Intention

Assess the modern approaches to the definition of ‘intention’ in English Criminal Law?

Introduction

Intention is a fundamental term in English
Criminal Law. Numerous criminal offences are defined as to require the proof of intention. It might be expected that the meaning of such a fundamental term would be settle a long time ago, however , that is not the case. Over the years there had been conflicting debate and courts had faced great difficulty in defining intention. Intention had been defined inconsistently and ambiguously by different judges in different contexts.
The debate starts with DPP v Smith (1961) and ends with R v Woolin (1998) In a criminal trial the burden of proof is on the prosecution to prove that the defendant is guilty “beyond all reasonable doubt” as confirmed in the case of Woolmington v DPP (1935). A crime requires two elements : the actus reus and the mens rea . Once actus reus is established by the Crown Prosecution service
(CPS) the mens rea needs to be proven. There are four types of mens rea. They are intention, negligence, recklessness and knowledge.
Intention and recklessness are hierarchical concepts therefore a clear boundary has to be drawn in order to label appropriate criminal liability. Furthermore, it is the task of the juries to decide whether or not the accused did or did not intend the consequence, the legal definition of intention should be clear and correspond to the possible ordinary meaning of the word. If the legal definition deviates significantly from the ordinary meaning it is possible that the jury may not understand the judges direction and take wrong decisions.
The mens rea of the commom law offence murder is “malice aforethought”. This means nothing more than an intention to kil and nothing more than intention to cause grievous bodily harm. If we take murder as an example we can see the difficulties the meaning of “intention” imposes. For instance, does malice aforethought ( intention to kill/ cause grievous bodily harm) constitute those circumstances where the defendant committed an act, but killing was not his primary aim, but resulted nevertheless,and he recognized that it was possible that death would naturally occur out of his actions? If so, how “possible” does death have to have been before it is regarded as an intention?
Intention
‘Intention is central to the cogent notion of criminal liability’ (Wilson). Intention has no statutory definition , therefore , we have to look at case laws. In R v Mohan (1976), Lord Justice James explained that intention meant to ‘aim’ or ‘bring about a particular consequence’. He considered that it was irrelevant whether the result was likely or unlikely to occur. It has also been made clear that there is a clear distinction between intention and motive ( Yip Chiu Chiang) . Motive is the reason behind the actors intention. There are two types of intention namely direct intent and oblique intent.

Direct intent
Direct intention is a situation where the defendant desires to bring about a particular action. The specific consequence is the main purpose or aim which results from the defendants actions. For instance in case of Bryne (1960) the defendant was a sadistic psychopath who liked to torture his victims. He would strangle the victim then cut open their body. It can be said that there was a direct intent to kill irrespective of the defendants mental condition

Oblique intent
The more complex meaning is often called oblique intent. This covers the situation where the consequence was not the defendants action but something occurred as a result of the defendants actions. He realizes, however, that the consequence is almost inevitable if he pursues his current course of action. This covers events which are side effects of the defendant’s actions.

Law reform Commission
There has been may suggestions and proposals for reform of the law of intention over the years due to its complicity. In 2006, the Law Reform Commission published a report on Murder, Manslaughter and
Infanticide. In the report it was recommended that the Woolin direction for oblique intent be codified.
Intention should be defined as follows:
(a) A person should be taken to have intended a result if he acts in order to bring it about
(b) In cases where the judges believe that justices may not be done unless an expanded meaning of intention is given. In those circumstances the jury may be directed as follows : an intention to bring about a result may be found if the defendant thought that the result was a virtually certain consequence of his or her action.

In subsequent cases the courts have struggled in finding the legal meaning of intention. In order to understand how the courts have taken modern approaches to do so and how the law in this area developed I will have to look at a series of cases

The first case that began to develop this area of law is DPP v Smith (1961)
This was the case authority that intention should be assessed objectively by reference to the foresight of a reasonable man and not by proof that the defendant actually foresaw the consequences of his actions. It was held that a side effect is intended if it was a natural and probable consequence of the defendants act. Therefore it was concluded that foresight of a consequence is the same as intent. However this decision gained a lot of criticisms amongst judges and academics, who disliked the use of an objective test in establishing intention in murder cases.

Subsequently this was effectively reversed by S 8 of the Criminal Justice Act 1967, enacted by the Parliament, which requires the jury to look at all the evidence in drawing appropriate inference. It proved that the jury should not infer intention if the side effect is a natural and probable consequence rather the jury should make reference to all the evidence. The courts have interpreted this as requiring a subjective test. Hyam (1975)

This case proved great challenge to the House of Lords in deciding whether the defendant was guilty of murder or manslaughter. The defendant was convicted of murder and she claimed that she had not intended to kill the victim but had foreseen death or grievous bodily harm as a high degree of probability. Lord Diplock upheld the conviction on the basis that since she acted on the knowledge that death or injury was likely she must be taken to have intended those consequences.
It was held that the mens rea was satisfied as the side effect was foreseen as a high degree of probability.

The problem with this decision was twofold. First this effectively eroded the discretion given to the jury under S8 of the Criminal Justice Act 1967. Secondly, the intention of the defendant that distinguishes murder from manslaughter was not clearly defined and it gave rise to ambiguity and injustice as people were given wrong label of criminal liability.

Moloney (1985)

In this case the courts took a different approach in defining intention. Lord Bridge put forward a ‘ golden rule’ which stated that judges should “ leave it to the jury’s good sense to decide”. He also added that judges should avoid elaborating on matters of intention unless it is strictly required to do so.
The golden rule was approved of in Fallon ( 1994)
According to Lord Bridge , two questions should be placed before the jury in order to infer intention.
(a) First, was death or serious injury in a murder case a natural consequence of the defendant’s voluntary act?
(b) Secondly, did the defendant foresee that consequence as a natural consequence of his act?
The jury should then be told if the answer to both the questions is “yes” then it is proper inference for them to draw that the consequence was intended.

This case was the first to disestablish the direct link between foresight( probability) of consequence and intention, precedent that was to be followed in all later cases. Although the Maloney guidelines laid down the foundation of directions to be given to the jury, its exact wording was to be challenged in many future cases. It was held to give misleading direction as it did not refer to the degree of probability of death or serious injury occurring and was considered unsafe.

The first case in which the Maloney guidelines were called into question is Hancock v Shankland (1986)
In less than a year their Lordships had to consider oblique intent again. Lord Scarman proposed that a jury might infer intention where the consequence was foreseen as highly probable. This means that greater the probability of a consequence the more likely it is that the consequence is foreseen, and if the consequence is foreseen greater the probability of the consequence to be intended.
The Moloney guidelines were refined by the House of Lords in Hancock v Shankland- who disapproved Lord Bridge’s term “natural consequence” but approved Moloney in all other respects.

The next case to occur, where the Court of Appeal sought to clarify the law, was Nedrick (1986).
The Court of Appeal provided the following model of direction in cases where there is insufficient evidence of direct intent:
(a) the jury should be directed that they are not entitled to infer intention unless they feel sure that death or serious injury was a virtually certain consequence( barring some unforeseen intervention) as a result of the defendant’s action and
(b) that the defendant appreciated that such was the case.
The Nedrick model gave a distinct line between intention and recklessness and between murder and manslaughter.

The final and present case in this area of law would be Woolin (1998). This is a well organized version of the Nedrick model. According to Woolin , Lord Lane CJ proposed that guidance should be given to the jury in clear statement of the directions provided in Nedrick with one qualification, namely substituting the word ‘infer’ to ‘may… find’, as jury would find it easier to understand. Contemplating the refined judgment definition of intention is still unclear. Both Woolin and Nedrick ascertains what intention is not, ‘namely a persons mental state which forsees a consequence to a lesser degree of probability than virtual certainty’. Nevertheless, it does not clarify what intention is.

This case raised certain issues:
(a) Despite the decision in Woolin which cleared out some of the misunderstandings of the law, some ambiguity still arises. Lord Lane CJ replaced the word ‘infer’ to ‘find’ , whereas under S8 of Criminal Justice Act 1967 the word infer is used and because of this it is presumed to be the reason for ‘infer’ being used in Nedrick (1986) in the first place. Thus, it gives rise to the question whether or not changing the words was the best in bringing about clarity in law.
(b) Lord Steyn also stated that ‘A result foreseen as virtually certainis an intended result’ . He did therefore, seem to equate virtual certainty with intention but if this was so, why did the court use the word ‘may’ rather than ‘must’?
(c) Subsequently , the Court of Appeal in Matthews did not interpret Woolin as moving away from rule of evidence to a substantive rule of law.
(d) Must a consequence be objectively virtually certain if D himself has foreseen it ? The court approved the Nedrick direction which requires objective foresight but Lord Steyn’s judgment suggested that it was not necessary, so the position remained unclear. This seems unfair to a D with expert knowledge on the risk involved.

In a recent case Matthews (2003) the Woolen test was followed .
In this case the trial judge directed the jury that they could find necessary intent for murder if each D appreciated the virtual certainty of death. Two of the Ds appealed against their murder convictions on the basis that the trial judge had misdirected the jury on intention.

The Court of Appeal stated that the trial judge had misdirected the jury when he directed the them to find that intention to kill was proved if they were satisfied that death was a virtually certain consequence of Ds action and D had anticipated that there was a virtual certainty of death. The trial judge had erred because he had treated the guidelines as a rule of law instead of treating them as a rule of evidence. If a jury finds that the defendant foresaw the virtual certainty of death or serious injury then they are entitled to find intention but they do not have to do so.

Conclusion:
It would seem that the courts have indeed attempted on several occasions to clarify the meaning of intent.
According to many academics the Woolin test was a noticeable approach in precisely defining intention. The test kept intention in narrow limits and juries found it quite easy to comprehend. However in Matthews it was affirmed that Woolin meant that foresight of consequence was not intention and that it was merely a rule of evidence. Which means juries needed to be directed when a foresight(probability) that consequence is virtually certain to result is merely evidence from which they may find that it was intended. Intention is again left undefined, presumably it can be said that courts are reluctant to clarify this ambivalence in the doctrine.
However Moloney case suggests that judges do not need to clarify the meaning of intention and juries should give the concept its everyday meaning. For, the time being though, Woolin still remains good law, and it would seem that the current definition of intention is as clear as it possible can be.