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Despite criticism of R and Moloney, in R and Hancock and Shankland, the decision
remains the same.
Discuss this assertation in light with subsequent case law.
Intention, given its normal meaning, refers to the aim or purpose of the defendant's actions and
it is purely subjective. S8 of the Criminal Justice Act provides that a jury should decide whether
the defendant intended or foresaw the result of his actions by reference to all evidence given at
the trial. However, this Act does not define intention.
There are two different concepts of intention. The defendant is deemed to have direct intention
when he intended his act to cause death or Grievous Bodily Harm (GBH). However, if the
defendant objectively or obliquely or indirectly intended his act, he had no intention or purpose to
cause death or GBH, although he may have foresaw this as a probable consequence.
The first case to deal and consider the meaning of indirect intention was Hyam v DPP. In this
case, the House of Lords formulated that death or serious injury was `highly probable' regardless
of whether she intended the consequences. Despite this, their Lordships did not provide any
definitive guidelines for trial judges on the meaning of intention.
The case of R and Moloney appeared to have narrowed the broad meaning of intention
adopted in Hyam and DPP. The defendant, in this case, killed his stepfather with a shotgun,
after he and the victim had been drinking heavily. However, he argued that he had no idea firing
the gun would injure his stepfather. However, in this case, the law on intention was still unclear.
The Hyam view suggests that if a result is foreseen as likely, then it is intended. The decisions in
Moloney were heavily criticised, in that the trial Judge, on directing the jury, stated that they
could convict the accused of murder, if they believed that he had foreseen that some bodily
harm would probably occur. Lord Bridge refused to follow the decision in Hyam, stating that it
was not foresight of consequences, but intention which constitutes the mens rea for murder. Lord
Bridge also stated that the jury should be directed to consider two questions
Was the death of the victim a natural consequence of the defendant's act?
Did the defendant foresee the consequence of his act as a natural consequence?
The House of Lords did not equate foresight of consequences with intention, therefore, while the
accused could have foreseen the consequence of his actions as being inevitable, it is not
automatically assumed that he intended those consequences. Additionally, these guidelines are
someone ambiguous, they have failed to solve the dilemma pertaining the meaning of intention
in criminal law.
Therefore, from above, it can be seen that the guidelines in Moloney were somewhat misleading
as they omitted any reference to probability and furthermore, they needed clarification.
Despite the criticism in R and Moloney, I believe the decision in R and Hancock and
Shankland remains the same. In this case, two miners, who had been on strike, pushed a
concrete slab over a bridge onto a highway, killing the driver of the taxi. They argued that they
merely intended to block the road, not to kill or cause GBH. This case overruled Moloney and the
Court of Appeal had to establish new guidelines which were clearer. However, in this case, Lord
Scarman expressed the view that intention was not to be equated with foresight of
consequences, but that intention could be established if there was evidence of foresight. Lord
Scarman, criticising the guidelines in Moloney, then went on to state that `in my judgment, the
Moloney guidelines as they stand are unsafe and misleading. They also require an explanation that the
greater the probability, the more likely it is that the consequence was foreseen and if a consequence
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With the Moloney
Guidelines no longer being used, the jury was directed to consider two questions:
How probable was the consequence which resulted from the defendant's Act?
Did the defendant foresee that consequence?
However, despite criticism of the preceding case of R and Moloney, the only change in R and
Hancock and Shankland was that the issue focused on the probability of natural consequences.
Additionally, probability is not easy to be defined in degrees.…read more