#4610 - Intention - GDL Criminal Law

• Mens Rea for murder = MALICE AFORETHOUGHT

  • Misleading term: no requirement for malice and doesn’t need to be premeditated

  • Even if acting on compassionate terms there will be murder - Inglis (2011) – mercy killing is no defence in English law

1. An intention to kill (express malice) OR

2. An intention to cause GBH (implied malice) – R v Vickers

• GBH has the meaning of really serious harm as defined in DPP v Smith and also Saunders

Types of Intention: Direct + Oblique

Direct Intent:

• Where the consequence is what the defendant wants to happen – purpose/objective of him acting

• Even if his chances of success are slim

• Subjective test

The general rule

• R v Maloney – Lord Bridge made it clear intention should be given its ordinary meaning – “desire”/”motive”

• Where the aim/purpose is to commit the actus reus

• Judges should refrain from giving further explanation as to the meaning of ‘intention’ (unless jury asks for it)

Oblique Intent:

• Rare: where intent is the only form of mens rea (e.g. murder, s 18 GBH with intent) - not where recklessness is an alternative

• Oblique intent is where the result is not the defendant’s purpose but a side effect that he accepts as an inevitable accompaniment to his direct intention

Debate over what is required to find oblique intent:

• View that foresight of high probability could amount to intention - Hyam v DPP

  • But – in R v Maloney – foresight of probability could never amount to intention

    • Lord Bridge: ‘natural consequence’: but this term led to confusion

  • R v Nedrick – clearer test:

    • ‘the jury are not entitled to infer the necessary intention, unless they feel sure that death or serious harm was a virtual certainty and that the defendant appreciated that was such the case’ – Lord Lane C.J.

  • This 2^nd test was adopted by HL – R v Woolin – Lord Steyn - jury needs to feel sure that:

1. ‘death or serious harm was a virtual certainty as a result of the defendant’s action’ (Objective test), and that;

2. ‘the defendant appreciated that such was the case’ (Subjective test)

Intention or evidence of intention

• Unclear if oblique intention is a definition of intention or whether it is merely evidence of intention

• R v Maloney: Lord Bridge stated that such a state of mind could only be evidence of intention

• R v Nedrick – bound by Maloney

• Idea that foresight of virtual certainty could be evidence of intention w/o also being intention has been severely criticised

Draft Criminal Code: includes oblique intention in is definition of intention

• R v Woolin:

  • Lord Steyn seemed to be treating foresight of virtual certainty as part of the definition of intention – ‘a result foreseen as virtually certain is an intended result’

  • Subtle change to Nedrick test: now jury should find intention rather than infer intention

  • But he didn’t tamper with negative structure of the Nedrick direction – so that they are not entitled to find the necessary intention unless they find foresight of virtual certainty, not that they must find the necessary intention in such a case

• R v Mathews and Alleyne – trial judge had directed the judge to find that intention to kill was proved if they satisfied that the defendant had appreciated that there was a virtual certainty of death:

  • CA did not consider that Lord Steyn had changed the law and said the foresight of virtual certainty was still only evidence of intention

  • ‘the law has not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty’

• Alan Norrie: Philosophical discussion - wrong to distinguish btw oblique intention and desire - oblique intention should be seen as a species of intention - E.g. ‘If I drive over you because I am in a hurry and you are in the way’ – intention = to make progress – but running over you still has a ‘desirability characteristic’ in the broader context

Motive and Intention

• Always intention which will form the basis of criminal liability – not motive or desire

• If a defendant has a motive (a reason to kill) – doesn’t mean that when he commits the actus reus he automatically has the intention to kill

• But individual can be taken to intend both their ends and the means through which they will achieve them

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