Intention Essay Question & Answer PDF

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‘Despite it being such an important concept, the meaning of intention has caused problems for the courts.’
(J. Herring, Criminal Law: Text, Cases and Materials, 6th ed. (OUP 2014), p. 134)
Discuss with reference to decided cases....

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‘Despite it being such an important concept, the meaning of intention has caused problems for the courts.’ (J. Herring, Criminal Law: Text, Cases and Materials, 6th ed. (OUP 2014), p. 134) Discuss with reference to decided cases.

A majority of crimes contain both actus reus and mens rea elements. Mens rea is the ‘guilty mind’ of the defendant, while actus reus is everything else; usually a ‘guilty act’. While there are many forms of mens rea, intention is considered the most culpable. For this reason, intention must be separated from recklessness as it forms the mens rea for the most serious offences, primarily murder. This essay will look at the historical development of the meaning intention and why the courts have struggled to settle on a definition. Historically, the definition of intention has posed many issues over the years, with the courts developing the meaning in judgements. There are two types of intention: direct intent and indirect intent. Ashworth and Horder’s Principles of Criminal Law defines direct intent as the defendants ‘aim, objective or purpose’ which is often seen in simple and uncomplicated cases. Indirect intent is what the courts have struggled with, adhering to two main questions: how likely was the prohibited result to occur and did the defendant foresee that likelihood? A test for direct intent is Anthony Duff’s test of failure, which states that had the criminal act not occurred, the defendant would need to regard this as failing their plan, therefore they intended for it to happen.

Lord Diplock in Hyam v DPP [1975] proposed that the defendant intended the result if they knew that it was a probable result of their conduct. This faced immense criticism as it blurred the lines between intention and recklessness, which allowed murder convictions getting mixed up with manslaughter convictions. 1 year later, R v Mohan [1976] defined intention as ‘a decision to bring [the prohibited result], insofar as it lies within the accused’s power…’. This was an early definition set by the courts; however, it like Hyam, did not establish the difference between intention and recklessness, which is crucial in a murder conviction as recklessness will only amount to manslaughter.

R v Moloney [1985] established the difference between intent and motive. The defendant, while intending the travel, had no desire to go to Manchester but his motive was to escape from the police. It also established the ‘golden rule’ of intention per Lord Bridge, ‘when directing the 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…unless the judge is convinced that some further explanation or elaboration is strictly necessary to avoid misunderstanding.’ In other words, in rare cases in which it is necessary to direct a jury, the judge should only ask the jury to consider two questions: was the death or serious injury…a natural consequence of the defendant’s voluntary act and did the defendant foresee that consequence as being a natural consequence of his act? The judge should then state that if the jury finds both answers to be yes, then they should find that the defendant intended the consequence. The struggle here is that it does not mention anything about the probability of the result, which is required when it was not the defendant’s desire to kill or serious injure the victim. R v Hancock and Shankland [1986] aimed to fix this issue and ruled that ‘the greater the probability of a consequence, the more likely it is that the consequence was foreseen, and that if that consequence was foreseen the greater the probability is that that consequence was also intended’. This established that even if the defendant did not desire the outcome, if it was likely to be foreseen, then it is likely that the consequence was intended.

R v Hayes [2002] established that it is only necessary for the judge to explain intention to the jury in very rare and exceptional cases, where a certain result was very likely to occur following D’s actions, but the result was not D’s aim or purpose.

R v Nedrick [1986] ruled that where the charge is murder and simple direction is not enough, the jury should be directed that they cannot infer intention unless: objectively they are certain that death or serious bodily harm was a virtual certainty as a result of the defendants actions and subjectively that the defendant also appreciated that this was the case. The House of Lords agreed with Nedrick but in R v Woollin [1999], they substituted the word ‘find’ for the world ‘infer’. R (Charles) v CCRC [2017] made it clear that the Woollin test should only be applied when intent is not relatively straightforward. An argument lied between whether the Woollin test

should be a piece of substantive law; giving the jury no choice but to find that the defendant intended it, or a piece of evidence; which allows the jury to find that the defendant intended it if they want to. R v Steane [1947] was a key judgement to illustrate the importance that the Woollin test needed to be a piece of evidence. The defendant was forced by the Nazi’s to broadcast enemy propaganda in order to save his family. It was evident to the jury that it was his intention to save his family. If applying the Woollin test, it would leave the jury no choice but to find the defendant guilty as he was virtually certain that his actions would cause an offence. The test faced criticism as it is under-inclusive and not including people the courts intended it to. Smith, Hogan, & Ormerod's Essentials of Criminal Law made an example that if a defendant plants a bomb on the aeroplane to destroy items that he had insured, even though he does not want the pilot to die nor is it his aim or purpose, a jury would still find that the defendant killed the pilot without careful elaboration of the meaning of intention by the judge. It is also inclusive as it would imply that Steane did intend to assist the enemy which was clearly not the case. R v Matthews and Alleyne [2003] solidified that the Woollin test should only be a test of evidence as ‘the law had not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty’. This gives the jury ‘moral elbow room’ to allow defendants like Steane off the hook. It is evident that the main issue that faced the courts was establishing the difference between intention and recklessness but by critically analysing the historical development of the definition of intention, it was easy to identify not just the issues that faced the courts and the attempts that was made to rectify them....