Mens Rea - Intention PDF

Preview

Summary

Combined lecture, seminar and textbook notes...

Description

Lectures 7 – 9

Semester 1 Criminal Law Mens Rea: Intention

Intention Intention is the most serious standard of mens rea, demonstrating the greatest culpability and blameworthiness. There are two types of intention:  Direct intention: D’s aim or purpose. D intends a circumstance (e.g. that property belongs to another for theft) where he hopes that it should be present; and a result (e.g. causing death for murder) where it is his purpose or aim is to bring that result about by her conduct. D’s belief in the likely success of her aim is irrelevant.  Indirect (oblique) intention: D may not have the purpose or aim, or desired to do an act. D indirectly intends an actus reus requirement (whether circumstance or result) where it is: (a) virtually certain to arise; (b) she appreciates that it is virtually certain; and (c) the jury find that this appreciation amounts to an intention. What is intention not? Intention should not be equated to the following:  motive (Yip Chiu-Cheung [1995])  pre-meditation  foresight (Hancock & Shankland [1986])

R v Yip ChiuCheung [1975] 2 All ER 193

R v Cox [1992] CLY 886

R v Steane [1947] KB 997

Facts: D was conspiring with an undercover policeman in order to smuggle drugs in return for money. However, the latter was acting with the authority of his superiors. D was arrested and convicted of conspiracy with the undercover policeman. As a result, he appealed on the basis that the policeman lacked the mens rea for conspiracy and hence, could not be a conspirator. Held: The undercover police officer had the intention and as such, the mens rea, to conspire to export drugs. It was irrelevant that the police officer had a good motive. The undercover police officer intended to export drugs for a good motive. Facts: V was a patient of D. V had a number of medical problems and was terminally ill. D injected V with potassium chloride, killing the patient. D was charged and convicted of murder. D appealed his conviction. Held: D had the intention to kill V, even though D acted with what he believed to be a “good motive”. Motive is irrelevant to intention in this case and D was properly convicted. Facts: D lived in Germany during World War II with his wife and children. At the war's outbreak, D was arrested, assaulted and interned, and asked to broadcast propaganda in English on Germany's behalf. He initially refused but, being in fear of the fate of his family, relented. At the end of the war, he reported to the liberating forces and described his experiences to them. D

Lectures 7 – 9

Semester 1 was arrested and prosecuted for “intending to assist the enemy”. Held: There was no intent to assist the enemy by D, as he was forced and threatened into doing it. There can be no presumption that merely doing the action implied his intent to help the enemy. (It can be said that he had the intention to assist the enemy, with his motivation being to help save his family.)

Direct intention Direct intention is simply D’s aim and purpose to bring about a certain result.  D intends something if it forms part of her purpose when acting. Such intention does not require premeditation or planning, but it must be present at the time of action.  In the majority of cases, the ordinary everyday meaning of intention will be sufficient, this is known as the “golden rule”. o “The golden rule should be that… the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent” (Lord Bridge in Moloney [1985] 1 AC 905)  Aim and purpose should not be equated to want or desire.  The meaning of intention should be left to the good sense of the jury (Moloney [1985])

R v Mohan [1975] 2 All ER 193

Facts: D was convicted of attempting, by wanton driving, to cause bodily harm to a police officer when he accelerated towards and drove his car straight at an officer when he signaled at him to stop. The trial judge had directed the jury that intention was not necessary, and that all that needed to be proven was if D foresaw that his conduct was likely to cause bodily harm. Held: Oblique intention let alone recklessness did not suffice. D must be proven to have the specific intent to bring about a certain result. It was not sufficient that D foresaw the result. The meaning of direct intention is “a decision to bring about a certain consequence” or the “aim”.

Indirect intention (oblique intention)

Lectures 7 – 9

Semester 1

Indirect intention is used when it is unlikely for direct intention to be found. It is a less common form of intention.  Does not involve D’s aim or purpose or desire to cause the prohibited result.  D obliquely intends a consequence when the result of D’s conduct is a virtual certainty, and that D appreciated it to be virtually certain.

R v Woollin [1998] 4 All ER 103

Facts: D killed his child by throwing it against a hard surface. D did not desire to kill the child. D was charged with murder, requiring a mens rea of intention to kill or cause serious bodily harm. The trial judge directed the jury that they could find intention if they were satisfied that D realised that his actions posed a “substantial risk” of causing death or serious injury. Held: A direction in relation to “substantial risk” is not appropriate. The trial judge had blurred the line between intention and recklessness. In order for the jury to find intention, the result of D’s conduct must be: (a) a virtual certainty; (b) appreciated by D as virtual certainty; and (c) for the jury to find intention.

Virtual certainty test The virtual certainty test was developed in Woollin [1998] by the House of Lords. It consists of three limbs: (a) The result of D’s conduct must be a virtual certainty;  The first limb of this test is an objective.  The offence element must be virtually certain in fact. (b) D must appreciate the result of his conduct as a virtual certainty; and  The second limb of this test is subjective.  D must foresee the offence element as a virtual certainty.  If the jury believes that D honestly did not foresee or might not have foreseen the offence element as a virtual certainty, even if it was a virtual certainty in fact and even if it would have been obvious to the reasonable person, this limb of the test fails and the jury would not be entitled to find intention. (c) The jury may be entitled to find intention.  If both limbs of the test are satisfied, then the jury will be entitled to find intention.  However, the jury is not obliged to find intention, even if both limbs of the test are satisfied. High threshold of the virtual certainty test The high threshold (virtual certainty) for intention is essential to provide a clear definition of intention separate from recklessness.  It becomes difficult to draw the line where intention is equated with high levels of foresight short of a virtual certainty.

Development of indirect intention

Lectures 7 – 9

Semester 1

Intention has been developed over many years by the courts.

Hyam v DPP [1975] AC 55

Facts: D put blazing newspaper through the letterbox of her rival (X) causing a house fire. D’s intention was to scare X, but in fact she caused the deaths of X’s children (V). D claimed that she had only intended to frighten X and had not intended to kill V. D was convicted and appealed. Held: Foresight of a “high probability” of serious bodily harm was sufficient to satisfy the mens rea for murder. Facts: D shot his stepfather V (whom he loved) in a drunken contest that involved the quick-drawing of loaded shotguns. V challenged D to shoot him in the head, and he did. D’s gun was directed point blank at V’s head when D fired and V was killed instantly. D was convicted and appealed.

R v Moloney [1985] AC 905

Held: D had not intended to kill his stepfather. Knowledge of foresight of the consequences of an action were to be considered at best material from which a crime of intent may be inferred. The jury may infer intention if the result of D’s conduct was a natural consequence, and that D foresaw this as a natural consequence of his conduct. The jury may infer intent but are not obliged to infer intent. Intention should be left to the good sense of the jury. Foresight of natural consequences is no more than evidence of the existence of intent. For D to have intended something which was not his aim or purpose, the probability of it happening had to be little short of overwhelming. The judge should invite the jury to consider two questions: (1) Was death or really serious injury a natural consequence of D’s voluntary act? (2) If so, did D foresee that consequence as being a natural consequence of his act? Facts: D1 and D2 (who were striking miners) pushed a concrete block from a motorway bridge intending to scare working miners travelling in taxis on the motorway below. The block hit a car and killed V. The trial judge convicted D of murder, following Lord Bridge’s “natural consequence” formulation in Moloney [1985].

Hancock & Shankland [1986] AC 455

Held: Conviction quashed on appeal. Foresight of a “natural consequence” may go beyond foresight of something that is certain and is too vague. Lord Scarman: “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 the consequence was also intended…”

Lectures 7 – 9

Semester 1 Facts: D poured petrol through the letterbox of X’s house and set it alight. A child (V) died in the house fire. The jury was directed by the trial judge to equate foresight with intention, where D foresaw death or injury as a “highly probable”. D was convicted.

R v Nedrick [1986] 1 WLR 1025

Held: Conviction quashed on appeal. Lord Lane: “where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that 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…”

Criticism of the virtual certainty test The virtual certainty test in Woollin [1998] came under criticism:  What is meant by “virtual certain”? There is no absolute definition and may vary depending on the jury’s own interpretation.  Does the change of wording from “infer” to “find” change anything important? Change to “find” could mean that virtual certainty is not the test for the substantive existence of intention in the mind of D, it is merely evidence of intention.  Must the jury find intention or are they simply entitled to find intention but equally not entitled to do so? (Matthews [2003])  What other factors will the jury take into account? Problematic because no other factors have been considered for the jury to consider when determining intent.  The test is under-inclusive, not covering people it should.  The test is also over-inclusive, covering people it should not. (Nicklinson [2014]).  The test may not apply for intention in offences outside of murder, such as the offence of grievous bodily harm. (Bryson [1985])...