Criminal Law Essay - \'is a consequence foreseen as highly likely a consequence intended?\' PDF

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Criminal law essay on the relationship between foresight & intention (2:1 Grade)
'is a consequence foreseen as highly likely a consequence intended?'...

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“A consequence foreseen as highly likely is a consequence intended.” Is this an accurate reflection of the current state of law? Should it be? In this essay I will argue and evaluate the ways in which the above statement is not an accurate representation of the law today (even though the opposite can be seen in previous case law), and how a consequence foreseen as highly likely, is not a consequence intended. This will be illustrated by drawing upon the distinctions between current and previous case law surrounding oblique intention, and its relationship to foreseeability. I shall further observe that although the current law does not equate these two elements as synonymous, this does not negate the fundamental importance of foresight when finding intention, and that courts, despite attempts to shed light on this murky area of law, have failed to do so. One of the elements needed to establish criminal liability for an offence, alongside the actus reas (guilty action), is the mens rea (a guilty state of mind). Intention is an example of a mens rea requirement and holds the highest degree of culpability of all mens rea. It is divided into two types: direct and oblique (indirect) intention. While there is no statutory definition for either, direct intention has been previously defined in the case of R v Mohan1 as: ‘a decision to bring about … within the accused’s power [a particular consequence], no matter whether the accused desired that consequence or not’. This suggests that direct intention refers to the defendant’s main purpose or goal. This is distinctly different from whether something is merely ‘likely’, as the defendant set out to achieve the particular outcome. Therefore, foresight relates particularly to oblique intent which is defined as a consequence which was not the defendant’s main aim or purpose, but one that they were aware, or virtually certain would occur (seen in the case of R v Woolin2). Foreseeability refers to the idea that the defendant was able to anticipate the injury or damage that occurred as a result of their actions. Some may argue that the law treats foresight and intention as being synonymous with each other as seen by ‘foresight of virtual certainty’ test established within recent law. However, I would consider this a gross misinterpretation of the current law’s direction. In the leading case of R v Woolin3 (in which a father threw his six-month-old son to his pram in anger, without meaning to injure him. Missing the pram, the baby hit the floor and was killed) It was

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[1976] QB 1 [8]. [1999] AC 82 (HL). 3 ibid.

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made clear that for oblique intent to be established, the defendant must have foreseen death or grievous bodily harm as a virtually certainty. The baby hitting the floor and dying could not have been seen as a virtually certain consequence, therefore, the defendant could not be convicted of murder. As the requirement of virtual certainty occupies a higher threshold than something that is ‘likely’ due to this certainty required, it cannot be said that the current law equates foresight and intention with each other, rather this reinforces the idea of foresight and intention as two distinct categories. In my view, this is a more satisfactory approach for courts to adopt, as it not only alleviates confusion as to jury guidance by providing specific guidelines as to the certainty required, but it also means that criminal culpability is not reliant on trivial distinctions such as ‘likely’ and ‘highly likely’ which are uncertain and difficult to distinguish, such an approach is particularly concerning when dealing with offences of such high culpability and seriousness. Furthermore, as correctly suggested by Ashworth,4 the alteration by lord Steyn of the model jury guidance from ‘entitled to infer’ to ‘entitled to find’ suggests that this is a flexible criterion with room for interpretation. This further suggests that intention may be (but not necessarily be found) by the jury. This signifies that there is some leeway here for courts and that this requirement is not a rigid one. Therefore, this suggests that courts deem foresight only as evidence from which intention can be drawn and not as being equated to each other, as this flexibility suggests that there may be cases in which the jury find foresight but do not conclude that the consequence was intended. In my view, while this approach may be beneficial approach for courts, there is a danger that such ‘moral elbow room’ may compromise legal certainty, causing further confusion for juries. Issues with equating the two can be seen in prior case law of R v Moloney.5 Here it was held that the defendant who killed his stepfather having shot him after engaging in a drunken shooting contest, could not be convicted of murder, and that this previous verdict convicting him was unsatisfactory (as the defendant’s defence – that he had not aimed and did not intend to point the gun to his stepfather, had not been considered). The model jury guidance formulated in this case stated that intent can be inferred where the consequence was foreseen by the defendant as a ‘natural consequence’ of his act. This approach could be regarded as unsatisfactory when compared to current law, as it was incredibly vague, offering no specific guidance to the jury as to the probability of foresight needed to intend an action, thereby 4 5

Andrew Ashworth, Principles of Criminal Law (9th edn, OUP 2019) 193. [1985] AC 905 (HL).

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causing confusion within the law. This reinforces the importance of the law as it is today whereby the threshold needed to establish intention is specified using this previously mentioned criteria of ‘virtual certainty’. This is beneficial for legal certainty by helping to alleviate ambiguity within the guidance given. Therefore, it can be said that in comparison, the new law can be deemed as more satisfactory as it offers clearer guidance to juries by not equating foresight with intention. In her article, Kaveny6 is correct in asserting that foresight and intention are ‘two quite distinct mental states’ and that ‘… no degree of foresight can, by itself, be the basis of a reliable inference of intention’ because solely equating foresight to intention would be a restrictive view, that could have potentially dangerous affects for courts by leading to unsatisfactory verdicts. Instead, the courts adopt a more holistic view of considering foresight as a virtual certainty which considers more than just foresight to conclude intention. Therefore, it would be inaccurate to state that the current law regards a consequence foreseen as highly likely to have been intended. From previous case law, some may argue that a consequence foreseen as highly likely could be regarded as a consequence intended. For example, in the case of R v Hancock and shankland where Lord Scarman (p 437F) stated: ‘The greater the probability of a consequence, the more likely it was that it was foreseen. The greater the probability was that consequence was intended.’7 However, I would argue the opposite. By specifying the degree of probability required to decipher whether a consequence was intended, this reinstates the notion that a finding of intention where foresight is present is not a certainty. Where foresight may be present, this only leads to a finding of intention where the degree of probability required is satisfied. This once again reiterates that there is flexibility within this guidance. Therefore, it is still evident from this guidance that foresight was deemed merely as evidence for intention and a means by which intention may be found, rather than a substantive rule of law, meaning that these two must not be conflated. It is clear from recent cases that a substantive rule of law for intention has not yet been reached. This can be seen from the case of R v Matthews and Alleyne8 where the defendants

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Cathleen Kaveny, ‘Inferring intention from foresight’ (2004) 120, LQR 81, 82. [1986] AC 455 [437] (Lord Scarman). 8 R v Matthews and Alleyne [2003] Crim. L.R. 552. 7

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pushed the victim off a bridge into a river, causing him to drown. They were convicted of murder on the basis that they were aware that the victim could not swim and foresaw that him drowning was virtually certain. From this decision it is clear that foresight is still only regarded as a rule of evidence from which intention can be found, as the jury are not permitted to infer foresight from intention unless it was virtually certain that the prohibited action would cause injury or death. Therefore, it can still be said that foresight remains only a rule of evidence and that equating foresight with intention would be a step too far. In addition, while Coffey is correct in stating that the current law has ‘not reached the stage where intention and foresight of consequences is equated and the ruling in Woolin9 did not sufficiently clarify the law …’10 I would argue that the same can be said for this case of R v Matthews and alleyne11. While the virtual certainty threshold offers flexibility within the law to reach outcomes that allows justice to be served, I would argue that there is danger with such discretion in future, that there may be inconsistencies and confusion within jury verdicts as a result, thereby compromising legal certainty, which is essential within courts. It is important that the courts strike a balance between a holistic approach to how far foresight equates to intention, and a rigid approach. It seems as if courts have not yet found this appropriate balance. To conclude, it has been argued that a consequence foreseen as highly likely cannot be equated to a consequence intended, despite prior case law having grappled with this. This has been done through examining case law in this area and evaluating the ways in which the guidance given to jury’s has been altered over the years to specify this relationship between oblique intention and foresight. While the law has been somewhat clarified there is still room for this guidance to be further specified, perhaps through a statutory provision, to provide a definitive definition regarding the role of foresight when concerning oblique intent. While the concept of foreseeability remains essential within the law in relation to intention, it can be said that current law regards it only as evidence for intention, therefore it can be said that the statement is not an accurate representation of the current law.

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Woolin (n 2). Gerard Coffey, ‘Codifying the Meaning of “Intention” in the Criminal Law ’ (2009) 73 The Journal of Criminal Law 394, 413. 11 Matthews and Alleyne (n 8). 10

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Table of Cases R v Hancock and Shankland (1986) AC 455 R v Matthews and Alleyne [2003] Crim. L.R. 552 R v Mohan [1976] QB 1 R v Moloney [1985] AC 905 (HL) R v Nedrick (1986) 1 WLR 1025 R v Woolin [1999] AC 82 (HL) Bibliography Books Ashworth A, Principles of Criminal Law (9th edn, OUP 2019) Journal articles Coffey G, ‘Codifying the Meaning of “Intention” in the Criminal Law’ (2009) 73 The Journal of Criminal Law 394 Kaveny C, ‘Inferring intention from foresight’ (2004) 120 LQR 81 Oberdiek H, ‘Intention and Foresight in Criminal Law’ (1972) 81 OUP 389 Williams G, ‘The mens rea for murder: leave it alone’ (1989) 105 LQR 387...