This essay will deliberate the extent to which the meaning of the concept of 'intention' in criminal law has proven controversial through analysis of pertinent case law and academic critiques. In particular this essay will explore how the concept of 'intention' has changed in various cases in chronological order and the effect this has had. The essay will then focus on the current criticisms of the concept and proposals for reform will be discussed.
A conclusion will be made reasoning the extent of controversy that surrounds the concept of intention in both the past few decades and in the present day. In many conduct crimes whereby the defendant's conduct is required to produce a particular consequence, liability can either be based on his intention or his recklessness as to that consequence. The offences that are based on the proof of, and rely on the definition of 'intention' to find liability are most notably the more serious crimes1, with much of the debate on the meaning of 'intention' being centred around the offence of murder2.
Nonetheless, intention is not defined in any statute therefore its meaning must be derived from judicial decisions3, thus one would think that such an elementary term would have been definitively defined a long time ago; however this is not the case as we will see. Lord Steyn suggested obiter, in the House of Lords (HoL) judgement of R v Woolin4, that 'intention' did not necessarily have precisely the same meaning in every context in criminal law. There are two types of intention with regard to prohibited consequences5, direct intention and indirect (oblique) intention.
Direct intention is said to be when the accused foresaw the possibility that his act would bring about the proscribed consequence6. For example if D is enraged by his supervisor at work and intends to kill him. To achieve this he purchases a gun and shoots him, achieving the desired result. Direct intention was also defined by the Court of Appeal (CA) in Mohan7 as: 'a decision to bring about, insofar as it lies within the accused's power, no matter whether the accused desired that consequence of his act or not'.
In the more recent case of Re A8 it was expressed by Robert Walker CJ that the 'natural and ordinary' definition of intention was that of 'purpose'. It is also valuable to highlight that motive and desire in English law as a general rule is said to be disregarded9. Conversely, oblique intention is said to be when the defendant embarks on a course of conduct to bring about a desired result, knowing that the consequence will also bring about another result.
10 For example if D plans to rob a bank, to open the safe he will have to use explosives. There is a security guard within a metre of the safe door who he is aware of yet proceeds with the act and consequently the security guard is killed by the explosives. Initially, with regards to oblique intention an objective test was applied as in DPP v Smith11. The defendant was trying to get a police officer off the bonnet of his car by swerving and the officer was consequently killed by oncoming traffic.
The defendant argued he did not intent to kill the victim, the HoL stated that a person intended death or grievous bodily harm (GBH) if a reasonable person would have foreseen that death or GBH would result from the act and he was duly charged with murder. This was considered bad law and s. 8 of the Criminal Justice Act 1967 (hereafter the CJA) was passed to change it which provides that the defendant actually foresaw and intended the act, not what he or she should have foreseen or intended12.
The initial ruling in DPP v Smith was considered bad law arguably because since intention requires the highest degree of fault, it should naturally be solely concerned with the defendant's perception. S. 8 subsequently conflicted with the majority decision in Hyam v DPP13 in which the appellant set fire to a house in order to scare but the fire killed someone in the house. She appealed to the HoL on the grounds that knowledge that a certain consequence was a highly probable consequence does not establish intent to produce that result but is only evidence from which a jury may infer intent.
The conviction was upheld by a 3:2 decision accepting that foresight of consequences being highly probable was sufficient to establish intent. Lord Hailsham widely criticized dissent14 objected that knowledge or foresight is merely material which enables a jury to "draw the necessary inference as to intention". It was Lord Hailsham's dissent that was then taken and rectified in R v Maloney15 where the defendant shot his father by mistake under the influence of alcohol in a competition of who could draw their gun the quickest.
The trial judge directed on oblique intent and the jury convicted. The CA dismissed the appeal and the defendant appealed to the HoL where the defendant's conviction of murder was substituted for manslaughter. It was in this case where Lord Bridge formed the 'Golden Rule' providing that judges do not need to give juries detailed guidance on the meaning of intention, rather juries should use the normal meaning of the word. 16. Lord Bridge also clarified to judges that in most cases they could leave the definition to 'the jury's good sense'.
In relation to Hyam, the HoL held that nothing less than intention to kill or cause GBH would constitute malice aforethought and the ruling established that mere foresight of the victim's death was not intention, just evidence from which intention can be found. Lord Bridge also suggested that juries might be asked to consider two questions: was death or really serious injury a natural consequence of the defendant's act, and did the defendant foresee that this was a natural consequence of their act.
If the answer was 'yes' then the jury might infer from this evidence that death was intended. This guidance consequently proved problematic for juries as in Hancock v Shankland17. The defendants were striking miners and knew that a taxi passing under the bridge below them was carrying workers who were breaking the strike to work. A concrete block was dropped and the driver was killed.
The trial judge directed the jury suggested in Maloney and they were convicted of murder but on appeal the HoL held that this had been incorrect and that a verdict of manslaughter should be imposed. Their Lordships were in accord with Lord Bridge that foresight of consequences was not in itself intention, but they were concerned the question of whether the death was a 'natural consequence' might suggest to juries that they need not consider the degree of probability.
Lord Scarman suggested that the jury should be directed that 'the greater the probability of a consequence, the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater probability is that the consequence was also intended'. This ruling was pivotal in that it removed the ambiguous notion of 'natural consequence' and created a new scrutiny that considered the degree of probability of a consequence.