Written by Vicky Burgess.
In English criminal law the burden of proof that a defendant had the necessary criminal liability for a guilty verdict is on the prosecution. The prosecution must prove (beyond all reasonable doubt [Woolmington 1935]) that the defendant committed the offence (the actus reus) and that the defendant also had the requisite state of mind for committing the offence (the mens rea). Mens rea can be considered to be the “degree of blameworthiness required by the offence in question” (Roe 2002), and for the most serious of offences (such as murder) this “degree of blameworthiness” is an intention to commit the crime. There is no meaning of the word intention in any statute. In English law, direct intent can be equated to the normal meaning of the word intent: the defendant wanted the result that actually occurred and had set out to deliberately achieve it (for example D wants to kill V, points a gun at V’s head and shoots). Problems arise in law where the intention is oblique, or indirect (for example D wants to scare V and so sets fire to Vs house. The direct intent is to scare, but what if V dies as a result of the fire? Can D be said to have had an indirect intent to kill V?).
Lord Goddard CJ said that “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 point of law in question was whether or not motive was relevant to intent. Lord Goddard went on to say that “if the circumstances showed that the act was as 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)
This problem, of how to prove or define intent (when it was not clear or direct) arose again in D.P.P v. Smith (1961) AC. The defendant, having been ordered to get out of his car by a police officer, drove away with the officer clinging to the bonnet. The police officer was thrown into the path of an oncoming vehicle and died of his injuries, and the defendant was convicted of murder. On appeal, D. claimed that he had not intended to kill the police officer, and therefore he could not be convicted of murder. The House of Lords upheld the conviction for murder, saying that if an “ordinary man” would have “contemplated” the end result then the necessary intention was proved. There was severe criticism of this objective approach to intention, which led Parliament to pass the Criminal Justice Act of 1967, section 8 of which provides:
A court or jury, in determining whether a person has committed an offence, -
This is clearly a subjective approach to establishing proof of intent, the focus being on what the defendant actually foresaw and intended, rather than on what he (being an ordinary man) should have foreseen. The use of the phrases “intended or foresaw” and “natural and probable consequences” are perhaps the modern day starting point of the confusion in law over whether or not foresight of consequences is actually the same as intent. The development of the law on foresight of consequences and its link to intent has taken place largely in case law involving charges of murder.
In Hyam v. D.P.P (1975) AC, the question before the House of Lords was whether or not the mens rea required for murder (the intention to kill or cause serious bodily harm) was established when the defendant knew that it was highly probable that her act would result in death or serious bodily harm. It should be noted that the question in Hyam was not whether foresight of consequences was the same as intent. The facts of the case were that the defendant had poured petrol through the letterbox of a house and set fire to it, with the (claimed) intention of frightening the occupants; two children died in the fire and the defendant was convicted of murder. The House of Lords upheld the conviction for murder, effectively equating foresight of “highly probable” death or serious bodily harm with intent, although examination of their Lordships’ speeches reveals a distinct lack of clarity. Lord Hailsham said “I do not consider that the fact that a state of affairs is correctly foreseen as a highly probable consequence of what is done is the same thing as the fact that the sate of affairs is intended”, whilst Lord Diplock (stating agreement with his fellow Lords?!) said that “no distinction is to be drawn between the state of mind of one who does an act because he desires a consequence, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence”. Despite the apparent disagreement amongst the Lord’s themselves, the state of the law on intention seemed to be that if the foreseeable consequences of an act were considered to be “highly probable” then this was enough to establish that the agent of the act intended the consequences.
The Court of Appeal, in two non-fatal injury cases (Mohan 1975 and Belfon 1976), appeared to reject this conclusion. In Belfon, Wien J. stated that “foresight and recklessness are evidence from which intent maybe inferred but they cannot be equated either separately, or in conjunction with intent”. So at this point in law (1976) foresight of consequence is not the same as intent, but is evidence pointing towards the existence of intent.
The House of Lords in Moloney (1985) upheld this view. The facts of the case were that the defendant and his step-father had a drunken race to see who could load a shogun the fastest, Moloney won the race and (he claimed) on being dared by his step-father to pull the trigger did just that, blowing his step-father’s head off. He claimed that he had no intention to kill his stepfather and had not given any thought to the consequences of pulling the trigger. The House of Lords reduced the conviction from murder to manslaughter, and the “Moloney guidelines” were created. Lord Bridge said that the following questions should be put to the jury: “First, was death or really serious injury a natural consequence of the defendant’s act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act?” and went on to say that if both questions were answered in the affirmative then “it is a proper inference for them [the jury] to draw that he intended that consequence”. This would appear to confirm that a subjective view should be taken regarding intent (which seems obvious given that intent is directly to do with the defendants state of mind). But the phrase “proper inference” could imply that natural consequences, if thought about by the defendant, must be taken by the jury as being intended. The term “natural consequences” is also ambiguous, with little clarity being gained from Lord Bridge’s statement that “the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent”.
In the case of Hancock and Shankland (1986), 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 that the Moloney guidelines were unsafe and misleading, although he offered no alternative. Much was said about probability of consequences occurring and the importance of explaining this to the jury, but no further guidelines were made.
The case of Nedrick (1986) gave the House of Lords the opportunity to clarify the apparent confusion in law regarding foresight o f consequences and its relation to intent. The facts of the case were very similar to those in Hyam. The defendant poured paraffin through the letterbox of a house and set fire to it. A child died in the fire. The defendant claimed that his intention was to scare the occupants of the house, not to kill anyone. The jury was given a direction, which equated foresight of consequences with intention, and the defendant was convicted of murder. The initial trial took place before the House of Lords’ judgements in Moloney and Shankland and Hancock. Lord Lane C.J reiterated that equating foresight with intention was not correct, and that Lord Bridge of Harwich (speaking in reference to Moloney) had been correct in saying that foresight of consequence was part of the law of evidence, not the substantive law. 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.
There is an important difference to note in the way the directions were phrased in Moloney and then Nedrick. In Moloney it was said that affirmative answers to the questions meant that the “proper inference” was that the defendant had the necessary intent. In Nedrick the phrasing is in the negative, stating that no inference may be drawn unless both questions are answered in the affirmative. This leaves whether or not to infer intent as a decision for the jury that they can only even consider if they feel sure that death or serious injury was “virtually certain” and that the defendant appreciated that.
The question of the direction that should or should not be given to the jury arose again in R v. Woollin (1999) A.C 82, which reached the House of Lords. The defendant had been convicted of the murder of his three-month-old son. The facts of the case were that the defendant had lost his temper and thrown the child across the room towards a cot, the child had hit the floor, fracturing his skull, and died. During the case the judge had given the Nedrick directions to the jury, but he also at one point used the phrase “substantial risk” (as opposed to “virtual certainty”). Because 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. When the case was referred to the House of Lords, one of the questions being considered was when the Nedrick directions should be given to the jury. “Is such a direction necessary in all cases [of indirect intent], or is it only necessary in cases where the sole evidence of the defendants intention is to be found in his actions and their consequences to the victim?”(Lord Steyn, A.C) This question arose because it was thought by the Court of Appeal that there was evidence (other than foresight) of the defendants state of mind (such as him admitting to loosing his temper), and that section 8 of the Criminal Justice Act (1967) stated that the jury was to “take into account all the evidence, drawing such inferences as appeared proper” and that this other evidence negated the need for the judge to give the jury the Nedrick directions. Lord Steyn disagreed with this view and said “it may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act…the trial judge is best place to decide what direction is required by the circumstances of the case”. Thus no further rules were laid down prescribing when the Nedrick directions should or should not be given.
So the state of the law regarding foresight of consequences and its relation to intent, following Woollin (1999), was as follows: if the jury are convinced that the defendant foresaw death or serious injury as a virtually certain consequence of his actions, then (and only then) are they entitled to find (changed from “infer”) the intent that fulfills the mens rea requirements of the 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 facts very similar to Nedrick, the jury convicted the defendant of murder (having been given the Nedrick directions) 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 that he had the necessary foresight.
A recent case, Matthews and Alleyne (2003), appears to contradict the decision in Scalley. The Court of Appeal upheld convictions for murder despite the direction given by the trial judge equating foresight of consequences with intent. The defendants had pushed a man off a bridge into a river and he drowned; the defendants knew that he could not swim but none the less claimed in court that they had not intended to kill him. The judge directed the jury that if “drowning was a virtual certainty and they [the defendants] appreciated that then they must havehad the intention of killing him.” Following the decision in Scalley, the use of the phrase “must have” would appear to be good grounds for appeal, but the Court of Appeal dismissed this, upholding the conviction for murder.
It can be seen that the law with regard to foresight of consequences and intent is likely to be developed further as relevant cases reach the highest courts of appeal. The question of whether the jury may find, or are bound to find intent, from evidence of consequences being virtually certain, appears still to be undecided. What does appear to be clear is that there is no direct link in English criminal law between foresight of consequences and intent, and that foresight of consequences is merely evidence from which the jury may find intent (Woollin 1999). Whether or not the defendant foresaw the consequences at all must be established subjectively (Criminal Justice Act 1967, sec. 8) and intent can only be found if the consequences were a “virtual certainty” of the defendant’s actions and the defendant realised this(Nedrick 1986 and Woollin 1999). So in English criminal law today, foresight of consequences is not the same as intent.
Vicky Burgess (Oct 2004)Allen J. M. (2004) “Elliott & Wood’s Cases and Materials on Criminal Law” 8th ed. Sweet & Maxwell
Roe D. (2002) “Criminal Law” 2nd ed. Hodder & Stoughton
Storey T. & Lidbury A. (2004) “Criminal Law” 3rd ed. Willan Publishing
DPP v. Smith (1961) A.C 290, HL
Hyam v. DPP (1975) A.C 55, HL
R v Matthews and Alleyne (2003) CA
R v Moloney (1985) A.C. 905, HL
R v Scalley (1995) CA
R v. Belfon (1976) CA
R v. Hancock and Shankland (1986) A.C. 455, HL
R v. Mohan (1975) CA
R v. Nedrick (1986) CA
R v. Steane (1945) K.B. 997, CCA
R v. Woollin (1998) A.C. 82, HL
Woolmington v. DPP (1935) A.C. 462, HL
Criminal Justice Act (1967)