Mens rea -Intention

Intention requires the highest degree of fault of all the levels of mens rea. A person who intends to commit a crime, can generally be said to be more culpable than one who acts recklessly.

Intention differs from motive or desire (Per Lord Bridge R v

Moloney [1985] AC 905 Case summary). Thus, 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 Inglis [2011] 1 WLR 1110 Case summary .

Intention can be divided into direct intent and oblique intent.

 Direct intent:

The majority of cases will be quite straight forward and involve direct intent. Direct intent can be said to exist where the defendant embarks on a course of conduct to bring about a result which in fact occurs. Eg D intends to kill his wife. To achieve that result he gets a knife from the kitchen, sharpens it and then stabs her, killing her. The conduct achieves the desired result.

Oblique intent:

Oblique intent is more complex. Oblique intent can be said to exist where the defendant embarks on a course of conduct to bring about a desired result, knowing that the consequence of his actions will also bring about another result. Eg D intends to kill his wife. He knows she is going to be on a particular aeroplane and places a bomb on that aeroplane. He knows that his actions will result in the death of the other passengers and crew of the aeroplane even though that may not be part of his desire in carrying out the action. In this situation D is no less culpable in killing the passengers and crew than in killing his wife as he knows that the deaths will happen as a result of his actions.

The courts have struggled to find an appropriate test to apply in cases of oblique intent. In particular the questions which have vexed the courts are:

1. Should the test be subjective or objective?

2. What degree of probability is required before it can be said that the defendant intended the result? 

3. Whether the degree of probability should be equal to intention or whether it is evidence of intention from which the jury may infer intention

Subjective or objective test

A subjective test is concerned with the defendant's perspective. In relation to oblique intent it would be concerned only with whether the defendant did foresee the degree of probability of the result occurring from his actions. An objective test looks at the perspective of a reasonable person. Ie Would a reasonable person have foreseen the degree of probability of the result occurring from the defendant's actions.

It is arguable, that since intention requires the highest degree of fault, it should be solely concerned with the defendant's perception. In addition, intention seems to be a concept which naturally requires a subjective inquiry. It seems somehow wrong to decide what the defendant's intention was by reference to what a reasonable person would have contemplated. However, originally an objective test was applied to decide oblique intent:

DPP v Smith [1961] AC 290   Case summary

This position was reversed by statute by s. 8 Criminal Justice Act 1967

S. 8 Proof of criminal intent

A court or jury, in determining whether a person has committed an offence,—

(a)shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b)shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances. 

The effect of s.8 was considered in: 

R v Hyam [1975] AC 55   Case summary 

The House of Lords accepted asubjective testwas applicable. However, the majority decision of the House of Lords was out of line with s.8 in that it was accepted that foresight of consequences being highly probable was sufficient to establish intent.(Lord Hailsham dissenting) a point which was taken and rectified in R v Moloney [1985] AC 905  (Case summary)   

Lord Bridge's test on oblique intent:

"First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence."

However, R v Moloney left a problem with regards to the degree of probability required. This was considered in:

R v Hancock & Shankland [1985] 3 WLR 1014    Case summary  The Guardian Article

The degree of probability was still causing problems and the cases of R v Maloney and R v Hancock and Shankland were reviewed by the Court of Appeal in R v Nedrick which reformulated the test.

R v Nedrick  [1986] 1 WLR 1025 Case summary

Lord Lane CJ:
"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."

The authority of this test was questioned in Woollin. The House of Lords largely approved of the test with some minor modifications setting the current test of oblique intent:

 
R v Woollin  [1999] AC 82   Case summary     Youtube clip

  The current test of oblique intent:

"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 actions and that the defendant appreciated that such was the case."

The decision is one for the jury to be reached upon a consideration of all the evidence.

 

Mens rea - Intention