To distinguish if John is guilty of murder or not we must see if he did this with the mens rea required for murder. Mens rea is the culpable state of mind which is necessary together with the Actus Reus, for a criminal offence to be committed. 1 The mens rea varies from crime to crime and there are four states of mind which separately or together can constitute the necessary mens rea for a criminal offence. Intention must be distinguished from the motive, which is irrelevant to liability. This distinction is not always so clear to establish. Intent can be direct intent or oblique intent2.
Direct intent is where the consequence is desired and the accused decides to bring it about or do his best to do so. Oblique intent can be said to exist or be capable of existing when the accused sees the consequence as certain or virtually certain as a result of his actions. 3 John may not have positively desired it but he goes ahead with his actions anyway and as a result kills Pablo. There is a distinction between intention and recklessness. If John foresees a consequence as a likely, or probable or even a possible result of his action and goes ahead with it and kills Pablo then he may have caused it recklessly.
Foresight of the consequence is not enough for intention. Even foresight of the consequence as highly likely to result is still not the same thing as intention. John did plan to release the flares into the crowd but there is no mention that he intended to kill that day. The pre-Woollin case law struggled with the degree of foresight required to establish an indirect intent to bring about a consequence as shown in the cases of Moloney (1985) 1 AC 905 and Nedrick (1986) 1 WLR 1025. The case of Woollin is the most recent considered by the House of Lords on the vexed question of what constitutes intention in murder.
Mr Woollin killed his baby son in a fit of anger, by throwing him on a hard surface. The trial judge -- as often happens in these cases -- took a broad view of intention, directing the jury that they could infer that Woollin intended to kill his son if there was a `substantial risk' of serious injury. Accordingly he was convicted of murder. The Court of Appeal upheld this conviction, arguing that the principle of R v Neddrick (1986) 1 WLR 1025 was too restrictive, and that the jury should be able to infer intention from all the facts of the case.
The House of Lords, however, converted the conviction to manslaughter, upholding the Neddrick principle. The current approach is the one laid down in Woollin (1999) 1 Ac 82 by the House of Lords, which requires the jury to ask two questions when trying to decide whether a person intended the result. We can use this principle on John: 1) Was the prohibited result in fact virtually certain to occur as a result of Johns conduct? 2) Did John foresee it as virtually certain to occur? Taking these questions into account, John did point the flares at the Swaniff fans, 'whom he hates passionately'.
These two questions only apply when there is not direct intent, after analysing the facts, one can say that John did see some sort of damage to occur and it can be said that the consequence of someone getting hurt was a virtual certainty, but the notion of intent to kill may not have been present. Section 18 OAPA 1861 states that wounding or GBH which must be inflicted 'maliciously', but the word 'maliciously' means foresight of the consequence. John must have had to have foreseen a risk and recklessly gone ahead and taken it.
Intention to cause grievous bodily harm, but not to cause death, is sufficient to establish the mens rea for murder. John, if found reckless, would be faced with manslaughter. Caldwell  C 341 has been overruled by the House of Lords in R v G and Another  UKHL 50 and now a subjective test for recklessness applies to criminal damage. In conclusion, John is not guilty of murder but guilty of manslaughter. Oblique intent can be said to exist or be capable of existing when John saw the consequence as certain or virtually certain as a result of his actions.
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