Intention in English law

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In English criminal law, intention is one of the types of mens rea (Latin for "guilty mind") that, when accompanied by an actus reus (Latin for "guilty act"), constitutes a crime.

Contents

The standard definitions

Judges normally do not define intention for juries, and the weight of authority is to give it its current meaning in every day language as directed by the House of Lords in R v Moloney, [1] where can be found references to a number of definitions of intention using subjective and objective tests, and knowledge of consequences of actions or omissions. Intention is generally defined in terms of foresight of particular consequences and a desire to act or fail to act so that those consequences occur. It is distinguished from recklessness because, on a subjective basis, there is foresight but no desire to produce the consequences. But the perennial problem has always been the extent to which the court can impute sufficient desire to convert recklessness into intention. The original rule was objective. DPP v Smith [2] changed this by saying that the test was that a person was taken to foresee and intend the natural and probable consequences of his or her acts. Parliament reacted with s 8 of the Criminal Justice Act 1967 to restore the position originally at common law. In Frankland v The Queen, [3] Lord Ackner held DPP v Smith to be incorrect insofar as it required objective foresight in determining intention of murder, saying that the common law reflected s 8 of the 1967 Act.

Given that s8 of the Criminal Justice Act 1967 now entitles a jury to draw reasonable inferences from all the evidence, Wien J. said in R v Belfon [4] that:

Foresight and recklessness are evidence from which intent may be inferred but they cannot be equated...with intent.

Thus, when as in R v Moloney [5] the defendant gets into an argument with his stepfather about who could load a shotgun and fire quickest, in the argument the stepfather was shot dead and Moloney was charged with murder. Lord Bridge held there was no rule that foresight of probable consequences was equivalent to, or alternative to, the necessary intention for a crime of specific intent. (Moloney established that a person can have intention, where they did not want the result but merely foresaw it.) rather, the question of foresight of consequences was a part of the law of evidence. Lord Bridge gives the example of a man boarding a plane which he knows to be bound for Manchester. He "conclusively demonstrates" his intention to go there. It is not merely evidence from which such intention may be inferred. In the rare case where it may be necessary to direct a jury by reference to foresight of consequences, two questions arise:

(a) was death or very serious injury a natural consequence of the defendant's voluntary act? (b) did the defendant foresee that consequence as being a natural consequence of his act?

If the answer to both questions was in the affirmative, an inference could be drawn that the defendant had intended that consequence. What was a "natural" consequence?

...in the ordinary course of events a certain act will lead to a certain consequence unless something unexpected supervenes to prevent it... [and] 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.

The issue then focused on the probability that the particular harm will result from what is done. In R v Hancock & Shankland [6] Lord Scarman puts it:

..the greater the probability of a consequence the more likely it is that the consequence was foreseen and if that consequence was foreseen, the greater the probability is that it was also intended.

In R v Nedrick [7] the Court of Appeal through Lord Lane summarised the law as follows:

...if the jury are 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...Where the charge is murder and in the rare cases where 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 (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.

After Lord Steyn's judgment in R v Woollin [8] (affirmed in R v Matthews & Alleyne [2004]) it is clear that, based on R v Moloney, foresight of death or grievous bodily harm as a mere probability is insufficient. This confirms R v Nedrick subject to the substitution of "infer" for "find".

Where the charge is murder and in the rare cases where the simple direction is not enough, 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 (barring some unforeseen intervention) as a result of the defendant's action and that the defendant appreciated that such was the case.

It is clear that Lord Steyn intended that a virtual or moral certainty test should necessarily lead to a finding of intention. But by phrasing the guidelines in terms of what the jury are not entitled to do, the clarity of the direction is compromised.[ citation needed ] He may have felt that the jury are entitled to indirectly infer but not directly find intention. It would have been better expressed as a positive; i.e. "if the jury are sure that the defendant foresaw death or grievous bodily harm as a virtual certainty this equals intention". Nevertheless, it seems that "a result foreseen as virtually certain is an intended result", It is not clear that Lord Steyn intended the above meaning. Parliament required that the jury not be directed to find intention, and Lord Steyn cannot have intended to contravene Parliament's wishes. Where the jury are sure that the defendant foresaw the required level of harm to be a virtual certainty this is evidence which the jury may consider in consideration of whether the defendant personally intended this harm.

Double effect

In medical cases the doctrine of double effect can be used as a defence. As was established by Judge Devlin in the 1957 trial of Dr John Bodkin Adams, causing death through the administration of lethal drugs to a patient, if the intention is solely to alleviate pain, is not considered murder even if death is a potential or even likely outcome. [9]

Proposals for reform

In 1978, the Law Commission of England and Wales published a Report on the Mental Element in Crime and proposed a revised definition of intention (to apply to all intention-based offences):

a person should be regarded as intending a particular result of his conduct if, but only if, either he actually intends that result or he has no substantial doubt that the conduct will have that result".

In 1980 the Criminal Law Revision Committee, in its Report on Offences Against the Person, rejected a test based on knowledge of a high probability that death will result from one's actions. This was felt to be unsatisfactory because a test expressed in terms of probability was so uncertain in result. However, the Committee felt that it would be too narrow to confine intent to cases where the accused desires a certain result, preferring to include cases where the accused knows a particular result will follow. Therefore, according to the Committee a person intends a result when he:

(i)...wants the particular result to follow from his act, or
(ii)...though he may not want the result to follow, knows that in the ordinary course of things it will do so.

In 1985, The Law Commission Report on Codification of the Criminal Law proposed the following definition of murder:

A person who kills another:
(a) intending to kill; or
(b) intending to cause serious injury and being aware that he may kill; [or
(c) intending to cause fear of death or serious injury and being aware that he may kill]
is guilty of murder.

The definition of intention provides that someone "intends" a result when:

...he wants it to exist or occur, is aware that it exists or is almost certain that it exists or will exist or occur.

In 1993, the Law Commission revisited the definition of 'intention' proposing that:

[A] person acts....'intentionally' with respect to a result when:
(i) it is his purpose to cause it; or
(ii) although it is not his purpose to cause that result, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result.

In 2006 the Law Commission’s made its most recent recommendation on the meaning of intention (Murder, Manslaughter and Infanticide (Report No. 304 HC 30) at para 3.27):

"We recommend that the existing law governing the meaning of intention is codified as follows:

(1) A person should be taken to intend a result if he or she acts in order to bring it about.
(2) In cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, the jury should be directed as follows: an intention to bring about a result may be found if it is shown that the defendant thought that the result was a virtually certain consequence of his or her action"

Related Research Articles

In criminal law, mens rea is the mental state of the crime committed and the legal determination of a crime may depend upon both a mental state and actus reus, like the designation of a homicide as murder is a matter of intention to commit a crime or in some jurisdictions knowledge that one's action would cause a crime to be committed. The mitigation of culpability under some established legal doctrines may reduce the severity of some criminal charges, and so mental state is an element of most crimes, other than crimes of strict liability.

In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining criminal liability, or offenses that requires mens rea, a mental state of guilt.

Attempted murder is a crime of attempt in various jurisdictions.

Transferred intent is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible. To be held legally responsible, a court typically must demonstrate that the perpetrator had criminal intent, that is, that they knew or should have known that another would be harmed by their actions and wanted this harm to occur. For example, if a murderer intends to kill John, but accidentally kills George instead, the intent is transferred from John to George, and the killer is held to have had criminal intent.

Assault occasioning grievous bodily harm is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the Person Act 1861. The distinction between these two sections is the requirement of specific intent for section 18; the offence under section 18 is variously referred to as "wounding with intent" or "causing grievous bodily harm with intent", whereas the offence under section 20 is variously referred to as "unlawful wounding", "malicious wounding" or "inflicting grievous bodily harm".

An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a type of inchoate crime, a crime that is not fully developed. The crime of attempt has two elements, intent and some conduct toward completion of the crime.

Malice is a legal term which refers to a party's intention to do injury to another party. Malice is either expressed or implied. For example, malice is expressed when there is manifested a deliberate intention to unlawfully take away the life of a human being. Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. Malice, in a legal sense, may be inferred from the evidence and imputed to the defendant, depending on the nature of the case.

Malice aforethought is the "premeditation" or "predetermination" required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few. Insofar as the term is still in use, it has a technical meaning that has changed substantially over time.

In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than malice, but is more blameworthy than carelessness.

In criminal law, intent is a subjective state of mind that must accompany the acts of certain crimes to constitute a violation. A more formal, generally synonymous legal term is scienter: intent or knowledge of wrongdoing.

The doctrine of common purpose, common design, joint enterprise, joint criminal enterprise or parasitic accessory liability is a common law legal doctrine that imputes criminal liability to the participants in a criminal enterprise for all reasonable results from that enterprise. The common purpose doctrine was established in English law, and later adopted in other common-law jurisdictions including Scotland, Ireland, Australia, Trinidad and Tobago, the Solomon Islands, Texas, Massachusetts, the International Criminal Court, and the International Criminal Tribunal for the former Yugoslavia.

Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to cause either death or serious injury unlawfully. The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker, chapter 14 states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.

In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.

<i>R v Hancock</i> British case law

R v Hancock [1985] UKHL 9 is an English legal decision of the highest court setting out the relationship between foresight of consequences and intention in cases of murder. It refers to the case of the killing of David Wilkie. The defendants' stated intention had been to frighten a person, but another was killed. The law, as the judgement of the whole court was held to hinge on the relationship between foresight of the range of results of taking a particular action and the result of that action which must include a specific direction or legal mention of considering the probability of death or serious injury resulting, and other directions which explain the difference between the offence of manslaughter and that of murder.

R v Nedrick (1986) is an English criminal law case dealing with mens rea in murder. The case is a cornerstone as it sets down the "virtual certainty test". It applies wherever a form of indirect (oblique) intention is apparent and the charge is one of murder, or other very specific intent. The appellate court ruled, as a binding precedent, that in the law of murder there will be no case to answer where intention to offend is inferred, unless the actions of the defendant are so dangerous that death or serious injury is a virtual certainty.

<i>R v Woollin</i>

R v Woollin was a decision of the highest court of law-defining in English criminal law, in which the subject of intention in mens rea, especially for murder was examined and refined.

Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.

Non-fatal offences against the person, under English law, are generally taken to mean offences which take the form of an attack directed at another person, that do not result in the death of any person. Such offences where death occurs are considered homicide, whilst sexual offences are generally considered separately, since they differ substantially from other offences against the person in theoretical basis and composition. Non-fatal offences against the person mainly derive from the Offences against the Person Act 1861, although no definition of assault or battery is given there.

English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim's legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the "Queen's peace". The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim's death, so long as the former caused the latter.

Voluntary intoxication, where a defendant has wilfully consumed drink or drugs before committing acts which constitute the prohibited conduct of an offence, has posed a considerable problem for the English criminal law. There is a correspondence between incidence of drinking and crimes of violence, such as assaults and stabbings. Accordingly, there is a debate about the effect of voluntary intoxication on the mental element of crimes, which is often that the defendant foresaw the consequences, or that they intended them.

References

  1. ↑ [1985] AC 905
  2. ↑ (1961) AC 290
  3. ↑ [1987] AC 576
  4. ↑ (1976) 3 All ER 46
  5. ↑ (1985) 1 All ER 1025
  6. ↑ (1986) 1 ALL ER 641
  7. ↑ (1986) 83 Cr. App. R. 267
  8. ↑ (1998) 4 All ER 103 (HL)
  9. ↑ Margaret Otlowski, Voluntary Euthanasia and the Common Law, Oxford University Press, 1997, pp. 175-177

Further reading

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