consequence was a virtual certainty.

As a result of the Moloney guidelines being overruled in R v Hancock & Shankland the judge in Nedrick was left with no guidelines to follow. As a result it was up to the Court of Appeal to set new guidelines, which it did so.

‘Where 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 deathor serious bodily harm was a virtual certainty as a result of the defendant’s actions and that the defendant appreciated this was the case.’

These Nedrick guidelines indicate that the foresight of the consequences and intention are not the same. Further, they suggest that if a defendant foresaw a possible consequence, but believed it was highly unlikely. then he should not be found guilty.

The final and most recent case, which currently provides precedent for other future such cases, is R v Woolin (1996). The D aggressively shook his young baby before throwing him across the room against his pram. As a result of D’s actions the baby died. D later admitted that the baby had hit the floor hard, although he didn’t believe this would kill him, but he accepted that there was a risk of injury. The original trial judge directed the jury that they might infer intention if they were satisfied that the defendant appreciated the substantial risk of serious harm by throwing the child. D was convicted of murder, but an appeal was granted on the basis of misdirection as to the degree of foresight required. The Court of Appeal decided that no misdirection had occurred and upheld the conviction.

On further appeal to the House of Lords the conviction was lessened to manslaughter as a result of the original misdirection. The Lords, although mostly approving of the guidelines formed by Nedrick, did feel it was necessary to replace the word ‘infer’ with the word ‘find’. As a result a new and current set of guidelines was formed.

‘The 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 D’s voluntary act and (b) that D appreciated that fact.’

If, in the case of Woolin, the trial judge had indeed directed the jury appropriately I do believe it likely that the original conviction of murder would have been upheld. This does suggest that the guidelines, both new and old, do allow some defendants to lessen their sentence using a loophole in the law. This is especially true with the newest guidelines, which allow a defendant to plead manslaughter as a consequence was not a virtual certainty, but was still quite clearly a possibility that he may have considered. Does this not suggest we are letting guilty criminals have an easy option out of pleading guilty to murder?

Conclusion

In relation to the original question of whether the statement ‘foresight of consequences is not the same as intent’ is indeed correct, it does appear so. Foresight of consequences can be used by the jury to find intent, if the consequences were virtually certain, but it cannot be taken to equal intent. As a result of the above cases the law in this area is somewhat confusing. The guidelines created in Nedrick form most of the law in this area, as they have never been overruled, however refining as a result of Woolin has left them adapted. Woolin sets the binding precedent as, unlike Nedrick, it was decided in the House of Lords and is also the most recent case. Therefore, although there is a high possibility of change in the future, currently foresight of consequences is not the same as intent.

Suzie Davis (A2 Law) Sept 04.