The concept of intention has proved challenging to define owing to the diversity in judicial views and the lack of definitive guidelines to identify criminal intent. There is a lack of clarity on what exactly constitutes intent and what does not. This essay alludes to six well-known past cases to illustrate the extent to which judicial courts have clearly and consistently applied intention.
Criminal law classifies intent in two ways, direct (purpose) or oblique (foresight).1The most specific meaning of intent is associated with the accused’s aim, purpose, or objective. Other definitions equate foresight of probable consequences with intention, regardless of whether the accused desired the outcome at the time of committing the unlawful act.2 For a criminal offense to be considered intentional, juries and trial judges deliberate on tendered evidence (facts) and the accused’s mental state (decisive aspect).3 The prosecution must also prove beyond reasonable doubt that the accused deliberately exposed the victim to danger.
In the DPP v Smith case, proof of intention informed the jury’s verdict. In an attempt to avoid arrest, the accused drove off with the victim clinging to the bonnet of his car. The defendant drove away erratically and eventually dislodged the police officer and threw him into oncoming traffic, killing him.4 After careful deliberations of evidence, the court found the accused guilty of murder for two reasons. First, the defendant foresaw death or serious bodily harm as a probable consequence of his voluntary actions.5 Second, an objective test performed by the court revealed that any reasonable person in the accused’s position would have foretold death or GBH as a natural outcome of the voluntary act.6 The second decision was widely
criticized, and the defendant appealed for the need for a subjective test. The murder conviction was substituted for manslaughter, but it was later reinstated as the House of Lords inferred that the test for the intention in a homicide case is an objective test.
The R v Mohan case is a classic example of direct intention. The ruling in this trial defined intention as the decision or purpose to achieve a particular consequence through unlawful acts.7 According to Mohan’s case, intent can be assessed by investigating two aspects, aforethought of maliciousness by the accused and the desire for a highly probable outcome to happen.8 This can be evaluated using a subjective test, and the highest level of culpability is achieved if the defendant fulfills both elements of intent. Mohan’s case illustrated the importance of a test of intention to distinguish recklessness from purpose.9 The court assessed how certain the accused was that his actions would result in death or GBH to his victim. A high level of certainty (subjective) was proof of intent in this murder case.
At times the court does not equate foresight of consequences with intention. As in the case of R v Moloney, the judge expressed that intention comprises mens rea for murder rather than foresight of outcomes.10 He explained that forethought of consequences is evidence for the jury to deduce intention, but it is not proof of intention. The guidelines, in this case, portrayed intention in terms of highly probable and natural consequences. The jury was to determine if death and GBH to the victim was a natural consequence of the accused’s voluntary acts and if the defendant foresaw the outcome of his criminal offense as a normal outcome.11 Affirmative responses to both questions was definitive proof that the accused intended that result. The ruling in Moloney’s case formulated a framework for trial judges to direct juries on the meaning of
intent.12 However, the law later reconsidered this model in the R v Hancock and Shankland case, which focused on probability and foresight as proof of intention.
The next case in sequence to consider the definition of intention in criminal law was the R v Nedrick case, which was somewhat similar to Hyam’s. The judge, in this case, ruled a murder conviction after effectively equating the foresight of corollaries to intent for murder. The Court of Appeal substituted the verdict for manslaughter, applying the same principle as in the R v Moloney case. The court endorsed that forethought of possible outcome is the evidence from which to infer criminal liability and not a confirmation of intent.13 The Court of Appeal judge emphasized the need to perform a virtual certainty test in cases where there is no direct intention to murder. In this test, if the consequences of the unlawful acts would inevitably lead to death or GBH to the victim and the accused acknowledged that such was the case, this would undoubtedly prove a requisite intention to kill. 14 For that reason, a virtual certainty test must prove both elements before the jury can infer an intention to kill.
The R v Woolllin case is a perfect example of how courts have applied oblique intention in convictions of murder. In a fit of rage, the accused threw his infant child to the ground and, as a result, fatally fractured his skull.15 The trial judge, using guidelines outlined in Nedrick, convicted the accused of murder, stating that the defendant deliberately exposed his victim to a substantial risk that would cause grievous injury. The Court of Appeal approved the use of virtual certainty to prove intention. However, they quashed the murder conviction asserting that the judge erred by denoting “substantial risk” as it blurred the distinction of recklessness from intention and, by extension, manslaughter and murder.
Notably, the reading of R v Woollin on virtual certainty was endorsed in the R v Matthews and Alleyne case. The appellants threw their victim over a bridge into the river, where hedrowned. All along, the defendants knew the victim could not swim.16 The trial judge sentenced the accused to a murder charge as the defendant had foreseen the grievous consequences of their voluntary acts. The Court of Appeal found the murder conviction safe. Nonetheless, they invalidated the judge’s direction to the jury with the same reasoning as the Nedrick and Moloney case.17 They emphasized foresight of probable consequences as a rule of evidence rather than a decree of law.
Proof of intention to kill varies for each murder case. However, some aspects form the foundation in helping a murder jury infer intention. They include foresight of probable consequences, virtual certainty of outcome, objective test, and subjective assessment.18 There are no sufficient judicial guidelines on the meaning of intention, and as a result, trial judges have occasionally misdirected juries on this concept, leading to wrong murder convictions. For that reason, it would be fitting if legislatures eliminated the obscurities around the concept of intention to ensure consistency and clarity when trial judges direct juries.
Bibliography
Alhajri A, “R v Woollin:, an Analysis of the Concept of Oblique Intention in the English Legal System” (2021) 9 Kilaw Journal 41.
Coffey G, “Codifying the Meaning of ‘Intention’ in the Criminal Law” (2009) 73 The Journal of Criminal Law 394.
Hossain MB and Rahi ST, “Murder: A Critical Analysis of the Common Law Definition” (2018) 09 Beijing Law Review 460.
Krebs B, “Oblique Intent, Foresight and Authorisation” (2018) 9 Journal of Law and Jurisprudence.
Milroy CM, “A Brief History of the Expert Witness” (2017) 7 Academic Forensic Pathology 516.
Ormerod DC and Laird K, Smith and Hogan’s Criminal Law: Text, Cases, and Materials on Criminal Law (Oxford University Press 2017).