The true definition of intention is not very clear, as there are different definitions by different courts. The term ‘intention’ in criminal law has been defined as direct intention whereby a consequence is intended and desired by the defendant, and indirect (oblique) intentionwhereby the defendant can foresee a virtual certainty. Many seriouscrimes require the proof of intention or recklessness on the part of defendant, and in criminal proceedings, the court or jury must decide whether the accused has the intention or the ability to foresee the result of his actions by reference to all circumstances of the case.
Thus, ‘intention’ can be classified as particular, general and transferred intention. They are not bound by law to infer intention merely because the result is the natural and probable result of the action taken (Criminal Justice Act 1967). The mensrea of murder is malice aforethought, which the courts define as intention to kill or cause grievous bodily harm (GBH). Sir Edward Coke stated : “… the unlawful killing of a reasonable person in being and under the King’s peace with malice aforethought, express or implied. ” Regarding the meaning of “intention”, Steane1 is the leading authority against the view that intention includes foresight.
As per Lord Goddard CJ held, “the appellant also asserted…that he never had the slightest idea or intention of assisting the enemy and what he did was done to save his wife and children…. ” It is for the prosecution to prove criminal intent and the jury is entitled to presume intention if they think that the act was carried out as free will of the accused, they would not be entitled to presume it if the circumstances showed that the act was done in subjection to the power of the enemy or if it was as equally consistent with an innocent intent as with a criminal intent, for example a desire to save his family from a concentration camp2.
The definition of intention has been defined by the House of Lords in Moloney3which indicated the difference between motive and desire. As Lord Bridge of Harwich gave the guidance: “…[W]here a crime of specific intent was under consideration, including Hyam4 itself, they suggest to me that the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent ….
”5Thus, a person who kills a loved one dying from a terminal illness, in order to relieve pain and suffering, may well act out of good motives. Nevertheless, this does not prevent them having the necessary intention to kill see R v Inglis6. Afterwards, in Woollin7, it was established that intention can only be found when the defendant had foreseen the consequences as a virtually certain result of conduct.
Thus, a defendant cannot be found guilty of murder unless it can be proved that his action was with the intention to kill or to cause GBH. In cases where a direction of intent is necessary, the jury should be instructed to uncover the extent to which the particular defendant foresaw causing death or GBH and only where there was evidence that the defendant foresaw death or GBH resulting from his actions, could the jury draw the conclusion that the defendant intended the consequences.
This point was isolated by Lord Lane in Nedrick 8, “If the jury are satisfied that at the material time the defendant recognised that death or GBH would be virtually certain to result from his voluntary act, then that is a fact from which they may find it… “, the jury should be directed that they are not entitled to infer 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 defendant’s actions and that the defendant appreciated that such was the case.
” Section 8 of the Criminal Justice Act 1967 states that intention is a subjective topic. This is an uncertain area because we do not have intention metres to ‘plug into people’s brains. ’ As Clarkson and Keating say it is important to use a subjective test rather than an objective one, as establishing intention requires for the defendant’s perspective to be examined. The Court of Appeal can sometimes pay lip-service to s 8 and quash convictions because the jury were not clearly directed that the test of intention is subjective9.
Nevertheless, originally an objective test was used to decide oblique intention in DPP v Smith10 which widened the MR of murder. The House of Lords held that the accused was guilty of murder for two reasons. Firstly, because death or grievous bodily harm was foreseen as a likely result of the accused’s unlawful act. Secondly, the accused was deemed to have foreseen the risk which a reasonable person in the position of the accused would have foreseen.
The second ground for the House of Lords’ decision had been widely criticised as it introduced an objective element in the meaning of intention. 11TheVickers12 has modified by DPP v Smith that the mental element in murder requires proof of an intention to kill or cause GBH, where the probability of foreseeing can be defined as exceeding a certain degree, is equivalent or alternative to the necessary intention. The Court of Appeal held that a defendant can be convicted of murder if it is established that he had intended to kill or create grievous bodily harm.
In considering the construction of s1(1) [Homicide Act 1957], it can be said that an intention to cause GBH at least evidenced a willingness to accept a substantial risk that the victim might die as so it was held the intention to inflict GBH was sufficient to impose liability for murder. The degree of foreseeing the result, except not being wanted, would be the evidence which intention might be inferred but it has affected the case of Hyam13, it was the first case to consider in indirect intention.
The direction ofHyam from which a jury might deduce that a low of foresight was the equivalent of intention and not the matter of evidence, “a man intends the consequences of his voluntary act (a) when he desires it to happen, whether or not he foresees that it probably will happen and (b) when he foresees that it will probably happen whether he desires it will not. ” Thus, the accused is guilty of murder if the facts established that defendant knew that it was ‘highly probable’ that defendant’s act would cause death or serious bodily harm.
The accused was convicted of murder and the House of Lords upheld her conviction stating that murder is committed by a person who has the intention to cause death or serious bodily harm. The majority decision provided diverse reasons for upholding the conviction which are ‘foresight of probability’, ‘foresight of high probability’ and ‘foresight of a serious risk’ of death or serious injury.
The views of Lord Diplock and Lord Kilbrandon on the basis that intention to cause serious bodily harm was insuf?cient, instead suggesting that there must have been an intention to perform the act which was likely to cause death. The diversity of judicial opinions pertaining to the meaning of intention rendered the ruling in Hyam unsatisfactory as it resulted in a considerable state of confusion and uncertainty. Also, Lord Hailsham said that knowledge and foresight was at the best material which entitled or compelled a jury to draw the necessary inference as to intention. The House of Lords in Moloney did not equate foresight of consequences with intention.
Thus, while the accused could have foreseen a consequence of his actions as being inevitable, it did not automatically follow that he intended those consequences. Lord Bridge said that a ‘moral certainty’ was necessary or in other words a probability which was ‘little short of overwhelming’ of an act that ‘will lead to a certain event unless something unexpected supervenes to prevent it’. However, when summing up the guidelines for trial judges, he referred to the term ‘natural and probable consequences’, in other words, a consequence that is virtually certain to follow.
While Lord Bridge was referring to the ‘natural consequence’ test as implicitly including a ‘high probability’ test, these guidelines were somewhat ambiguous and had failed to adequately resolve the dilemma pertaining to the meaning of intention in the criminal law. However, elsewhere in the judgment it was stated that the prohibited consequence should be ‘the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suf? ce to establish the necessary intent’ or ‘virtually certain’.
The ruling in Moloney appeared to have formulated a model direction for trial judges when instructing juries on the meaning of intention. A year after the Moloney decision, the meaning of intention was again considered by the House of Lords in R v Hancock and Shankland14, where the issue focused on the probability of natural consequences that the particular harm would result from the accused’s unlawful acts. The House of Lords confirmed the decision made by the Court of Appeal to reduce the two men’s convictions from murder to manslaughter.
Thus, their Lordships emphasised that moral certainty or over-whelming probability was necessary in order to constitute intention. Lord Scarman was of the view that intention should not be equated with foresight of consequences, but that intention could be established if there was evidence of foresight thus he stated that the Moloney guidelines were unsafe and misleading, although he offered no alternative. Much was said about probability of consequences occurring and the importance of explaining this to the jury, but no further guidelines were made.
The degree of probability was still causing problems and the cases ofMaloney and R v Hancock and Shankland were reviewed by the Court of Appeal in Nedrick15 which reformulated the test. The authority of this test was questioned in Woollin,16whereby the House of Lords largely approved of the test with some prior modifications setting the current test of oblique intent. In Nedrick, the defendant’s aim was to burn down the house in order to frighten its occupant but, in so doing, causing death was a likely result. As Rix L. J emphasised , “… [W]e do not regard Woollin as yet reaching or laying down a substantive rule of law.
On the contrary, it is clear from the discussion in Woollin as a whole that Nedrickwas derived from existing law, at the time ending in Moloney and Hancock, the critical direction in Nedrick was approved, subject to the change of word. ”On the other hand, if the jury is satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that 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.
In Hancock, 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 not. As the boundaries between murder and manslaughter are unclear, this freedom is essential. However, in Nedrick, 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. Nevertheless, the jury found that Woollin had the intention to kill his son or create GBH so they rejected a defence of provocation and convicted him of murder. Furthermore, Nedrick direction” was written as, “Where the charge is murder and the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendants actions, and that the defendant appreciated that such was the case”.
In R v Scalley17, foresight of the virtual certainty or cause GBH is not intention but merely evidence to the jury to infer intention. In majority of cases, especially murder cases, what the defendant foresaw was not going to be “a serious moral odds with what he intended to do. ” Such defendants are usually engaged in reprehensible conduct such as that in R v Matthews and Alleyne18where it was stated that on the facts the inference was “irresistible” and that if the defendants appreciated the virtual certainty of death, it would be impossible to the jury to find the requisite intention of killing.
In all other cases where the offence being prosecuted stipulates intention as the mensrea, the jury should be instructed to consider the meaning of intention in the ordinary sense based on the facts tendered in evidence19. The definition of intention was too wide and over-inclusive as in all cases, ‘intention’ have different and pleanty of meaning but there is no a accurate definition. However, the narrower and under-inclusive definition cannot be satisfactorily defined 20. The Law Commission published that the law should adopt a definition of intention as a matter of law21.
If the purpose of defendant’s actions was not cause the victim’s death or GBH, but a virtually certain consequences, the defendant could be convicted as recklessness. The similar meaning of oblique intention was indicated by James LJ in Mohan22, “a decision to bring about, in so far as it lies the Accused’ s power, no matter whether the accused desired that consequences of his act or not. ” Thus, the distinction between the definition of intention and recklessness have been inconsistent and unclear over the years. However, the law has appeared more settled since the House of Lords’ decisions in Woollin and R v G23.
As in my opinion, the definition of ‘intention’ should not limit in an area, as the different cases have different scenario, only the most suitable definition can be used to avoid injustice. “whenever the definition of the crime requires that some consequence be brought about by the D’s conduct, it must be proved, on a charge of attempting to commit that crime or intended the consequences; and this is so even if, on a charge of committing the complete crime, recklessness as to that consequence- or even some lesser degree of mens rea would suffice.
”24 A person commits murder when he kills another with the necessary intent. Intention to kill or cause serious bodily harm is required. Foresight of consequences may be used, like evidence, by the jury to infer intent. In UK, the meaning of intention in the criminal law, which predominantly concerns the offence of murder, has a relatively narrow de? nition,certain killings which are reckless might be equally as heinous as intentional killings. While the legal meaning of the concept of intention remains uncertain.
The Report includes a Draft Homicide Bill to place this proposed definition on a statutory footing, which if enacted would repeal s. 4 of the Criminal Justice Act 1964. An object or purpose (purpose intent) or foresight of virtually certain consequences of the unlawful act in the case of result crimes(foresight intent). A clear concept of intention in the construction of criminal liability has not been distilled from the jurisprudence of the superior courts and the criminal law has not reached the stage when foresight of virtually certain consequences and intention are equated.
Where indirect oroblique intention is at issue the jury is entitled to? nd intention based on foresight of virtually certain consequences of the unlawful act. However, these concepts are not the same, and furthermore they must be clearly distinguished from recklessness which pertains to the accused’s disregard of possible consequences. Intention and foresight of consequences are distinguished from the concept of recklessness on the basis of advertence and inadvertence as to the probable result of the accused’ s criminal transgression.
While some statutory offences are established by proving that the accused acted recklessly, intent cannot be proved by recklessness which is a lesser degree of criminal responsibility. The legal definition of intention is still not watertightby statute and judicial guidelines thus far lack a suf? cient measure of clarity.
Therefore, issues of incompatibility with European Convention on Human Rights standards may arise with regard to the presumption of innocence. It is now opportune for legislatures to eliminate the problem of inef?cient judicial guidelines and the general lack of clarity, obscurity and uncertainty that still exists as regards the meaning of the concept of intention in the criminal law. A clearly dened statutory provision would ensure a sufficient measure of consistency of approach in themanner that trial judges instruct juries. (2905 words) Bibliography Books Allen J. M. (2004) “Elliott & Wood’s Cases and Materials on Criminal Law” 8th ed. Sweet & Maxwell Roe D. (2002) “Criminal Law” 2nd ed. Hodder & Stoughton Storey T. & Lidbury A. (2004) “Criminal Law” 3rd ed. Willan Publishing J.
Loveless, Criminal Law Text, Cases and Materials (Oxford, 2rd edition) Clarkson, Keating and Cunningham, Criminal Law Text and Materials (Thomas Sweet and Maxwell) Glanville Williams, Text of Criminal Law (2nd edition, 1983) Smith and Hogan, Criminal Law (Oxford, 3rd edition, 1973) Table of Cases DPP v. Smith (1961) A. C 290, HL Hyam v. DPP (1975) A. C 55, HL R v Moloney (1985) A. C. 905, HL R v. Hancock and Shankland (1986) A. C. 455, HL R v. Mohan (1975) CA R v. Nedrick (1986) CA R v. Steane (1945) K. B. 997, CCA R v. Woollin (1998) A. C. 82, HL R v Inglis  1 WLR 1110 Court of Appeal Ingman  Crim LR 457.
R v Vickers  2 QB 664 R v Scalley  Crim LR 504. R v Matthews and Alleyne  EWCA Crim 192, 2 Cr App R 30. R v Allen EWCA Crim 1344 R v Phillips EWCA Crim 112 R v. Mohan  QB 1 R v G  UKHL 50 Table of Statute Criminal Justice Act (1967) Law Commission, No 304, Murder, Manslaughter and Infanticide . Electronic Sources R v Moloney  1 All ER 1025 House of Lords. http://www. e-lawresources. co. uk/R-v-Moloney. php accessed 30 March 2013 R v Inglis  1 WLR 1110 Court of Appeal. http://www. judiciary. gov. uk/media/judgments/2010/r-v-inglis accessed 31 March 2013.