The mens rea of intention is predominantly an issue for murder cases. It refers to an intention to kill or cause serious bodily harm.
There are two types of intent
- Direct intent – This is where death is the main aim of the act.
- Oblique intent – This is where the defendant has created a huge risk but the consequences are not the main aim of the act.
Oblique intent is problematic for the jury because they can be classed as either murder or manslaughter. In response to this, the courts have created a series of guidelines to assist juries. A guideline is not the same as a definition as the former allows for a greater degree of flexibility, providing the jury with moral elbow room. A common law or statutory definition would restrict the jury.
DPP V Smith (1961) – A police officer was thrown from Smith’s moving vehicle and died.
‘Would an ordinary and responsible person, in a similar circumstance have contemplated a similar result.’
This was a problematic decision because it was an objective test. It is difficult to establish the intention of the defendant. As Clarkson and Keating says we do not have ‘intention meters’ to plug into people’s brains. An objective test is only concerned with the perspective of an ordinary and responsible person. It is not concerned with the perspective of the defendant.
S8 The Criminal Justice 1967 stated that intention must be a subjective test. This is a problematic area because we do not have intention metres to ‘plug into people’s brains.’ (Clarkson and Keating) It is important to use a subjective test rather than an objective one as establishing intention requires the defendant’s perspective to be examined.
Hyam V DPP (1974) – Hyam poured petrol through the letterbox of her lover’s mistress. Two of her children died in the blaze and Hyam was convicted of murder.
If the defendant foresees the death or grievous bodily harm to be highly probable then this satisfied the meaning of intention.
Criticism: Foresight of consequences as highly probable is not the same as intention. This definition is too broad and resembles recklessness. For example, a person who drinks heavily on a Friday night might foresee a hangover as highly probable but may not intend a hangover.
Williams (1983) argued that the Hyam position was morally confusing as there is a significant difference between wanting something to happen and foreseeing it to be a highly probable consequence. The former is more morally blameworthy than the former. The House of Lords was forced to retreat from the position in Hyam in
R V Moloney (1985)
Moloney challenged his stepfather to a dual after a drunken night out. Moloney shot his father dead. Lord Bridge was critical of Hyam as foresight of consequences as highly probable is not the same thing as intention but is mere evidence of intention. He said that if the result foreseen was a little short of ‘overwhelming’ then intention may be satisfied. He then laid down the following guidelines:
Did the defendant foresee the forbidden result as the natural consequence of his actions? Where this is the case then this constitutes evidence of intention.
However, these guidelines were disapproved of by the House of Lords in
Hancock and Shankland (1986)
Two striking miners dropped a concrete block from a bridge onto an oncoming taxi, killing the taxi driver.
The guidelines in Moloney were criticised for being ‘unsafe and defective.’ The word natural was too vague and gave insufficient guidance as to the meaning of probability. The greater the probability, the more likely that intention may be inferred. The word natural was replaced with highly probable. This case was keen to emphasise that this was still only evidence of intention.
The term ‘evidence of intention’ is a subtle but important concept as it is the difference between a guideline and a definition. If foreseeing the consequence to be highly probable equates with intention then this is a definition that gives the jury little room to manoeuvre. The term ‘evidence of intention’ means that the jury MAY infer intention or they MAY not. As the boundaries between murder and manslaughter are grey, this freedom is essential.
In R V Nedrick (1986) where the case facts were similar to Hyam, the courts sought to clarify the degree of probability by introducing the concept of virtual certainty. Virtual certainty is a higher degree of probability.
Did the defendant foresee the consequences to be virtually certain? Where this is the case the jury may infer intention.
In Woollin (1998) A father threw his baby boy against a hard surface and fractured his skull. Lord Steyn replaced the word infer with find because it was thought that the word ‘find’ gave greater clarity to the jury.
In R V Matthews and Alleyne (2003)
The defendants threw the victim into a deep river after robbing him. They were fully aware that the victim could not swim. The trial judge guided the jury as follows: If drowning was a virtual certainty and the appellants appreciated that then they must have had the intention of killing him. The defendants appealed on the basis of a misdirection arguing that the guidelines had been contravened as foresight of virtual certainty had been equated with intention. The appeal was dismissed.
The fact that jury MAY find intent, gives them an important get out clause. The courts are keen to give some structured guidance and nothing short of foresight of virtual certainty will suffice. However, the courts are at the same time keen to allow some ‘moral elbow room.’ The current guidelines are very flexible in that juries are not forced to convict but do have the freedom to do so if appropriate. If there were a strict definition, that required the defendant to ‘want’ the desired outcome then many defendants would escape liability.
Equally, the flexible guidelines give the jury freedom to acquit where appropriate. For example, the close loving relationship in Moloney might be enough to persuade a jury not to convict.
However, it could be argued that the guidelines create inconsistency and confusion. For example, one jury could find Hyam guilty of murder while another could conclude manslaughter. Clarkson and Keating point out that this situation is ‘undesirable.’ It invites ‘prejudice, discrimination and abuse.’ If we were to adopt a statutory definition or adopt the Woollin guidelines as a firm definition, this problem would be remedied.
Another problem, centres on the interpretation of Woollin. Lord Steyn was careful to limit the guideline murder. Therefore it is unclear whether intention has the same meaning throughout the criminal law.
Reform of the Law of Murder
In 2006, The Law Commission published a report suggesting the reform of murder to incorporate First Degree and Second Degree Murder. The Commission argues that it is unjust to convict those of murder who intend to carry out serious bodily harm but not death. First degree murder who be used only for those who had an intent to cause death and all other unlawful killings that involve oblique intent would be classed as second degree murder. So too would cases where provocation and DR is pleaded. The government responded to the proposals unenthusiastically by stating that they would consider them at a ‘later stage.’
The report also recommended that Woollin should be codified. This means incorporated into a statute. However, there have so far been no moves to implement this either.