“Foresight of consequences is not the same as intent”. Discuss. Written by Georgia Beatty – Sept 2012. Establishing a defendant’s intention to commit a crime is a crucial step towards proving the mens rea – the “mental element” of a crime which, along with the actus reus, needs to be proved by the prosecution for a guilty verdict to be given1. Sometimes it is obvious from the context of the crime that the defendant intended for the specific consequence to occur, and this is known as direct intent. However, there is another form of intention known as “oblique intent” which is notoriously difficult to prove. This type of intent arises where the actual outcome of the defendant’s actions differs from the consequence they originally intended. The courts have had to change the way they look at “intention” in order to allow for such circumstances, and this has resulted in fierce debate and discussion. In recent years, one of the most contested ideas surrounding the law on oblique intention is whether or not foresight of consequences is the same as intent. In other words, if the defendant foresaw that his or her actions were likely to result in a crime, does this equate to an intention to commit that crime? As I will explain in this essay, recent case law has shown that foresight of consequences is not the same as intention, but merely evidence of it. In order to fully understand what the law on intent is now, we must first examine how the law in this area has developed. Despite several attempts by the Law Commission, no statutory definition for “intention” has ever been implemented. Instead, the law on intent has been built up and refined by the courts over a number of different cases. In this essay, I will analyse the contribution each of these cases has made to the law in turn. DPP v Smith (1961): The first case to deal with the issue of foresight of consequences and intent was DPP v Smith (1961)2. In this case, the victim was a policeman who jumped onto the bonnet of the defendant’s car in order to stop him escaping with stolen goods. The defendant quickly drove off and the policeman was thrown into the path of an oncoming car, sustaining fatal injuries. The trial judge decided to impose an objective test for establishing intent, and gave the following direction to the jury: ‘If you are satisfied that ... he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer ... and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder .”3 This direction marked the introduction of the first test for establishing intent. The court had ruled that a defendant could be said to have the necessary intention if a “reasonable man” would have seen the outcome of the crime (in this case “grievous bodily harm”) as a likely consequence of the actions that were taken. The use of the decisive word “is” in the latter part of the direction makes it clear that, at this point, the court considered that foresight of consequences was the same as intention. 1
Woolmington v DDP (1935). This case established that the onus is on the prosecution to prove “beyond all reasonable doubt” that the defendant possesses the required actus reus (or “guilty act”) and mens rea (or “guilty mind”). In the majority of cases, both of these key elements need to be proved before a defendant can be found guilty. For more information, see: http://www.justis.com/data-­‐coverage/iclr-­‐s3540029.aspx 2
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http://www.e-­‐lawresources.co.uk/DPP-­‐v-­‐Smith.php The jury followed the new direction and found the defendant guilty. The case eventually reached the House of Lords, who upheld the conviction and confirmed that the objective test was applicable for establishing intention. However, this decision received widespread criticism from academics and even prompted the Law Commission to write a report on the outcome of the case, in which they “[rejected] the notion that in murder there is an irrebuttable presumption that a man intends the natural and probable consequences of his actions”4. As a result of this report, the government introduced Section 8 of the Criminal Justice Act 1967, which has since become a key feature of every case concerning intention and foresight of consequences. Section 8 states that: “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.”5 This new piece of legislation made it clear that an objective test was not appropriate for deciding a defendant’s intention. The courts could no longer assess what a defendant intended or foresaw based on the standards of “a reasonable man”. A more subjective test was needed – one which took into account all of the relevant evidence and was based on the actual defendant’s intentions or capacity for foresight. Hyam (1975), Mohan (1975) and Belfon (1976): The matter was next brought before the courts in the case of Hyam v DPP (1975)6. The facts of this case were that the defendant became jealous of her ex-­‐lover’s fiancée. She poured petrol through this woman’s letterbox and ignited it in an attempt to scare her, but two children were killed in the fire that resulted. The defendant appealed against her conviction for murder on the basis that she had only intended to scare the other woman and never meant to kill anyone. The House of Lords upheld the conviction with a majority verdict of 3:27, but they were divided on their reasoning for this decision. One of the judges was of the opinion that a defendant had the necessary intention for a consequence if it can be shown that they foresaw that consequence as being a highly probable result of their actions. Another judge felt that mere probability would suffice, while a third judge believed that the consequence needed to be a substantial risk. Although the Law Lords disagreed on the level of risk the defendant had to foresee, it seemed that the majority of the judges agreed that foresight of consequences was the same as intention. However, Lord Hailsham did not agree with this view. He felt that foresight of consequences could not be said to be equal to intention, and this opinion was also adopted by the judges in the later cases of Mohan (1975) and Belfon (1976)8. These were two non-­‐fatal injury cases in which it was decided that foresight of consequences was merely evidence which, in consideration with all other 4
“The Law Commission: Imputed Criminal Intent”, see: http://www.jstor.org/discover/10.2307/1092603?uid=3738032&uid=2&uid=4&sid=21101045874743 5
“Criminal Law Statutes 2011-­‐2012” – Jonathan Herring, p.21 6
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“Criminal Law” (2 edition) – Diana Roe, p.22 7
“Hyam v DPP (1975)” http://www.oup.com/uk/orc/bin/9780199564712/haralambous_ch03.pdf 8
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“Criminal Law” (2 edition) – Diana Roe, p.22 aspects of the case, the jury could use to decide whether or not the defendant intended to commit the crime9. The Moloney guidelines: Not only was the judgement in the Hyam case confusing due to the divided opinions of the judges, it was also highly controversial as it appeared to blur the boundaries of recklessness and intention. Recklessness is a much lower form of mens rea than intention which is decided on the probability of a risk occurring10. Lawyers and academics were not happy with the idea that intention to commit murder, one of the most serious offences, could be proved by similar standards to that of recklessness. If intention to commit murder could be based on the defendant’s ability to foresee the possibility of a consequence, then the degree of risk to be foreseen needed to be clarified in order to separate intention from recklessness. This was the issue that was considered in the case of Moloney (1985)11. The defendant in this case had been drinking with the victim, who was his stepfather. An argument eventually broke out between them over who could load a shotgun the fastest. The defendant had been the first to load the gun and shot his stepfather. He later claimed that his stepfather had dared him to pull the trigger and that he had not intended to kill him. The trial judge directed the jury with the following guidelines from the Hyam case: “A man intends the consequences of his voluntary act a) when he desires it to happen, whether or not he foresees that it will probably happen and b) when he foresees that it will probably happen whether he desires it or not.”12 From this, the jury would probably deduce that a fairly low level of foresight was required and that the foresight was definite proof of intention. However, the cases of Mohan and Belfon had established that foresight was merely evidence of intention. The matter eventually reached the House of Lords, who overturned the verdict and agreed that the interpretation of the law in the cases of Mohan and Belfon was the right one. Lord Bridge illustrated this point in his judgement, stating that: “The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent.”13 This part of the judgement was accepted in later cases and has never been expressly overruled, so it is still part of the law on intention today. However, the latter part of Lord Bridge’s judgment has caused some problems. Lord Bridge provided two questions which he suggested should be put to the jury in situations where it was necessary to provide a direction on foresight of consequences. These questions were: 9
The case of Mohan (1975) also made another significant contribution to the law on intention. This case made it clear that a defendant’s motive was irrelevant when deciding whether or not they intended to commit the crime. 10
“Hyam v DPP (1975)”: http://www.oup.com/uk/orc/bin/9780199564712/haralambous_ch03.pdf 11
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Hyam case directions: http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf 13
Moloney (1985) – Lord Bridge’s judgement: http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf “First, was death or 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.”14 These questions eventually became known as the “Moloney guidelines”, and although they seemed to provide a reasonable answer to the issues surrounding foresight of consequences, they were far from perfect. Earlier in his judgment, Lord Bridge had attempted to distinguish intention from recklessness by stating that the degree of probability to be foreseen for intention must be “little short of overwhelming”15. However, the actual guidelines themselves make no reference to probability at all. Referring back to s.8 of the Criminal Justice At 1967, which uses the phrase “natural and probable consequence”, it is clear that these guidelines were not adequate as they only refer to a “natural consequence”. The problem was eventually resolved in the case of Hancock and Shankland (1986)16. In this case the defendants were two miners who were on strike. They had tried to stop a third miner from going to work by dropping a concrete block in front of the taxi which was driving him there. The concrete block bounced off the road and through the windscreen of the taxi, killing the driver. The two men were initially convicted of murder under the Moloney guidelines, but their conviction was quashed on appeal. Lord Scarman explained the reasoning for this in his judgment: “...the Moloney guidelines as they stand are unsafe and misleading .They require a reference to probability. They also require an explanation that 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 that consequence was also intended.”17 This case, therefore, had decided that the Moloney guidelines should no longer be used, but the Law Lords failed to put any other guidelines in their place. However, the court did take the opportunity to reiterate the fact that although foresight of consequences if evidence of intention, it does not constitute intention in itself. Nedrick and Woollin: The question arose again in the case of Nedrick (1986)18. The facts of this case are very similar to the Hyam case – the defendant poured paraffin through a woman’s letterbox and set it alight, and a child died in the fire. In the first instance trial the defendant was convicted of murder, but he was later acquitted of this charge and was found guilty of manslaughter instead. The judges in the Court of Appeal felt that the guidelines from Moloney (1985) and Hancock and Shankland (1986) were not clear enough. They considered the judgement of Lord Bridge in the Moloney case, who had stated that “the probability of the consequences taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent”, and decided that this very high 14
Moloney (1985) – Lord Bridge’s judgement : http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf 15
Moloney (1985) – Lord Bridge’s judgement : http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf 16
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“OCR Criminal Law for A2” (3 edition) -­‐ Jacqueline Martin, p.23 18
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“Criminal Law” (2 edition) – Diana Roe, p.23 degree of foresight should be included in the guidelines themselves. In his judgement, Lord Lane created new guidelines for foresight of consequences. He suggested that juries should be told that: “if they are satisfied that at the material time the defendant recognised that death or serious injury would be virtually certain, (barring some unforeseen intervention) to result from his voluntary act, then it 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.”19 In other words, juries should now ask themselves whether or not the consequence was a virtual certainty of the defendant’s actions, and if so, did the defendant foresee this? If they could answer positively to both questions, then there was sufficient evidence for them to infer that the defendant intended to commit the crime, but they were not bound in law to do so. These guidelines remained the law until the case of Woollin (1998)20. In this case, the defendant had thrown his three-­‐month old baby towards his pram which was approximately four feet away. The baby missed the pram and suffered fatal head injuries. The court applied the Nedrick guidelines and the defendant was found guilty. However, the trial judge later told the jury that they could infer intention if the defendant appreciated that there was a “substantial risk” of his actions causing death or serious injury. This standard is obviously much lower than the one set by the Nedrick guidelines, and so the jury may have been confused as to which one to apply. For this reason the case was appealed to the House of Lords, who quashed the conviction. The Law Lords also felt that the Nedrick guidelines were not as helpful as they could be. They held that the word “find” should be substituted for the word “infer” in order to make the questions easier for the jury to understand. This meant that the model direction now reads: “...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.”21 This is currently the accepted definition of oblique intention in English law. In many respects it is a vast improvement on all of the previous directions; it provides juries with simple instructions about what they can and cannot do, and also appears to have drawn a clear distinction between intention and recklessness by expressing a requirement for “virtual certainty” as opposed to “high probability” or “substantial risk”. However, there are still some problems with the Woollin directions which leave plenty of room for confusion. These problems have mainly been caused by the substitution of the word “find” for the word “infer”. At first glance, the change of word seems to imply that juries have lost their discretion when deciding oblique intent and should consider foresight of consequences to be equal to intent. However, the word “entitled” has been kept in the direction, which could suggest that juries still retain some discretion in the matter, even when they are convinced of the fact that the defendant foresaw the consequence as being a virtual certainty of his actions. These contradictions were summed up by A P Simester and Stephen Shute in the March 2000 edition of the Criminal Law Review when they stated that: 19
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“OCR Criminal Law for A2” (3 edition) -­‐ Jacqueline Martin, p.23 “The articulation of “find” substituted by their Lordships in Woollin suggests that the link between virtual certainty and intention is definitional; on the other hand, what remains of the model definition is expressed in negative terms....which suggests that the jury can legitimately refuse to find intention even where foresight of virtual certainty is proved”22. It is therefore clear to see why the Woollin directions have caused so many problems in later cases and have led to conflicting decisions in the Court of Appeal. Conflicting interpretations of the Woollin direction: The first case of this kind to be heard following the Woollin directions was the civil case of Re A (2000)23. In this case, doctors asked the court whether it would be legal to separate conjoined twins when they foresaw that one of the twins would die. The Court of Appeal held that the Woollin guidelines laid down the rule that foresight of consequences was the same as intention. However, as this was a civil case the verdict was not binding on the criminal division of the Court of Appeal. The matter of criminal intention was finally resolved in the case of Matthews and Alleyne (2003)24, in which the defendants had dropped their victim into a deep river, even though they knew he could not swim. They watched the victim struggle towards the riverbank without trying to help him and left before he could reach safety, leaving him to drown. The original trial judge had directed the jury that foresight of consequences was the same as intent, but judges in the Court of Appeal ruled that this was the wrong interpretation of the Woollin guidelines. They decided not to apply the same reasoning they had used in Re A (2000) and ruled once and for all that foresight of consequences is not the same as intent; it is a rule of evidence from which the jury can infer intention if they see fit. Conclusion: There have been many changes to the law on criminal intention within a relatively short space of time, which makes this area of law particularly difficult to understand. However, careful exploration of the relevant case law has shown that foresight of consequences is not the same as intent. Despite the problematic directions and conflicting judgments on the issue, this conclusion is actually fairly easy to justify. The Criminal Justice Act 1967 clearly states that juries are not bound in law to infer intention on the basis of foresight alone. Furthermore, the first part of Lord Bridge’s judgment in Moloney (1985), which has never been overruled, stated that foresight of consequences is only evidence of intention and not intention in itself. The decision in Matthews and Alleyne (2003) is hardly surprising given that is supported by both an Act of Parliament and a judgment from the House of Lords. However, the law is by no means set in stone. Since the Woollin directions, the Law Commission has already proposed several new definitions for intention to Parliament, and if one of these is enacted then the law would have to change completely to accommodate it. So the law on intention is reasonably clear for the time being, but as this is a highly complex topic with such huge implications on criminal justice, it is likely that there will be further debate on this matter in the future. 22
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Bibliography: “Criminal Law” by Diana Roe, 2nd edition “OCR Criminal Law for A2” by Jacqueline Martin, 3rd edition “Criminal Law Statutes 2011-­‐2012” by Jonathan Herring “Oxford Dictionary of Law”, 7th edition http://www.justis.com/data-­‐coverage/iclr-­‐s3540029.aspx http://www.e-­‐lawresources.co.uk/DPP-­‐v-­‐Smith.php http://www.jstor.org/discover/10.2307/1092603?uid=3738032&uid=2&uid=4&sid=2110104587474
3 http://www.lawteacher.net/criminal-­‐law/lecture-­‐notes/mens-­‐rea-­‐lecture.php http://www.oup.com/uk/orc/bin/9780199564712/haralambous_ch03.pdf http://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf