Foresight of consequences is not the same as intent.
Written by Hannah Whittenham (sept 2007)
Introduction
To constitute a ‘crime’ both the mens rea and the actus reus must be present. (The exception is that of strict liability offences.) Intention is one of the types of mens rea. The burden of proof was established by Woolmington v DPP(1935) and it is that of “beyond all reasonable doubt.”
We can divided intention into two categories; that of direct and oblique intent. Direct intent, as implied by the name is whereby the person had a purpose. For example, if I were to go and hold a gun to someone’s head and then pull the trigger it is obvious that I had direct intent. On the other hand, oblique intent is where the defendant intents one thing, however the consequences that occur are different.
I will explore the title of the essay, “foresight of consequences is not the same as intent” in relation the crime of murder. The required mens rea for Murder, as per R v Maloney, is an intent to kill or Cause GBH.
Intention is generally defined in terms of foresight of particular consequences and a desire to act or fail to act so that those consequences occur. It is distinguished from recklessness because, on a subjective basis, there is foresight but no desire to produce the consequences.
It is the role of the jury to decide if intent is present as there is no strict definition laid down by Parliament for the law to follow. The judge present at the trial will guide the jury using specific words to help them find if intention is present. He/she will use precedent to ensure he is using the correct words. It is up to the jury to see whether the state of mind exists in the defendant. This can be extremely difficult as it can be difficult to ascertain precisely what the defendant was thinking at that time.
Discussion of statement
In the case of DPP v Smith (1961) there was authority for the view that a person foresaw and intended the natural and probable consequences of his acts. In this case the defendant had been ordered to leave his car, which contained stolen goods. Instead, he accelerated sharply and drove off at speed with a policeman clinging to the vehicle. The officer was thrown into the path of an oncoming car and died from his injuries. It was laid down that if the defendant had the necessary intention for murder is an ordinary responsible man, in similar circumstances would have contemplated the end result. In s8 of the Criminal Justice Act (1967) it states in regard to foresight of consequences that:
“A court/jury in determining whether a person has committed an offence-
a) shall not be bound in law to infer that he intented/foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
In the case of Hyam v DPP (1975) the defendant became jealous when another woman took her place in the affections of her friend who was male. Two children died as a result of her pouring paraffin through the letterbox of the woman. It was disputed that she had no intention to kill. Instead, she wanted to frighten the other woman. She appealled, however it was rejected. There was a varied response from the judges for the dismissal. However, at least two gave the impression that intention was established if it was shown that the defendant foresaw the result as highly probable. This was concluded as not having the intention to cause the act in question. Instead it was evidence for the jury to look at when deciding if intention was present.
There are several key cases to illustrate the points of foresight of consequences. In the case of Maloney (1985) the defendant shot his step father in an incident. They had been loading a shotgun together each and then the defendant pulled the trigger, as a result the step father died. The law from this case was that foresight of consequences is not intention itself, but merely evidence of it. This aspect of the House of Lords judgment is still law today. The charge for murder was quashed and substituted for that of manslaughter.
Lord Bridge held there was no rule that foresight of probable consequences was equivalent to, or alternative to, the necessary intention for a crime of specific intent. Rather, it was a part of the law of evidence. He gave the example of a man boarding a plane which he knows to be bound for Manchester, he “conclusively demonstrates” his intention to go there. It is not merely evidence from which such intention may be inferred. If, necessary to direct a jury by referring to foresight of consequences, two questions can arise:
b) did the defendant foresee that consequence as being a natural consequence of his act?
The case of Hankcock and Shankland (1986) then focused on the probability that the particular harm will result from what has been done. In this case miners, who were on strike dropped lumps of concrete onto the road and killed a taxi driver. Lord Scarman puts it that:
“the greater the probability of a consequence the more likely it is that the consequence was foreseen and if that consequence was foreseen, the greater the probability is that it was also intended.”
Therefore the law held in this case was 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 that the consequence was also intended.
Nedrick (1986) bought up the issue of intent once again where the Court of Appeal felt that the judgments in the cases of Maloney (1985) and Hankcock and Shankland (1986) needed to be made clearer. In this case the defendant poured paraffin through a letter box, causing a fire in the house which a child died. Lord Lane summarised the law as follows:
“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 defendant’s actions an that the defendant appreciated that such was the case.”
To summarise the law held that the jury were not entitled to infer the necessary intention unless sure that death or serious bodily harm was a virtual certainty and that the defendant appreciated this.
Until 1998 in the case of Woolin, Nedrick remained law, however then the issue went to the House of Lords. The defendant threw a 3 month old baby at its pram, causing its death. The Law Lords felt that the model direction given in Nedrick was helpful, but refined it to determine that the model direction should be used but the word infer substituted for the word find. Therefore, the model direction to now be given is that “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.” Although, the difference between using the word ‘infer’ and ‘find’ is materially not that much it creates something which is more ‘concrete.’ If the jury have to ‘infer’ something then it indicates that it may not really be there and it is more of an assumption. On the other hand, ‘find’ is more definite.
Indeed, this did cause some problems as in the Criminal Justice Act 1967 uses the word infer. In addition to this, is whether the use of the word find means that foresight of consequence is intention and not merely evidence of it.
However, in the case of Matthews and Alleyne (2003) (the defendants dropped a victim 25 feet from a bridge into a river, they watched him but he couldn’t swim and he drowned), it held that the judgment in Woolin meant that foresight of consequences is not intention. Here, the defendants threw their victim into a river here he drowned. However, intention is a rule of evidence. If a jury decide that the defendant foresaw the virtual certainty of death/serious injury then they are entitled to find intention but they do not have to do so.
Conclusion
In conclusion, the statement in the title is correct. Foresight of consequences is not the same as intent. Foresight of consequences can only be evidence of intention if the accused knew that the consequences would definitely happen.
Bibliography
Matthews and Alleyne (2003)
Maloney (1985)
Hankcock and Shankland (1986)
Nedrick (1996)
Woolin (1998)
DPP v Smith (1961)
Hyam v DPP (1975)
Woolmington v DPP (1935)
Martin J Criminal Law – Hodder Arnold (2006)
Roe D. Criminal Law – Hodder and Stoughton (2006)