Mens Rea: Intention

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  • Created by: Hannah
  • Created on: 23-11-12 20:07

Classifying Offences- Specific Intent

These are offences which require intention only for their MR. If the prosecution are not able to establish intention, that have failed to establish the MR and D cannot be convicted of that particular offence.

SI offences

  • Murder
  • s.18 GBH with intent

To convict someone of either of these, the highest level of MR must be proven-intention. It must be shown that D intended the result (whether this is through proving direct intention or oblique intention where the jury are entitled to find that D must have indirectly intended the result if it was virtually certain to happen and D realised this) (Woollin 1998).

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Basic Offences

Basic intent offences are those for which intention or recklessness is sufficient for the MR. If the D intended to commit the offence and the prosecution can prove this, D will be convicted of the offence. However, if the prosecution cannot establish intention, but they can prove that D was reckless as to whether the offence was committed, he may now be convicted. If the prosecution can show that Ds actions were subjectively reckless, he can be convicted of the offence.

BI offences

  • Assault
  • Battery
  • ABH s.47
  • GBH s.20
  • Involuntary Manslaughter
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Mens rea is Latin for the guilty mind element of a crime and thus refers to the state of mind of D when they committed the crime. Each offence will have its own MR which will be identified in its definition provided by the common law or statute (exception: strict liability offences.) Typical mens rea words include intentionally, knowingly, recklessly or maliciously etc. In order to convict a person, the prosecution must prove D had the particular MR.

Different crimes demand proving different levels of mens rea. This can range from intention, subjective recklessness or negligence.

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The ordinary meaning of intending to do something is seeking to bring about a desired outcome, i.e. causing a planned result. This is the highest level of MR and is referred to as specific intention.

Mohan [1975]

Intention was defined as: “...a decision to bring about...the prohibited consequence, no matter whether the accused desired that consequence of his act or not.”

This makes it clear that Ds MOTIVE for doing the act is not relevant with regards their intention for committing it. Motive is not the same as intention. R v Moloney [1985]

The important point is that D decides to bring about the prohibited consequence. This can be illustrated by s.18 GBH, an offence requiring the intention to wound or cause GBH. If D did not intend this, he cannot be guilty of this offence. 

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Direct and Oblique intention

In the majority of cases, D will have DIRECT INENTION meaning he intends the specific consequence to occur. E.g. deliberately pointing a gun at Vs head and pulling the trigger. D intends to kill V.

However, there are situations where D intends one thing, but the actual consequence happens to be another thing. This is known as OBLIQUE INTENTION (indirect intention.) D does not necessarily desire an outcome but realises that it is almost (but not quite) inevitable.

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Foresight of Consequences

The main problem with proving intention is in these cases where Ds main aim was NOT what actually happened because D intended something else. BUT... if in achieving the ‘other thing’, D foresaw that he would cause the other consequence, the law is entitled to say that D obliquely intended the result.

This idea is referred to as having “FORESIGHT OF CONSEQUENCES” meaning D did not specifically desire a particular result but in acting as s/he did, realised (foresaw) that the consequence might occur.

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Oblique intention

The courts have struggled to find an appropriate test to apply in cases of oblique intention, demonstrating that it is a troubling area for both lay and legally trained personnel. The particular questions which have vexed the courts are:

1. Should the test be subjective or objective?

a. (From Ds point of view, or the reasonable man’s point of view?)

2. What degree of probability is required before it can be said that D intended the result?

a. How probable does the consequence have to be in order to convict someone?

3. Whether the degree of probability should be equal to intention or whether it is only evidence of intention from which the jury may infer intention.

a. If the consequence is extremely probable, and D realised this, must the jury convict or is it still within their right to say no and convict of a lesser (basic intent) offence?

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Foresight of Consequences Timeline- DPP v Smith [1

D had been ordered to leave his car which contained stolen goods. Instead of doing this he drove off with the police officer clinging on to his vehicle. The policeman was thrown off into the path of an oncoming vehicle and later died from his injuries. D was convicted of murder but on appeal claimed that he had not intended to kill/cause serious harm to the policeman and so had not committed murder (no MR).

HL: Upheld the conviction deciding that Ds have the necessary intention for murder if an ORDINARY REASONABLE MAN in similar circumstances would have contemplated the end result. Therefore, if the REASONABLE MAN would have foreseen death or serious injury as a consequence of Ds actions, then D should also be convicted, regardless of their own subjective view.

This OBJECTIVE APPROACH to oblique intention was severely criticised and led Parliament to pass the Criminal Justice Act of 1967 in order to reverse the common law objective approach.

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Changed the approach from OBJECTIVE to SUBJECTIVE and therefore, to convict D, a jury must be satisfied that D actually foresaw the other (oblique) result rather than what s/he should have foreseen, or what the reasonable man would have foreseen.

Whilst s.8 CJA 1967 represents a solid foundation for the law in this area, it was not without its interpretation issues. Over the 30 years that followed, judges in the CA and HL would debate the phrases “natural and probable” and “infer” in order to clarify and thus decide when it can ever be correct to convict a person for causing an end result that was not their primary aim.

The quick succession of many of these interpretation cases illustrates the problems and disagreements faced by the judiciary.

The important point to remember is that the prosecution must either prove D INTENDED OR FORESAW THE END RESULT. In murder cases, this means D must INTEND to cause death or GBH or realise that they are an extremely probable outcome of their actions. Therefore it is possible for people to ‘obliquely’ intend deaths they do not necessarily want.

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Hyam v DPP [1975]

One morning, D poured half a gallon of petrol through the letterbox of Mrs Booth’s house and ignited it using a newspaper and matches, intending to frighten her. D said that once she ignited the petrol, she realised that what she had done was extremely dangerous to anyone living in the house, but did nothing to alert the occupants, nor phoned the fire brigade. Mrs Booth and her son escaped, but her 2 daughters died.

Crown Court:"If you are satisfied that when D set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm then the prosecution will have established the necessary intent." The jury felt that D knew death/serious harm was highly probable and thus convicted her of murder. CA: Upheld Ds conviction. D appealed to the HL on the grounds that knowledge that a certain consequence was a highly probable consequence should not automatically establish intention, it should be viewed as evidence from which a jury may infer intent i.e. put to the jury as a rule of evidence to guide them. HL: Upheld Ds conviction and felt that where D foresaw the consequence, this means intention has been established and a jury must return a guilty verdict. This made the judicial direction to the jury a rule of law to compel them as opposed to a rule of evidence to guide them. Whilst the HL has accepted the subjective test, in line with s.8 CJA 1967, their application meant that having foresight of harm IS intention to cause harm. Rule of evidence not of law.

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R v Moloney [1985] HL

D and his step father were drinking at a family party. Then there was a shot. D phoned police saying he had just killed his step-father. D said that they had been seeing who was faster at loading and firing a shot gun. D loaded his gun faster; step father then said that D hadn’t “got the guts” to pull the trigger. The full blast of the shot struck V in the side of the face at a range of about six feet killing him instantly.

Crown Court: Following the Hyam direction, the jury convicted D of murder as he would have foreseen that firing a loaded gun at V would almost certainly kill/cause GBH.       HL: Allowed the appeal and substituted a conviction of UDA manslaughter. The HL had now realised that having FORESIGHT OF CONSEQUENCES IS ONLY EVIDENCE OF INTENTION, IT IS NOT INTENTION ITSELF. They confirmed that foreseeing V’s death as probable was not definitely intention, though it could be evidence of it. Therefore, the HL had confirmed this direction as being a rule of evidence, not a rule of law.                      To assist future cases, Lord Bridge devised a two part test:    1. Was death or really serious injury a ‘natural consequence’ of Ds act?      2. Did D foresee that consequence as being a natural result of their act?                                                                        The problem with the “Moloney guidelines” however is that the word “probable” has been omitted. If you refer back to s.8 CJA 1967, the phrase is “natural and PROBABLE consequence”.

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Hancock and Shankland 1986

Ds were miners on strike who tried to prevent another miner from going to work. They pushed a concrete block from a bridge onto the road along which he was being driven to work in a taxi. Ds saw the convoy approach and dropped the block onto the carriage way. It struck the windscreen and the driver died from his injuries in the subsequent crash. Ds argued that they had only wanted to stop the convoy.

Crown: The jury were directed according to the “Moloney guidelines” which required them to consider whether they believed death/serious injury was a natural consequence and did Ds realise this. The jury did not know how foreseeable must the consequence be? Nonetheless, the jury did eventually convict Ds of murder.

CA: Quashed the murder conviction and substituted a UDA manslaughter conviction feeling that the judge may have (inadvertently) misled the jury.

The HL unanimously agreed with the CA that the probability of a consequence is a factor of sufficient importance to be drawn specifically to the attention of the jury and to be explained.

There might be a 10 million:1 chance that death will result from D’s act but if it happened this would mean it was a natural consequence ….because it happened!

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R v Nedrick 1986

D had a grudge against a woman, and following threats that he would “burn her out” went to her house in the middle of the night and poured paraffin through the letter box and set it alight. The woman’s child died in the fire. "When asked why he did it, he replied, "Just to wake her up and frighten her."

Crown Court: The jury were directed before the speeches from Moloney and Hancock had been published and thus was clearly wrong to equate foresight with intention. 

CA: Quashed the conviction and substituted one of manslaughter due to the clear misdirection. They then set about trying to make sense of the mix of Moloney [1985], Hancock [1986] and Nedrick [1986] guidelines.

What the CA did was to specify the level of probability needed as being VIRTUALLY CERTAIN. Therefore, it is necessary for the consequence to be a VIRTUAL CERTAINTY and for D to have realised that before a jury would be invited to infer this as evidence of (oblique) intention. In other words, even if death or serious injury is not D’s aim or wish, the jury may infer intention if they decide that death or serious injury were virtually certain to result from what the D did and the D foresaw that that was the case. 

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R v Woollin 1996 CA

D had lost his temper when his baby had started to choke. He had shaken the baby and in a fit of frustration, had thrown his 3 month old son towards his pram 3/4 feet away. The baby hit the wall. His son sustained a fractured skull and died. D stated he had not intended or thought that he would kill the child and had not wanted the child to die. The issue therefore was whether D had the oblique intention to cause serious harm.

Crown Court: The jury were directed in accordance with Lord Lane’s Nedrick virtual certainty model direction, but towards the end of his summing up he ALSO directed the jury that if they were satisfied D there was a SUBSTANTIAL RISK....

D appealed to CA on the grounds that this additional direction could mislead a jury as substantial risk is a wider and lower standard than something being virtually certain to happen. The judge had unacceptably enlarged this probability element.

CA: Upheld Ds conviction and stated that while the words “virtually certain” were preferable, it was not a misdirection if it was made clear that the decision as to intention was for the jury to make, i.e. rule of evidence, not rule of law and the CA felt that the jury would have reached the same verdict, even properly directed.

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R V Woollin 1998 HL

HL: It was decided that the judge had confused the jury by his comments about a substantial risk and since it was impossible to know which of the two statements (substantial risk/virtual certainty) the jury had followed this must be considered a material misdirection. Consequently, a substitute conviction of manslaughter was granted.

BUT, the HL did make one change to the model direction. They decided that the word ‘FIND’ should be used rather than the word ‘INFER’.

The model direction on foresight of consequences should now be:

“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 as a result of Ds actions and that D appreciated that such was the case.”

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Section 8 CJA 1967 specifically uses the word INFER and this is presumably why it was used in the Nedrick [1986] direction. Does substituting this for ‘find’ improve the clarity of the direction to the jury or confuse matters? Commentators have questioned whether using this word implies that foresight of consequences IS intention and not merely evidence of it as it appears to be a stronger word.

This was not helped by Lord Steyn saying that the effect of the direction is that “a result foreseen as virtually certain is an intended result” thus suggesting the HL once again regarded FORESIGHT OF CONSEQUENCES THE SAME AS INTENTION, when Moloney [1985], Hancock [1986] and Nedrick [1986] had clearly stated that it was not.

In Re A (Conjoined twins) [2000], the CA (Civil division) interpreted Woollin [1998] in this incorrect manner, believing it held that foresight of consequences IS intention. (However, they were under a great deal of pressure.) Fortunately, in the criminal case R v Matthews and Alleyne [2003] the CA held that Woollin meant that foresight of consequences is not intention, merely evidence of it.

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R v Matthews and Alleyne [2003] CA

Ds dropped V 25 feet from a bridge into the middle of a deep, wide river. V had told them he could not swim; they watched him ‘doggy paddle’ toward the bank but left before seeing if he reached it safely. V drowned.

Crown Court: The jury were correctly directed that Ds intention to kill could be proved either by direct intention to kill/cause GBH, or by oblique intention if they believed Ds appreciated that Vs death/serious injury was a virtual certainty (together with the fact that Ds clearly did not intend to save V.)

However, the judge also unfortunately went on to say that if the jury believed Ds foresaw death or serious injury as virtually certain then they have found intention.

CA: Telling the jury that if they find virtual certainty means they have found intention is a RULE OF LAW, compelling the jury to ‘do as they are told’. The jury should have been directed that they were ENTITLED TO FIND INTENT. THIS IS A RULE OF EVIDENCE.

HOWEVER: The CA nonetheless UPHELD the murder convictions as they felt that given the facts of the case, the finding of intention was irresistible. 

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