Академический Документы
Профессиональный Документы
Культура Документы
Establishing
a
defendants
intention
to
commit
a
crime
is
a
crucial
step
towards
proving
the
mens
rea
the
mental
element
of
a
crime
which,
along
with
the
actus
reus,
needs
to
be
proved
by
the
prosecution
for
a
guilty
verdict
to
be
given1.
Sometimes
it
is
obvious
from
the
context
of
the
crime
that
the
defendant
intended
for
the
specific
consequence
to
occur,
and
this
is
known
as
direct
intent.
However,
there
is
another
form
of
intention
known
as
oblique
intent
which
is
notoriously
difficult
to
prove.
This
type
of
intent
arises
where
the
actual
outcome
of
the
defendants
actions
differs
from
the
consequence
they
originally
intended.
The
courts
have
had
to
change
the
way
they
look
at
intention
in
order
to
allow
for
such
circumstances,
and
this
has
resulted
in
fierce
debate
and
discussion.
In
recent
years,
one
of
the
most
contested
ideas
surrounding
the
law
on
oblique
intention
is
whether
or
not
foresight
of
consequences
is
the
same
as
intent.
In
other
words,
if
the
defendant
foresaw
that
his
or
her
actions
were
likely
to
result
in
a
crime,
does
this
equate
to
an
intention
to
commit
that
crime?
As
I
will
explain
in
this
essay,
recent
case
law
has
shown
that
foresight
of
consequences
is
not
the
same
as
intention,
but
merely
evidence
of
it.
In
order
to
fully
understand
what
the
law
on
intent
is
now,
we
must
first
examine
how
the
law
in
this
area
has
developed.
Despite
several
attempts
by
the
Law
Commission,
no
statutory
definition
for
intention
has
ever
been
implemented.
Instead,
the
law
on
intent
has
been
built
up
and
refined
by
the
courts
over
a
number
of
different
cases.
In
this
essay,
I
will
analyse
the
contribution
each
of
these
cases
has
made
to
the
law
in
turn.
The
first
case
to
deal
with
the
issue
of
foresight
of
consequences
and
intent
was
DPP
v
Smith
(1961)2.
In
this
case,
the
victim
was
a
policeman
who
jumped
onto
the
bonnet
of
the
defendants
car
in
order
to
stop
him
escaping
with
stolen
goods.
The
defendant
quickly
drove
off
and
the
policeman
was
thrown
into
the
path
of
an
oncoming
car,
sustaining
fatal
injuries.
The
trial
judge
decided
to
impose
an
objective
test
for
establishing
intent,
and
gave
the
following
direction
to
the
jury:
If
you
are
satisfied
that
...
he
must
as
a
reasonable
man
have
contemplated
that
grievous
bodily
harm
was
likely
to
result
to
that
officer
...
and
that
such
harm
did
happen
and
the
officer
died
in
consequence,
then
the
accused
is
guilty
of
capital
murder
.3
This
direction
marked
the
introduction
of
the
first
test
for
establishing
intent.
The
court
had
ruled
that
a
defendant
could
be
said
to
have
the
necessary
intention
if
a
reasonable
man
would
have
seen
the
outcome
of
the
crime
(in
this
case
grievous
bodily
harm)
as
a
likely
consequence
of
the
actions
that
were
taken.
The
use
of
the
decisive
word
is
in
the
latter
part
of
the
direction
makes
it
clear
that,
at
this
point,
the
court
considered
that
foresight
of
consequences
was
the
same
as
intention.
1
Woolmington
v
DDP
(1935).
This
case
established
that
the
onus
is
on
the
prosecution
to
prove
beyond
all
reasonable
doubt
that
the
defendant
possesses
the
required
actus
reus
(or
guilty
act)
and
mens
rea
(or
guilty
mind).
In
the
majority
of
cases,
both
of
these
key
elements
need
to
be
proved
before
a
defendant
can
be
found
guilty.
For
more
information,
see:
http://www.justis.com/data-coverage/iclr-s3540029.aspx
2 nd
Criminal
Law
(2
edition)
Diana
Roe,
p.21
3
http://www.e-lawresources.co.uk/DPP-v-Smith.php
The
jury
followed
the
new
direction
and
found
the
defendant
guilty.
The
case
eventually
reached
the
House
of
Lords,
who
upheld
the
conviction
and
confirmed
that
the
objective
test
was
applicable
for
establishing
intention.
However,
this
decision
received
widespread
criticism
from
academics
and
even
prompted
the
Law
Commission
to
write
a
report
on
the
outcome
of
the
case,
in
which
they
[rejected]
the
notion
that
in
murder
there
is
an
irrebuttable
presumption
that
a
man
intends
the
natural
and
probable
consequences
of
his
actions4.
As
a
result
of
this
report,
the
government
introduced
Section
8
of
the
Criminal
Justice
Act
1967,
which
has
since
become
a
key
feature
of
every
case
concerning
intention
and
foresight
of
consequences.
Section
8
states
that:
This
new
piece
of
legislation
made
it
clear
that
an
objective
test
was
not
appropriate
for
deciding
a
defendants
intention.
The
courts
could
no
longer
assess
what
a
defendant
intended
or
foresaw
based
on
the
standards
of
a
reasonable
man.
A
more
subjective
test
was
needed
one
which
took
into
account
all
of
the
relevant
evidence
and
was
based
on
the
actual
defendants
intentions
or
capacity
for
foresight.
The
matter
was
next
brought
before
the
courts
in
the
case
of
Hyam
v
DPP
(1975)6.
The
facts
of
this
case
were
that
the
defendant
became
jealous
of
her
ex-lovers
fiance.
She
poured
petrol
through
this
womans
letterbox
and
ignited
it
in
an
attempt
to
scare
her,
but
two
children
were
killed
in
the
fire
that
resulted.
The
defendant
appealed
against
her
conviction
for
murder
on
the
basis
that
she
had
only
intended
to
scare
the
other
woman
and
never
meant
to
kill
anyone.
The
House
of
Lords
upheld
the
conviction
with
a
majority
verdict
of
3:27,
but
they
were
divided
on
their
reasoning
for
this
decision.
One
of
the
judges
was
of
the
opinion
that
a
defendant
had
the
necessary
intention
for
a
consequence
if
it
can
be
shown
that
they
foresaw
that
consequence
as
being
a
highly
probable
result
of
their
actions.
Another
judge
felt
that
mere
probability
would
suffice,
while
a
third
judge
believed
that
the
consequence
needed
to
be
a
substantial
risk.
Although
the
Law
Lords
disagreed
on
the
level
of
risk
the
defendant
had
to
foresee,
it
seemed
that
the
majority
of
the
judges
agreed
that
foresight
of
consequences
was
the
same
as
intention.
However,
Lord
Hailsham
did
not
agree
with
this
view.
He
felt
that
foresight
of
consequences
could
not
be
said
to
be
equal
to
intention,
and
this
opinion
was
also
adopted
by
the
judges
in
the
later
cases
of
Mohan
(1975)
and
Belfon
(1976)8.
These
were
two
non-fatal
injury
cases
in
which
it
was
decided
that
foresight
of
consequences
was
merely
evidence
which,
in
consideration
with
all
other
4
The
Law
Commission:
Imputed
Criminal
Intent,
see:
http://www.jstor.org/discover/10.2307/1092603?uid=3738032&uid=2&uid=4&sid=21101045874743
5
Criminal
Law
Statutes
2011-2012
Jonathan
Herring,
p.21
6 nd
Criminal
Law
(2
edition)
Diana
Roe,
p.22
7
Hyam
v
DPP
(1975)
http://www.oup.com/uk/orc/bin/9780199564712/haralambous_ch03.pdf
8 nd
Criminal
Law
(2
edition)
Diana
Roe,
p.22
aspects
of
the
case,
the
jury
could
use
to
decide
whether
or
not
the
defendant
intended
to
commit
the
crime9.
Not
only
was
the
judgement
in
the
Hyam
case
confusing
due
to
the
divided
opinions
of
the
judges,
it
was
also
highly
controversial
as
it
appeared
to
blur
the
boundaries
of
recklessness
and
intention.
Recklessness
is
a
much
lower
form
of
mens
rea
than
intention
which
is
decided
on
the
probability
of
a
risk
occurring10.
Lawyers
and
academics
were
not
happy
with
the
idea
that
intention
to
commit
murder,
one
of
the
most
serious
offences,
could
be
proved
by
similar
standards
to
that
of
recklessness.
If
intention
to
commit
murder
could
be
based
on
the
defendants
ability
to
foresee
the
possibility
of
a
consequence,
then
the
degree
of
risk
to
be
foreseen
needed
to
be
clarified
in
order
to
separate
intention
from
recklessness.
This
was
the
issue
that
was
considered
in
the
case
of
Moloney
(1985)11.
The
defendant
in
this
case
had
been
drinking
with
the
victim,
who
was
his
stepfather.
An
argument
eventually
broke
out
between
them
over
who
could
load
a
shotgun
the
fastest.
The
defendant
had
been
the
first
to
load
the
gun
and
shot
his
stepfather.
He
later
claimed
that
his
stepfather
had
dared
him
to
pull
the
trigger
and
that
he
had
not
intended
to
kill
him.
The
trial
judge
directed
the
jury
with
the
following
guidelines
from
the
Hyam
case:
A
man
intends
the
consequences
of
his
voluntary
act
a)
when
he
desires
it
to
happen,
whether
or
not
he
foresees
that
it
will
probably
happen
and
b)
when
he
foresees
that
it
will
probably
happen
whether
he
desires
it
or
not.12
From
this,
the
jury
would
probably
deduce
that
a
fairly
low
level
of
foresight
was
required
and
that
the
foresight
was
definite
proof
of
intention.
However,
the
cases
of
Mohan
and
Belfon
had
established
that
foresight
was
merely
evidence
of
intention.
The
matter
eventually
reached
the
House
of
Lords,
who
overturned
the
verdict
and
agreed
that
the
interpretation
of
the
law
in
the
cases
of
Mohan
and
Belfon
was
the
right
one.
Lord
Bridge
illustrated
this
point
in
his
judgement,
stating
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
is
meant
by
intent,
and
leave
it
to
the
jurys
good
sense
to
decide
whether
the
accused
acted
with
the
necessary
intent.13
This
part
of
the
judgement
was
accepted
in
later
cases
and
has
never
been
expressly
overruled,
so
it
is
still
part
of
the
law
on
intention
today.
However,
the
latter
part
of
Lord
Bridges
judgment
has
caused
some
problems.
Lord
Bridge
provided
two
questions
which
he
suggested
should
be
put
to
the
jury
in
situations
where
it
was
necessary
to
provide
a
direction
on
foresight
of
consequences.
These
questions
were:
9
The
case
of
Mohan
(1975)
also
made
another
significant
contribution
to
the
law
on
intention.
This
case
made
it
clear
that
a
defendants
motive
was
irrelevant
when
deciding
whether
or
not
they
intended
to
commit
the
crime.
10
Hyam
v
DPP
(1975):
http://www.oup.com/uk/orc/bin/9780199564712/haralambous_ch03.pdf
11 nd
Criminal
Law
(2
edition)
Diana
Roe,
p.22
12
Hyam
case
directions:
http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf
13
Moloney
(1985)
Lord
Bridges
judgement:
http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf
First,
was
death
or
serious
injury
in
a
murder
case
(or
whatever
relevant
consequence
must
be
proved
to
have
been
intended
in
any
other
case)
a
natural
consequence
of
the
defendants
voluntary
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
that
consequence.14
These
questions
eventually
became
known
as
the
Moloney
guidelines,
and
although
they
seemed
to
provide
a
reasonable
answer
to
the
issues
surrounding
foresight
of
consequences,
they
were
far
from
perfect.
Earlier
in
his
judgment,
Lord
Bridge
had
attempted
to
distinguish
intention
from
recklessness
by
stating
that
the
degree
of
probability
to
be
foreseen
for
intention
must
be
little
short
of
overwhelming15.
However,
the
actual
guidelines
themselves
make
no
reference
to
probability
at
all.
Referring
back
to
s.8
of
the
Criminal
Justice
At
1967,
which
uses
the
phrase
natural
and
probable
consequence,
it
is
clear
that
these
guidelines
were
not
adequate
as
they
only
refer
to
a
natural
consequence.
The
problem
was
eventually
resolved
in
the
case
of
Hancock
and
Shankland
(1986)16.
In
this
case
the
defendants
were
two
miners
who
were
on
strike.
They
had
tried
to
stop
a
third
miner
from
going
to
work
by
dropping
a
concrete
block
in
front
of
the
taxi
which
was
driving
him
there.
The
concrete
block
bounced
off
the
road
and
through
the
windscreen
of
the
taxi,
killing
the
driver.
The
two
men
were
initially
convicted
of
murder
under
the
Moloney
guidelines,
but
their
conviction
was
quashed
on
appeal.
Lord
Scarman
explained
the
reasoning
for
this
in
his
judgment:
...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
if
that
consequence
was
foreseen
the
greater
the
probability
is
that
that
consequence
was
also
intended.17
This
case,
therefore,
had
decided
that
the
Moloney
guidelines
should
no
longer
be
used,
but
the
Law
Lords
failed
to
put
any
other
guidelines
in
their
place.
However,
the
court
did
take
the
opportunity
to
reiterate
the
fact
that
although
foresight
of
consequences
if
evidence
of
intention,
it
does
not
constitute
intention
in
itself.
The
question
arose
again
in
the
case
of
Nedrick
(1986)18.
The
facts
of
this
case
are
very
similar
to
the
Hyam
case
the
defendant
poured
paraffin
through
a
womans
letterbox
and
set
it
alight,
and
a
child
died
in
the
fire.
In
the
first
instance
trial
the
defendant
was
convicted
of
murder,
but
he
was
later
acquitted
of
this
charge
and
was
found
guilty
of
manslaughter
instead.
The
judges
in
the
Court
of
Appeal
felt
that
the
guidelines
from
Moloney
(1985)
and
Hancock
and
Shankland
(1986)
were
not
clear
enough.
They
considered
the
judgement
of
Lord
Bridge
in
the
Moloney
case,
who
had
stated
that
the
probability
of
the
consequences
taken
to
have
been
foreseen
must
be
little
short
of
overwhelming
before
it
will
suffice
to
establish
the
necessary
intent,
and
decided
that
this
very
high
14
Moloney
(1985)
Lord
Bridges
judgement
:
http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf
15
Moloney
(1985)
Lord
Bridges
judgement
:
http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf
16 nd
Criminal
Law
(2
edition)
Diana
Roe,
p.22
17 rd
OCR
Criminal
Law
for
A2
(3
edition)
-
Jacqueline
Martin,
p.23
18 nd
Criminal
Law
(2
edition)
Diana
Roe,
p.23
degree
of
foresight
should
be
included
in
the
guidelines
themselves.
In
his
judgement,
Lord
Lane
created
new
guidelines
for
foresight
of
consequences.
He
suggested
that
juries
should
be
told
that:
if
they
are
satisfied
that
at
the
material
time
the
defendant
recognised
that
death
or
serious
injury
would
be
virtually
certain,
(barring
some
unforeseen
intervention)
to
result
from
his
voluntary
act,
then
it
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.19
In
other
words,
juries
should
now
ask
themselves
whether
or
not
the
consequence
was
a
virtual
certainty
of
the
defendants
actions,
and
if
so,
did
the
defendant
foresee
this?
If
they
could
answer
positively
to
both
questions,
then
there
was
sufficient
evidence
for
them
to
infer
that
the
defendant
intended
to
commit
the
crime,
but
they
were
not
bound
in
law
to
do
so.
These
guidelines
remained
the
law
until
the
case
of
Woollin
(1998)20.
In
this
case,
the
defendant
had
thrown
his
three-month
old
baby
towards
his
pram
which
was
approximately
four
feet
away.
The
baby
missed
the
pram
and
suffered
fatal
head
injuries.
The
court
applied
the
Nedrick
guidelines
and
the
defendant
was
found
guilty.
However,
the
trial
judge
later
told
the
jury
that
they
could
infer
intention
if
the
defendant
appreciated
that
there
was
a
substantial
risk
of
his
actions
causing
death
or
serious
injury.
This
standard
is
obviously
much
lower
than
the
one
set
by
the
Nedrick
guidelines,
and
so
the
jury
may
have
been
confused
as
to
which
one
to
apply.
For
this
reason
the
case
was
appealed
to
the
House
of
Lords,
who
quashed
the
conviction.
The
Law
Lords
also
felt
that
the
Nedrick
guidelines
were
not
as
helpful
as
they
could
be.
They
held
that
the
word
find
should
be
substituted
for
the
word
infer
in
order
to
make
the
questions
easier
for
the
jury
to
understand.
This
meant
that
the
model
direction
now
reads:
...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
defendants
actions
and
that
the
defendant
appreciated
that
such
was
the
case.21
This
is
currently
the
accepted
definition
of
oblique
intention
in
English
law.
In
many
respects
it
is
a
vast
improvement
on
all
of
the
previous
directions;
it
provides
juries
with
simple
instructions
about
what
they
can
and
cannot
do,
and
also
appears
to
have
drawn
a
clear
distinction
between
intention
and
recklessness
by
expressing
a
requirement
for
virtual
certainty
as
opposed
to
high
probability
or
substantial
risk.
However,
there
are
still
some
problems
with
the
Woollin
directions
which
leave
plenty
of
room
for
confusion.
These
problems
have
mainly
been
caused
by
the
substitution
of
the
word
find
for
the
word
infer.
At
first
glance,
the
change
of
word
seems
to
imply
that
juries
have
lost
their
discretion
when
deciding
oblique
intent
and
should
consider
foresight
of
consequences
to
be
equal
to
intent.
However,
the
word
entitled
has
been
kept
in
the
direction,
which
could
suggest
that
juries
still
retain
some
discretion
in
the
matter,
even
when
they
are
convinced
of
the
fact
that
the
defendant
foresaw
the
consequence
as
being
a
virtual
certainty
of
his
actions.
These
contradictions
were
summed
up
by
A
P
Simester
and
Stephen
Shute
in
the
March
2000
edition
of
the
Criminal
Law
Review
when
they
stated
that:
19 nd
Criminal
Law
(2
edition)
Diana
Roe,
p.23
20 nd
Criminal
Law
(2
edition)
Diana
Roe,
p.23
21 rd
OCR
Criminal
Law
for
A2
(3
edition)
-
Jacqueline
Martin,
p.23
The
articulation
of
find
substituted
by
their
Lordships
in
Woollin
suggests
that
the
link
between
virtual
certainty
and
intention
is
definitional;
on
the
other
hand,
what
remains
of
the
model
definition
is
expressed
in
negative
terms....which
suggests
that
the
jury
can
legitimately
refuse
to
find
intention
even
where
foresight
of
virtual
certainty
is
proved22.
It
is
therefore
clear
to
see
why
the
Woollin
directions
have
caused
so
many
problems
in
later
cases
and
have
led
to
conflicting
decisions
in
the
Court
of
Appeal.
The
first
case
of
this
kind
to
be
heard
following
the
Woollin
directions
was
the
civil
case
of
Re
A
(2000)23.
In
this
case,
doctors
asked
the
court
whether
it
would
be
legal
to
separate
conjoined
twins
when
they
foresaw
that
one
of
the
twins
would
die.
The
Court
of
Appeal
held
that
the
Woollin
guidelines
laid
down
the
rule
that
foresight
of
consequences
was
the
same
as
intention.
However,
as
this
was
a
civil
case
the
verdict
was
not
binding
on
the
criminal
division
of
the
Court
of
Appeal.
The
matter
of
criminal
intention
was
finally
resolved
in
the
case
of
Matthews
and
Alleyne
(2003)24,
in
which
the
defendants
had
dropped
their
victim
into
a
deep
river,
even
though
they
knew
he
could
not
swim.
They
watched
the
victim
struggle
towards
the
riverbank
without
trying
to
help
him
and
left
before
he
could
reach
safety,
leaving
him
to
drown.
The
original
trial
judge
had
directed
the
jury
that
foresight
of
consequences
was
the
same
as
intent,
but
judges
in
the
Court
of
Appeal
ruled
that
this
was
the
wrong
interpretation
of
the
Woollin
guidelines.
They
decided
not
to
apply
the
same
reasoning
they
had
used
in
Re
A
(2000)
and
ruled
once
and
for
all
that
foresight
of
consequences
is
not
the
same
as
intent;
it
is
a
rule
of
evidence
from
which
the
jury
can
infer
intention
if
they
see
fit.
Conclusion:
There
have
been
many
changes
to
the
law
on
criminal
intention
within
a
relatively
short
space
of
time,
which
makes
this
area
of
law
particularly
difficult
to
understand.
However,
careful
exploration
of
the
relevant
case
law
has
shown
that
foresight
of
consequences
is
not
the
same
as
intent.
Despite
the
problematic
directions
and
conflicting
judgments
on
the
issue,
this
conclusion
is
actually
fairly
easy
to
justify.
The
Criminal
Justice
Act
1967
clearly
states
that
juries
are
not
bound
in
law
to
infer
intention
on
the
basis
of
foresight
alone.
Furthermore,
the
first
part
of
Lord
Bridges
judgment
in
Moloney
(1985),
which
has
never
been
overruled,
stated
that
foresight
of
consequences
is
only
evidence
of
intention
and
not
intention
in
itself.
The
decision
in
Matthews
and
Alleyne
(2003)
is
hardly
surprising
given
that
is
supported
by
both
an
Act
of
Parliament
and
a
judgment
from
the
House
of
Lords.
However,
the
law
is
by
no
means
set
in
stone.
Since
the
Woollin
directions,
the
Law
Commission
has
already
proposed
several
new
definitions
for
intention
to
Parliament,
and
if
one
of
these
is
enacted
then
the
law
would
have
to
change
completely
to
accommodate
it.
So
the
law
on
intention
is
reasonably
clear
for
the
time
being,
but
as
this
is
a
highly
complex
topic
with
such
huge
implications
on
criminal
justice,
it
is
likely
that
there
will
be
further
debate
on
this
matter
in
the
future.
22 nd
Criminal
Law
(2
edition)
Diana
Roe,
p.25
23 rd
OCR
Criminal
Law
for
A2
(3
edition)
Jacqueline
Martin,
p.24
24 rd
OCR
Criminal
Law
for
A2
(3
edition)
Jacqueline
Martin,
p.24
Bibliography:
http://www.justis.com/data-coverage/iclr-s3540029.aspx
http://www.e-lawresources.co.uk/DPP-v-Smith.php
http://www.jstor.org/discover/10.2307/1092603?uid=3738032&uid=2&uid=4&sid=2110104587474
3
http://www.lawteacher.net/criminal-law/lecture-notes/mens-rea-lecture.php
http://www.oup.com/uk/orc/bin/9780199564712/haralambous_ch03.pdf
http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf