Charlotte Langridge (October 2007)
Introduction
Under current English criminal law, there are two main elements that have to be proven before a defendant can be found guilty of committing a criminal offence. Firstly, the prosecution, also known as the Crown Prosecution service must convince the jury that the defendant has committed the actus reus or ‘guilty act’. Guilt cannot be proved with this one element alone, it must be used with the mens rea or ‘guilty mind’. We must also bare in mind one exception to this rule which is offences of a strict liability nature, where no mens rea needs to be proved. Both these elements (the actus reus and mens rea) must be proven to exist ‘beyond all reasonable doubt’. This was established in the case of Woolmington v DPP (1935). In this case, the House of Lords concluded that both the above elements were vitally essential for a successful and fair conviction to be made.
However, this is not as simple as it appears. There can be several problems that can arise in relation to the mens rea, in that the defendant must be committed with:
‘The relevant mens rea, e.g. (the degree of worthiness required by the offence in question’)
Throughout this essay I shall consider the statement ‘foresight of consequences is not the same as intent’ and use relevant cases in support of my argument.
Intention
There is currently no statutory definition of the word ‘intent’ in English criminal law as it still has not been defined by Parliament. Perhaps this has been done deliberately as it is solely the responsibility of the twelve members of a jury in a trial to try and establish whether it exists. It must be made clear that the jury are not alone in making this decision. The judge in a criminal trial will guide jury members using past common law case law that has already set a precedent in a particular area and this will come of great benefit to the judge as he will use the correct wording to advise the jury correctly.
Intention can be divided into two main types. These two types of intent are known as direct intent and oblique intent.
Direct intention
Direct intention concerns the defendant who aims to commit a crime and wants the result that will occur as the consequence. For example, if a defendant shoots the victim in the head, he wants to kill him, the victim dies as a result – this is direct intent.
Oblique intention
Oblique intention concerns the defendant committing a crime with intent, but as a consequence there was a further outcome. For example, a defendant wants to scare the victim and set his house alight to do so. Here, the direct intent is to scare, but if the victim dies as a result of the house fire than there could be oblique intention.
Intent has tried to be defined in general terms, for example the Draft Criminal Code define intent as follows: ‘a person acts intentionally with respect to a result when he acts either in order to bring it about or being aware that it will occur in ‘the ordinary course of events’ result in a particular way. A further explanation was provided by Lord Goddard CJ who says: “in many offences a specific intention is a necessary ingredient and the jury must be satisfied that a particular act was done with that specific intent. This effectively communicates that the jury has to discover whether or not the motive was relevant to the intent. Lord Goddard goes 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. This was also confirmed in the case of R v Steane 1945 and clearly transmits the message that if the defendant did not intend to commit a particular act they must be acquitted.
This is further explained in the case of Cunliffe v Goodman 1950 where Asquith LJ said: “an intention to my mind connotes a state of affairs which the party ‘intending’ does more than contemplate; it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition”.
A further case with further relevance is the case of DPP V Smith 1961. In this particular case, the problem of how to define intent and therefore prosecute arose. The facts of the case are as follows: the defendant had been ordered to leave his car which contained stolen goods. However, instead of doing this he drove off with a police officer clinging to his vehicle. The policeman was thrown off into the path of an oncoming vehicle and later died from his injuries. Smith was later convicted of murder but whilst on appeal he claimed that he had not intended to kill the policeman, thus, he 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. The objective approach to intention in this case was heavily criticised and even led Parliament to pass the Criminal Justice Act of 1967. This was essentially the starting point for the argument in relation to foresight of consequences. In section 8 of the Act it stated:
“A court or jury, in determining whether a person has committed an offence:
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of it being a natural and probable consequence of those actions; but
(b) Shall decide whether he did intend or foresee that result by referring to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.”
In simple terms, others must not tell or persuade the jury what it must do in each separate situation. Rather, the jury should consider all the evidence and decide what the defendant intended or foresaw, and not see it from the viewpoint of an ordinary responsible man.
Furthermore, in the case of Hyam v DPP 1975 , the defendant developed a jealous attitude towards another woman who took her place in the affections of her male 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 of this fire two children died. Hyam then argued that she only intended to frighten the woman, not to kill the two children. Her case eventually reached the House of Lords which subsequently rejected her appeal. Two of the judges who were present at the appeal seem to give the impression that intention was established if it was shown that the defendant foresaw the result as ‘highly probable’. Lord Halisham did not agree with this view and said, “I do not consider 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”.
So strong was Lord Halisham’s view that it was used by the Court of Appeal in the cases of Mohan 1975 and Belfon 1976. Both of these cases were nonfatal. The judges in these two cases came to the conclusion that mere foresight that something was highly probable to happen was not the same as intending it to happen; it was just to be used as evidence to look at. Furthermore, in Belfon 1976, 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 1985 and Hancock and Shankland 1986
The debate of what exactly defines intent was brought up again in the case of Moloney 1985. In this case the defendant had been drinking with his stepfather when they began to play a game. The game involved racing, and the defendant and his stepfather were racing to see who could load their shot gun in the fastest time. When the defendant loaded his gun quicker than his stepfather he was dared to pull the trigger. He did so and the stepfather died as a result. Moloney was later convicted of murder, but he appealed and his case reached the House of Lords who changed his verdict to manslaughter, thus the ‘Moloney Guidelines’ were created. In relation to intent, Lord Bridge said:
“The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what it meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that … some further explanation or elaboration is strictly necessary to avoid a misunderstanding”.
Lord Bridge also went on to say that the jury in a trial should be asked to decide a defendant’s fate on two matters. Firstly, was death or 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 then be informed that if they answer yes to both questions it is a proper inference for them to draw that he intended the consequence of his actions.
In this particular situation, where the defendant has killed or seriously injured a person on purpose, reference to foresight of consequences is not necessary. Lord Bridge concluded that there was no rule to show that the foresight of consequences was equivalent to necessary intent. It is worth noting that the ‘Moloney Guidelines’ are no longer in English Law as they were doubted in the case of Hancock and Shankland 1986. Under the ‘Moloney Guidelines’, the word ‘probable’ was not used despite it being mentioned in section 8 of the Criminal Justice Act 1967 (‘natural and probable consequence’). Thus, it is appropriate to say that in the case of Hancock and Shankland 1986, the Moloney Guidelines were effectively useless.
The case of Hancock and Shankland 1986 concerns defendants who were striking miners who were bitterly angry and felt betrayed when a fellow miner went back to work. The defendants were so angry they wanted to prevent this miner from going back to work. As this miner was travelling to work in a taxi, they pushed a concrete brick off a bridge and onto the taxi. The driver of the car was killed as a result. At the trial the judge recited the Moloney Guidelines to the jury and the defendants were later convicted of murder. However, the defendants appealed their conviction and the case reached the Court of Appeal. At the Court of Appeal the conviction was quashed and in the House of Lords, Lord Scarman quoted the ‘Moloney Guidelines’ were as follows:
“In my judgement, therefore, the Moloney guidelines as they stand are unsafe and misleading. They require a reference to probability. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.”
This case essentially confirmed that the ‘Moloney Guidelines’ were deficient and misleading. The Court of Appeal also communicated that even when there is a belief that the defendant must have known his consequences of his act were virtually certain, this is not the same as saying that he has such intention.
Nedrick 1986 and Woollin 1998
Nedrick 1986
The case of Nedrick 1986 presented 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 that of Hyam. In this case the defendant poured petrol through a letter box and set it alight and the death of a child resulted. The jury later convicted Nedrick of murder. However, on appeal of the defendant’s conviction it emerged that the judge had misdirected the jury. Lord Lane produced some advice on exactly how to address the jury:
““…if they are satisfied that at the material time the defendant recognised that death or serious injury would be virtually certain 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.”
These guidelines set in place 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. Therefore, in this case the jury did not have the option to convict the defendant of murder, unless they are virtually certain that a consequence would be death or serious injury, further, the defendant must also recognise this.
Woollin 1998
In this case the defendant was alleged to have violently shaken his three month old baby and thrown him across the room in the direction of a pram four to five feet away. Woollin admitted in interviews that the baby had hit the floor hard but he claimed that he did ‘not think it would kill him’, although he did accept that there would be a risk of injury. During this case, the judge had given ‘Nedrick directions’ (“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.”) to the jury. The judge also said to the jury the following:
“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 was said so that the jury had the opportunity to find intention because there was such sufficient evidence.
The defendant appealed his conviction of murder using the defence that the judge’s direction to the jury was substantially misleading “as to the degree of foresight required”.
The defendant lost his appeal in the Court of Appeal as they concluded that the judge had given the Nedrick direction albeit that the circumstances were also confused by the ‘substantial risk’ comment instead of ‘virtual certainty’. Consequently, the impossibility of discovering which direction the jury would have followed. The defendant’s conviction for murder was later quashed and substituted with a conviction for manslaughter.
The outcome of this case was so fundamental as Law Lords were almost forced to amend the law on mens rea in murder with relation to intent. A firm decision was made to abolish the two model questions of Nedrick and to only use the model direction from that case alone.
The state of law regarding foresight of consequences in relation to intent altered after the case of Woollin 1999 and is as follows:
‘If the jury are convinced that the defendant foresaw death or serious injury as a virtual certain consequence of his actions, they are entitled to find the intent that fulfils the mens rea requirement of a crime.’ The use of the phrase ‘entitled’ gives the jury an option of whether to or not, this gives an element of flexibility in the law which may also help the jury in the long run.
A further case with similar facts to the above is Scalley 1995. In this case the jury convicted the defendant of murder. However, the conviction was later quashed by the Court of Appeal because the jury should have been told that they could, but didn’t necessarily have to convict the defendant of murder if they believed he had the necessary foresight.
One final case that I shall now draw upon in relation to intent and foresight of consequences is the case of Matthews and Alleyne 2003. In this case the defendants dropped the victim from a bridge into a river. The defendants were aware that the victim was unable to swim, but they watched him doggy paddle towards the river bank at which point they left the scene. The victim later drowned. The defendants still claimed that they had not intended to kill the victim. However, the judge in the case disagreed and directed the jury that if drowning was a virtual certainty and the defendants appreciated that then they must have had the intention of killing the victim.
With reference to this case, it was decided in Woollin 1998 that foresight of consequences was not the same as intent, thus if the defendant recognised the virtual certainty of serious bodily harm or death to the victim, then this can be taken as evidence to show intention .
From these cases, we can make the judgement that the law has developed successfully in this particular area; however, the new laws on mens rea for murder are almost a step back to the decision and change in law made in the case of Nedrick 1986. It is now more the case that the word ‘find’ is interpreted in a way that it now means ‘infer’.
Conclusion
From the cases I have mentioned and discussed it is clear the law on what seems to define intention has altered considerably throughout the past twenty years, and will continue to do so as our society changes along with people’s expectations of a fair and moral criminal justice system. Furthermore, the way judges direct the jury has been an interesting continuous change, and this will also continue to change as law moves with society. It is worth noting that some reforms on the law of intention were considered in 1993 by the Law Commission in the report of ‘Offences against the Person and General Principles’. However, the reforms that were put forward only refer to nonfatal offences, so how well it would work in relation to fatal offences remains to be seen.
I believe strongly in relation to the essay title ‘foresight of consequences is not the same as intent’. However, it is not as clear as perhaps it should be. The common phrase ‘highly probable’ is used to such an extensive extent and is now no longer a satisfactory phrase. The reason is because this phrase is too vague to be used amongst legal vocabulary and leaves too much room for interpretation and flexibility. Today, the term ‘virtually certain’ is used frequently. There is still much debate as to whether foresight of consequence as being virtually certain, actually amounts to intention. For example, the case of Nedrick confirms this as the Court of Appeal’s final direction appeared to be that foresight of a consequence as being virtually certain was not the same as intent.
Overall, it seems evident to me that there is no link in English criminal law between foresight of consequences and intent. They may blur from time to time, however I feel it is clear that they are completely separate. This is because intent is found from the evidence from the foresight of the consequence. Intent can only be discovered if the consequences were ‘virtually certain’ of the defendant’s actions and the defendants themselves recognised this.
I believe that foresight of consequences is not the same as intent and should never be the same to avoid confusion within criminal law.
Bibliography/References
Roe, D – (1999) “Criminal Law”, Hodder and Stoughton
Martin, J – (2006) “Criminal Law for A2”, Hodder Arnold
Cases
Hyam v DPP (1975
R v Matthews and Alleyne (2003)
R v Hancock and Shankland (1986)
DPP v Smith (1961)
R v Woolin (1998)
R v Mohan (1975)
R v Moloney (1985)
R v Nedrick (1986)
R v Belfon (1976)
Woolmington v DPP (1935)
R v Scalley (1995)
R v Steane (1945)