Foresight of consequences is not the same as intent - Explain and discuss

Written by Kristina Evans (Sept 05)

Introduction

In English criminal law, before a person can be convicted of a wrong against the state, the prosecution must satisfy the jury that he has committed the wrong of which he is accused. The prosecution must prove beyond all reasonable doubt (Woolmington vDPP 1935) that the defendant committed the offence (this is known as the actus Reus) and that the defendant intended to commit the offence (this is known as the mens rea.)

Intention

There is no statutory definition of the word ‘intention’. It is for the jury to decide whether or not this state of mind exists. They must examine all evidence and then reach an opinion. There are two types of intention and these are direct intention and oblique intention. Direct intention is where the defendant set out deliberately to achieve the result that actually occurred. For example, Bill wants to kill Bob and so gets a knife and plunges it into Bob’s heart. Oblique intention is where the defendant intended to do something but the outcome is different. For example, Bill wants to scare Bob and so sets fire to his house. The direct intent is to scare but if Bob dies than there could be oblique intention.

Lord Goddard CJ said “in many offences a specific intention is a necessary ingredient and the jury have to be satisfied that a particular act was done with that specific intent.” The jury would have to discover whether or not the motive was relevant to intent. Lord Goddard 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.” (R v Steane 1945) 

In the case of DPP v Smith 1961 the defendant had been ordered to leave his car which contained stolen goods. Instead of doing this he drove off with the police officer clinging on to his vehicle. The policeman was thrown off into the path of an oncoming vehicle and later died from his injuries. Smith was convicted of murder but whilst on appeal he claimed that he had not intended to kill the policeman and so had not committed murder. The House of Lords upheld the conviction deciding that the defendant had the necessary intention for murder if an ordinary responsible man in similar circumstances would have contemplated the end result. This objective approach to intention was severely criticised which led parliament to pass the Criminal Justice Act of 1967.

Section 8 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.”

Therefore others must not tell the jury what it must do in such a situation. Instead, the jury should look at all evidence and decide what the defendant intended or foresaw, not look at the matter from the viewpoint of a reasonable person.

In the case of Hyam v DPP 1975 the defendant became extremely jealous when another woman took her place in the affections of her man friend. In the early hours of the morning she poured petrol through the woman’s letter box and set fire to it. As a result two children died. Hyam argued that she only intended to frighten the woman, not to kill the children. Her case reached the House of Lords which rejected her appeal. Two of the judges at the appeal gave the impression that intention was established if it was shown that the defendant foresaw the result as highly probable.

Lord Halisham said, “I do not consider that the fact that a high state of affairs is correctly foreseen as a highly probable consequence of what is done is the same thing as the fact that the state of affairs is intended.”

In the two nonfatal injury cases of Mohan 1976 and Belfon 1976 the Judges decided that mere foresight that death or personal injury was 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 intention was present. In Belfon, Wein J stated that “foresight and recklessness are evidence from which intent may be inferred but they cannot be equated either separately, or in conjunction with intent.”

The 'Moloney guidelines'.

 In the case of Moloney 1985 the meaning of the word ‘intention’ resurfaced. The defendant and his step father had been drinking late at night at a ruby wedding anniversary celebration. A disagreement broke out over who could load a shot gun in the fastest time.  The stepson won this argument and then claimed that his step father dared him to pull the trigger. He did so and the step father was killed. He claimed that he had no intention to kill his step father and had not given any thought to the consequences of pulling the trigger. The House of Lords reduced his conviction from murder to manslaughter and the ‘Moloney guidelines’ were created. Lord Bridge said the jury should be asked to decide on two matters. Firstly, 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 that if they answer yes to both questions it is a proper influence for them to draw that he intended the consequences.

The ‘Moloney guidelines’ were criticised in the case of Hancock and Shankland 1986. The case concerned two striking miners who were bitterly angry when another miner went back to work. They pushed a heavy concrete block and post from a bridge onto the motorway in front of the taxi and police escort taking the minor to work. The taxi driver was killed. The trial judge recited the ‘Moloney guidelines’ to the jury and the defendants were convicted of murder. The Court of Appeal quashed the conviction arguing that the ‘Moloney guidelines’ were deficient. The House of Lords confirmed the decision made by the Court of Appeal to reduce the two men’s convictions from murder to manslaughter. Lord Scarmen stated the ‘Moloney guidelines’ were unsafe and misleading although he offered no alternative.

Nedrick and Woolin.

The case of Nedrick 1986 gave the House of Lords the opportunity to clarify the apparent confusion in law regarding the foresight of consequences and its relation to intent. This case had very similar facts to Hyam. The defendant poured petrol through a letter box and set it alight and the death of an innocent child resulted. The jury convicted Nedrick of murder. The initial trial took place before the House of Lords judgements in Maloney and Shankland and Hancock. Nedrick had his murder conviction quashed and substituted with a conviction for manslaughter and the ‘Nedrick direction’ was written as follows: “where the charge is murder and 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 as a result of the defendants actions, and that the defendant appreciated that such was the case.” These guidelines set out the degree of probability of a foreseeable consequence as having to be “virtually certain”, and that the defendant must have realised this before the jury can consider foresight as evidence of intent.

In the case of Woolin 1999 the defendant was alleged to have violently shaken his three month old baby and then thrown him across the room in the direction of his pram four or five feet away. Woolin admitted in later interviews that the baby had hit the floor hard but he claimed that he ‘did not think it would kill him’ although he accepted that there would be a risk of injury. During the case the judge had given ‘Nedrick directions’ to the jury, but he also at one phrase ‘substantial risk’ (instead of virtual certainty.) As a result of this and the impossibility of determining which direction the jury would have followed, the conviction for murder was quashed and substituted by a conviction for manslaughter.

Therefore, the state of law regarding foresight of consequences and its relation to intent, following Woolin 1999 was as follows: if the Jury are convinced that the defendant foresaw death or serious injury as a virtual certain consequence of his actions then they are entitled to find the intent that fulfils the mens rea requirements of a crime. The use of the phrase ‘entitled to find’ means that the jury do not have to do so.

In Scalley 1995 a case with very similar facts to Nedrick occurred. The jury convicted the defendant of murder but this was quashed by the Court of Appeal because the jury should have been directed that they could, but did not have to convict the defendant of murder if they believed he had the necessary foresight.

In the case of Matthews and Alleyne 2003 the defendants had been convicted for murder after throwing a man off a bridge. The defendants knew that he could not swim but still claimed that they had not intended to kill him. The judge directed that if drowning was a virtual certainty and the defendants appreciated that then they must have had intention of killing him.

In conclusion.

The decision that was made in Woolin has made the law more certain in some respects. The line between intention and recklessness has now been firmly drawn. The fact that death or serious injury might have been ‘highly probable’ or a ‘substantial risk’ is no longer sufficient in cases of murder. The jury are now given very clear instructions as to what they can and cannot do in a case of murder, for example, they cannot find a person guilty of murder unless they are sure that death or serious bodily harm was virtually certain and the defendant appreciated this fact.

There is still some debate as to whether the foresight of a consequence as being virtually certain, actually amounts to intention. In the case of Nedrick, the Court of Appeals final direction appeared to be that foresight of a consequence as being virtually certain was not the same as intention. The Jury were entitled to infer intention if death or serious bodily harm was a virtual certainty. It can therefore be seen that they were not compelled to do so.

As many problems are caused by trying to give additional guidance to the Jury, it could be argued that it would be better to leave the matter completely to them, after drawing their attention to Section 8 of the Criminal Justice Act 1967. It may also be effective to put pressure on Parliament to find a statutory definition of intention. This would take pressure off the Jury so that they could do their job quicker and easier.  

It seems to be very clear that there is no direct link in English Criminal law between foresight of consequences and intent and that intent is found from evidence from foresight of consequences (Woolin 1999). Intent can only be found if the consequences were a ‘virtual certainty’ of the defendants actions and the defendant realised this (Nedrick 1986 and Woolin 1999.) therefore I feel that foresight of consequences is not the same as intent.

Kristina Evans (Oct 2005).

References

Diana Roe (2005) “Criminal law” 3rd edition  Hodder & Stoughton

Allen J.M (2004) “Elliot & Wood’s Cases and Materials on criminal law”  8th ed. Sweet & Maxwell

Cases

DPP v Smith (1961)

Hyam v DPP (1975

R v Matthews and Alleyne (2003)

R v Moloney (1985)

R v Scalley (1995)

R v Belfon (1976)

R v Hancock and Shankland (1986)

R v Mohan (1975)

R v Nedrick (1986)

R v Steane (1945)

R v Woolin (1998)

Woolmington v DPP (1935)