Essential reading : J Martin Criminal Law for A2 pages 23-27
The mens rea for murder is defined as malice aforethought, which has come to mean
either an intention to kill (express malice) or an intention to cause GBH (implied
malice).
The term malice aforethought is actually quite deceptive: D’s motives need not be
malicious and are in fact irrelevant, deliberate euthanasia prompted by motives of
compassion satisfies the mens rea requirement just as well as shooting someone
because you hate them. Nor despite the word aforethought is premeditation a
necessary requirement so long as the intention is there, it is perfectly possible for a
murder to be committed on the spur of the moment.
There are actually two types of intention: direct and indirect, both of which are
sufficient for the criminal law.
Intention is purely subjective:
The test of what D foresaw and intended is always a subjective one based on what the
jury believes D actually foresaw and intended and not what he should have foreseen
or intended for example.
DPP v Smith 1960
In this case the House of Lords appeared to say that a person intended death or GBH
if a reasonable person would have foreseen that death or GBH would result from D’s
act even if D did not foresee this. However this objective test was considered bad law
and was overruled by s8 Criminal Justice Act 1967. This provides that a person is not
to be regarded as having intended or foreseen the natural and probable consequences
of an act simply because they were natural and probable although this may be
evidence form which the jury may infer (find) that it was intended. The crucial issue
is what D actually foresaw and intended not what he should have foreseen.
Direct Intention
Here D actually wants the result that occurs and sets out to achieve it.
Indirect Intention
………..sometimes known as oblique intention, is less straightforward. It applies
where D did not desire a particular result but in acting as he did realised that it might
occur. The courts are now quite clear that this type of intention can be sufficient for
murder; people can intend deaths that they do not necessarily want. But in a line of
important cases they have tried to specify the necessary degree of foresight required
in order to provide evidence of intention.
R v Moloney 1985
Clearly D did not want to kill his stepfather but could he be said to have intended to
do so? Lord Bridge pointed out that it was quite possible to intend a result, which you
1
do not actually want. He gave an example of a man who in an attempt to escape
pursuit boards a plane to Manchester. Even though he may have no desire to go to
Manchester he may even hate the place that is clearly where intends to go!
Foresight is merely evidence of intention for the jury to decide upon!
Moloney established that a person can have intention where they did not want the
result but merely foresaw it yet the courts are not saying that foresight is intention it is
merely evidence from which intention can be found!
Before Moloney in the case of Hyam v DPP 1975 it had looked as though foresight
was actual intention( a rule of law).
Hyam v DPP 1975
The court held in this case that D must have foreseen that death/GBH were highly
likely to result from her conduct and that this was sufficient mens rea for murder. In
Moloney the House of Lords held that Hyam had been wrongly decided and that
nothing less than intention to kill/cause GBH would constitute malice aforethought,
merely foresight of V’s death as probable was not intention but could be evidence of
it.
Lord Bridge suggested that juries might be asked to consider 2 questions:
1. Was death/serious injury a natural consequence of D’s act and
2. Did D foresee that one or other was a natural consequence of their act.
If the answer was ‘Yes’ the jury may infer from this evidence that death was intended.
Comment:
Apply this test to an unwanted pregnancy – it demonstrates that it does not work!
Pregnancy is a consequence of sex but is it certain to occur, virtually certain, highly
probable, probable or possible? You decide!
This guidance for juries proved problematic. Apply the test to the facts of:
R v Hancock and Shankland 1986
At their trial the judge had given the Lord Bridge’s direction above and they were
convicted of murder. On appeal the HL held that this had been incorrect and a verdict
of manslaughter was substituted. Their Lordships agreed with Lord Bridge that
conviction for murder could result only from proof of intention and that foresight of
consequences was not intention but they were concerned that the question whether
death was a natural consequence of D’s act might suggest to juries that they need not
consider the degree of probability. The fact the death might be a one in ten chance
would still mean that it was a natural consequence of D’s actions but with this degree
of likelihood there would seem to be little evidence of intention, rather recklessness.
2
Lord Scarman suggested that the jury should be directed that:
The greater the probability of a consequence (death) the more likely it is that the
consequence was foreseen and that if that consequence was foreseen and that is that
consequence was fore seen the greater the probability is that that consequence was
also intended. But the juries also need to be reminded that the decision is theirs to be
reached upon a consideration of all the evidence.
The concept was further clarified in:
R v Nedrick 1986
Lord Lane:
Where the charge is murder and in the RARE CASES where the simple direction
(direct intent) is not enough
“The jury should be directed that they are not entitled to infer the necessary
intention unless they feel sure that death/serious injury was a VIRTUAL
CERTAINTY as a result of D’s actions and that D appreciated that this was the
case.
Where a man realises that it is for all practical purposes inevitable that his actions
will result in death/serious harm the inference may be irresistible that he intended
that result however little he may have desired or wished it to happen. The decision
is one for the jury to be reached on a consideration of all the evidence.”
In other words, Lord Lane considered that even if death/GBH is not D’s aim or wish,
the jury may infer intention if they decide that death/GBH were virtually certain to
result from the D’s act and D foresaw that this was the case.
The VIRTUAL CERTAINTY TEST in Nedrick became the key test on indirect
intention. Then confusion was thrown into this area of the law by the CA judgement
in Woollin 1996.
R v Woollin 1996
The trial judge directed the jury that it was open to them to convict Woollin of murder
if satisfied that he was aware there was a substantial risk he would cause serious
injury. On appeal the defence argued that the judge had misdirected the jury by using
the term substantial risk, which was the test for recklessness, and failing to use the
virtual certainty test. The CA rejected the appeal.
A further appeal was made to HL. It said that the CA was wrong. It said that the
Nedrick direction was always required in the context of indirect intention. Otherwise
there would be no clear distinction between intention and recklessness. The Nedrick
direction distinguishes the two concepts by stating that intention will only exist when
3
the risk is foreseen as a virtual certainty. Accordingly Woollin’s conviction was
reduced to manslaughter.
Thus the Nedrick VIRTUAL CERTAINTY test was approved though two changes
were made:
They substituted the word infer with the word find-but it is still a question of evidence
for the jury to decide upon.
The second change was that the majority of the Lords felt that the first sentence of the
second paragraph of Lord Lane’s statement in Nedrick (Where a man realises that it
is for all practical purposes inevitable that his actions will result in death/serious
harm the inference may be irresistible that he intended that result however little he
may have desired or wished it to happen) did not form part of the model direction. So
the jury will not normally be pressurised into finding intention by being told that a
finding of intention ‘may be irrisistible’.
So, the model direction now reads as follows:
Where the charge is murder and in the RARE CASES where the simple direction
(direct intent) is not enough, the jury should be directed that they are not entitled to
infer the necessary intention unless they feel sure that death/serious injury was a
VIRTUAL CERTAINTY (barring some unforeseen intervention) as a result of D’s
actions and that D appreciated that this was the case. The decision is one for the
jury to be reached on a consideration of all the evidence
4