Mens Rea - Intention

Question 1

Direct intention (1)

Answer 1

• R v Moloney
  o The golden rule – the judge should avoid any elaboration or paraphrase of what is meant by intent and leave it to the jury’s good sense

Question 2

Indirect intention (7)

Answer 2

• Meaning is unclear in case law and is developing
• Hyam v DPP
  o Level of foresight – a probability or high probability
  o Poured petrol through letterbox of lover’s new mistress’ house and sets on fire. People die in the fire. Hyam made sure lover was not home when she did this.
  o Mens rea for murder – must show intention to kill or cause GBH
  o Foresight – was death probable from these actions?
  o Lord Hailsham – evidential approach – foresight and intention not the same thing
  o Lord Dilhorne – definitional approach - foresight and intention are the same thing – if actions are intended, knowing it is highly probable that GBH will result, then it would be the same as intending GBH
• R v Moloney
  o Level of foresight – moral certainty
  o Moloney and step dad drinking and have competition who is quickest on the draw with gun. Aims and shoots at stepdad – claims never intended this. Appeals murder charge and found guilty manslaughter
  o If we have to refer to foresight, it must be higher than high probability – foresight of a moral certainty
  o Guidelines for jury – was death or serious injury a ‘natural consequence’ of D’s actions
  o Role of foresight – evidential – not part of intention (it is merely part of the evidence that goes towards proving intent)
• Hancock & Shankland
  o Level of foresight – back to high probability
  o Miners during strike pushed stone over bridge – falls and hits car killing driver
  o Moloney guidelines misleading
  o New guidelines – the greater the probability of a consequence, the more likely that it is foreseen. If a consequence is foreseen, the greater the probability it was intended
  o Role of foresight – evidence only – jury can choose to rely on it as evidence but is not necessary
• Nedrick
  o Level of foresight – virtual certainty
  o Petrol through letterbox and sets house alight. People die
  o Guidelines – how probable was the consequence which resulted from D’s voluntary act and did D foresee that consequence
  o Jury not entitled to infer necessary intention unless they feel sure death/serious bodily harm was a virtual certainty
  o Found guilty of manslaughter – shows benefit of change in the test as Hyman was found guilty of murder
• R v Woollin
  o Level of foresight – virtual certainty
  o Incessant crying from baby so threw baby across the room killing baby. D not intended to kill or seriously injure child.
  o Wrong to refer to substantia; risk – blurs line between intention and recklessness
  o Confirmed Nedrick test and virtual certainty test should be used
  o Changed infer to find – the jury are not entitled to find the necessary intention unless fell sure 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
• Matthews and Alleyne (post-Woollin)
  o Foresight of a virtual certainty is evidence from which the jury mat or may not find intention
  o Woollin not to be regarded as laying down a substantive rule of law
• R v MD (post-Woollin)
  o Only in exceptional cases is a Woollin direction appropriate – when D does an act causing death without the purpose of killing or causing serious injury and where there is evidence that D would fulfil criteria of Woollin test
  o If facts are clear the Moloney golden rule should be used

Question 3

Reform proposal of intention (1)

Answer 3

• Law Commission Report 304 Murder, Manslaughter and Infanticide
  o Aims to codify the Woollin test
  o A person should be taken to intend a result if he or she acts in order to bring it about
  o 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

Question 4

Motive and intention (3)

Answer 4

• Motive not usually took into account when determining liability – only look at it when sentencing and have already established criminal liability (Mohan)
• Steane (motive taken into account)
  o D told that wife and children put in concentration camp unless broadcast messages on radio to assist Germans. Steane did broadcast messages. Convicted of doing things likely to assist the enemy. Appealed that never had intention of assisting enemy, only intention was to save wife and children. Appeal is successful.
• Re A (Conjoined Twins)
  o Twins conjoined. Jodie capable of living independently, Mary not if twins separated. If leave together, both twins will die. Doctors separate twins – could they be guilty of murdering Mary?
  o Walker LJ – ignores indirect intent – M’s death was not purpose or intention of operation (it was to save Jodie’s life) although was inevitable consequence
  o Brooke LJ – Inevitably find that surgeons intended to kill Mary, however little they desired it, because hr death would be virtually certain consequence of acts

Question 5

Critical commentary of mens rea intention (2)

Answer 5

• Norrie
  o Orthodox subjective approach (intention treated as a matter of fact excluding moral assessment of D’s conduct) v morally substantive approach (was D’s intention good or bad)
  o Due to the English tradition of orthodox subjectivism, the law places too much weight on a psychological conception of the required mental state and fails to recognise the issue of ‘indiscriminate malice’. Secondly the law fails to differentiate between culpable and non-culpable acts
  o After Woollin, case law contains both foresight of virtual certainty and foresight of high probability elements because nether approach adequately embodies the moral judgments required by the murder label
• Wilson
  o Woollin decision did not create a clear, unambiguous test for intention but was a small step in the right direction
  o Judges in Woollin were correct to be cautious in setting out a framework for a universally applicable standard meaning of intention as the facts of Woollin would have made it obiter – it would need a more novel case such as Gillick or Adams to justify a broad meaning of intention