Explain and Discuss Using Case Law the Following Statement:
“Foresight of Consequences is not the same as Intent...”

Written by Ruth Maltby (AS and A2 Law Student).

Introduction:

Under the current English Legal system, to find someone guilty of committing a criminal offence two factors must be proven. Firstly, the defendant must be proved to have committed the actus reus ‘guilty act’. The actus reus must be used with the mens rea, the ‘guilty mind’. However, strict liability offences need no proof of mens rea.

These two elements (Actus Reus and Mens Rea) must be proven to exist ‘beyond reasonable doubt’. This was established in ‘Woolmington V DPP’ (1935), when the House of Lords decided that these two elements were essential for a successful conviction to take place.

However, problems can arise with Mens Rea, in that the wrong must be committed with:

“The relevant Mens Rea i.e. the degree of blame worthiness required by the offence in question”.

This essay will explore the statement “Foresight of Consequences is not the Same as Intent” in relation to the criminal offence of murder, where it is necessary for the defendant to have the relevant mens rea to be prosecuted for murder. Basically, the defendant must be proved to have intended to cause death or serious injury to the victim.

Intention:

There is currently no decisive definition of ‘Intent’ in English Criminal Law as it has never been defined by Parliament, but it is the job of a jury in a trial to determine if it exists. This decision is made under guidance from the judge, who in turn relies on past common law case law, that has set a precedent in the field , to help him use the correct wording to advise the jury effectively.

There are two types of intent, direct and oblique. Direct intention is when the defendant aims to commit the wrong and want the result that occurs. For example D shoots V in the chest, he wants to kill him and V as a result dies – this is direct intent. The second type of intent is oblique intent, this is where the defendant does one thing with intent but as a consequence there was another outcome. For example D shoots V in the arm trying to hurt him (direct intent), however his bullet keeps on going and hits an innocent bystander (B) who dies. D did not intend to kill B so this is oblique intent.

People have tried to define intent in general terms; one example of this is a suggestion for a definition from the Draft Criminal Code:

“...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 if events.”

Meaning that for someone to intend to do something, they have to act for it to happen and they have to be aware that this action would ‘in the ordinary course of events’ result in a particular way.

Lord Goddard CJ says:

“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…”

Lord Goddard emphasises the importance of a ‘specific intention’ rather than an oblique intention in determining if the act was committed with the required mens rea. The jury would have to decide if the motive was sufficient as intent. Lord Goddard also said:

“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 to be acquitted.” (R v Steane 1945)

This clearly states that if the person did not intend to do something they must be acquitted.

In the case of Cunliffe V Goodman (1950) Asquith LJ said that

“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”

In the case of DPP v Smith (1961), the problem of how to define intent and therefore prosecute arose. In this case the House of Lords said

“That the defendant had the necessary intention for murder if an ordinary reasonable man, in similar circumstances would have contemplated the end result”

It was after this result that the House of Lords came to the conclusion that a test was needed for determining intent in murder cases. On the advice of the Law commission the Criminal Justice Act 1967 was created. This was the starting point for the argument about foresight of consequences. In section 8 of this 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 the case of Hyam V DPP (1975), the defendant said that she had only intended to scare the woman by causing a fire at her home in which two children died. The House of Lords dismissed this appeal, although they were divided over it. Some thought that foresight of consequences established intention, by Lord Hailsham did not agree and his opinion was used in the cases of Mohan (1975) and Belfon (1976) by the Court of Appeal.

The cases of Mohan (1975) and Belfon (1976) were both nonfatal cases. The Judges in this case were of similar opinion to Lord Hailsham. In the case of Mohan (1975) intention is described as:

“A decision to bring about, in so far as it lies with the accused’s power [with the prohibited consequence], no matter whether the accused desired that consequence of his act or not”

The judges in these two cases concluded 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.

The Moloney Guidelines (1985) and Hancock and Shankland (1986)

The question of what defines intent came up again in the case of ‘Moloney’ (1985), in this situation the defendant (D) had been drinking with his stepfather when they began to play a game. They were racing to see who could load their shot gun fastest, when D loaded his quicker the stepfather dared him to pull the trigger. He did this and the stepfather died.

Moloney was convicted of murder, but he appealed and the House of Lords changed the verdict to manslaughter. Lord Bridge said in relation to intent that:

“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 misunderstanding”

However, problems arise with when this further help shall be given to the jury and Lord Bridge went on to give to questions that could be given to the jury:

“First, 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 then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended the consequence”

At this point in law, when the defendant has killed or seriously injured a person on purpose, reference to foresight of consequences is not necessary. Lord Bridge said that there was no rule to show that the foresight of consequences was equivalent to necessary intent. However, these ‘Moloney Guidelines’ are no longer in use in English Law as they were doubted in the case of Hancock and Shankland (1986).

In the ‘Moloney Guidelines’, the word ‘probable’ was not used even though it is mentioned in section 8 of the Criminal Justice Act 1967 (‘natural and probable consequence’) therefore in the case of Hancock and Shankland (1986) the ‘Moloney Guidelines’ were useless.

In the case of Hancock and Shankland (1986) the defendants (D’s) were striking miners and they wanted to stop another miner from getting to work. So, as this miner was travelling in a taxi on his way to work, they pushed a concrete block off a bridge onto the taxi. The driver was killed. At the trial, the ‘Moloney Guidelines’ were used and the D’s were found guilty of murder. However, in the Court of Appeal this was quashed and in the House of Lords, Lord Scarman said that the ‘Moloney Guidelines’ were:

“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 conclusively decided that the ‘Moloney Guidelines’ were ineffective, also the courts of appeal ‘stressed that even where there is a belief that the defendant must have known that the consequences of his act were virtually certain, this is not the same as saying that he has such an intention’

Nedrick (1986)

The issue of intent, and the problems that arose through the way the judge directs a jury was brought up again in 1986 with the case of Nedrick. The Court of Appeal decided that this matter needed to be made clearer.

The defendant (D) had a grudge against a woman so set fire to her house – to scare her. However, a child died in the fire and D was convicted of murder. However, on appeal it was ruled that the judge had misdirected the jury, so Lord Lane said, on 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.”

Therefore, the jury could not convict the defendant of murder, unless they are virtually certain that a consequence would be death or serious injury. Also, the defendant must recognise this.

Woollin (1998)

In this case, the defendant (D) threw his baby (three months of age) against a wall, in the direction of the pram. The baby died as a result of the injuries that it sustained and D was charged with murder. D said that his intention was not to kill the baby.

The judge used the two model questions from the case of Nedrick, which was still the leading case in this field, and also said to the jury:

“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.”

Then they could find intention because there was sufficient evidence.

D appealed his conviction of murder and the defence was that the judge’s direction to the jury had been misleading “as to the degree of foresight required”.

D lost his appeal in the Court of Appeal as they decided that the judge had given the Nedrick direction albeit that the matters were also confused by the 'substantial risk' comment. Overall. the Court of Appeal felt that the direction had not been misleading. However, when the case reached the House of Lords the defendant won his appeal due to the potential for the jury being confused by the conflicting direction given by the judge in the first instance trial (Woolin was found not guilty of murder - but guilty of manslaughter) and consequently the Law Lords amended the law on mens rea in murder with relation to intent. The decision was made to scrap the two model questions from Nedrick and just to use the model direction from that case instead. They would also change the word ‘infer’ to the word ‘ find’, it was thought that the word ‘find’ would be more helpful and the model direction was amended to :

“The jury should be directed that they are not entitled to find 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 defendant’s actions and that the defendant appreciated that such was the case.”

In the case of Woollin the conviction of murder was quashed because the direction given by the trial judge was deemed misleading because he mentioned ‘substantial risk’ in relation to foresight of consequences and intent. The misleading direction was deemed to be ‘material misdirection’ so the D’s appeal was allowed.

The only problem with this reform in the law is that the word ‘infer ‘ can be found in section 8 of the Criminal Justice Act [1967] and changing it to ‘find’ is going against the legislation.

Matthews and Alleyne (2003)

In the case of Matthews and Alleyne (2003), the defendants (D’s) dropped the victim (V) from a bridge into a river. The D’s knew that V could not swim, but the watched him doggie paddle towards the river bank at which point they left. V drowned.

In this case the D’s were convicted of murder and in the Court of Appeal this conviction was upheld, even though the words of the judge suggest that foresight of consequences is intention:

“Drowning was a virtual certainty and they appreciated that then they must have had the intention of killing him”

In relation to this case and the law today, it was taken that the decision in Woollin [1998] meant that foresight of consequences was not the same as intent and therefore, if it is thought that a defendant foresaw the virtual certainty of serious bodily harm or death to the victim then this can be taken as evidence to show intention - however it does not have to be taken as such.

Although the law has developed in this area steadily, the new laws on the required mens rea for murder, as detailed above, are a throwback to the decision and change in law made in Nedrick. It can be said now that the word ‘find’ is used in such a way that it means ‘infer’.

Conclusion:

The law on what constitutes as intention will continue to change, as I have shown that it has in the last twenty years or so. What will also continue to change is how Judges are allowed to lead the jury; often the Judges have disregarded legislation and mislead the jury [Moloney 1985]. In 1993 there was some suggestion for reform of the law on intention from the Law Commission in the report ‘Offences Against the Person and General Principles’:

“A person acts intentionally with respect to a result when:
i) it is his purpose to cause it; or
ii) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result.”

However, this is a suggested reform for nonfatal offences but there is nothing to say that it could not be applied to fatal cases as well.

The phrase ‘highly probable’ is now no longer satisfactory as it leaves too much room for interpretation for judge and jury alike. Now, the term ‘virtually certain’ is used. The word ‘find’ is also currently used instead of ‘infer’ although it is now being used to mean infer.

There is still some debate as to whether foresight of consequences is the same as intent, although at this point in English Law it can be said that foresight of consequences is merely evidence from which the jury can find/infer guilt, and this is not compulsory.

Ruth Maltby (September 2006).

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References:

Roe, D – (1999) “Criminal Law”, Hodder and Stoughton

Martin, J – (2006) “Criminal Law for A2”, Hodder Arnold

The Parliament Home Page – http://www.publications.parliament.uk

Law Web site – www.swarb.co.uk

Cases:

Woolmington V DPP (1935)

R v Steane (1945)

Cunliffe V Goodman (1950)

DPP v Smith (1961)

Hyam V DPP (1975)

Mohan (1975)

Belfon (1976)

Moloney (1985)

Hancock and Shankland (1986)

Nedrick (1986)

Woollin (1998)

Matthews and Alleyne (2003)

Statute:

Criminal Justice Act 1967