Tutorial 3 (Intention) PDF

Preview

Summary

Tutorial...

Description

Criminal Law 2016-17 Tutorial 3 Intention In this tutorial we commence study of the key fault or mens rea categories used in many criminal offences with an analysis of ‘intention’. Preparation for, and participation in, this tutorial should equip you with: •

an understanding of the problems surrounding the formulation of a clear definition of intention in criminal law

•

an ability to discuss critically the House of Lord’s decision in Woollin

•

an ability to assess a selection of hypothetical factual scenarios and to employ a critical analysis of the law on intention to determine whether fault could, or should, be established

Essential Reading • •

Child J and Ormerod D, Smith and Hogan’s Essentials of Criminal Law (OUP 2015), pp 81 103 Norrie, ‘After Woollin’ [1999] Crim LR 53

Further Reading • •

Nicola Lacey, ‘A Clear Concept of Intention: Elusive or Illusory?’ (1993) 56 MLR 621 Antje Pedain, ‘Intention and the Terrorist Example’ [2003] Crim LR 579

Task 1 – Knowledge style questions The Meaning of ‘Intention’ Consider the following notes and questions which will guide you through the key issues relating to the present position on intention in the criminal law. 1.1 The difference between direct intention and oblique intention Defining intention is something that has proved very difficult. distinction between ‘direct’ intention and ‘oblique’ intention. •

We must begin by examining the

The following scenarios are used to illustrate points in the notes and questions which follow.

Case 1: Adam owns a jumbo jet. He decides to put a bomb on board, set to explode halfway across the Atlantic, because he is evil and has decided that he wants to kill lots of innocent people Case 2: Bob is due to stand trial for terrorism. He puts a bomb on board a private jet. The jet is bringing an eminent prosecutor, Rumpole, to London. Rumpole has spent months compiling the case against Bob, and Bob’s trial is due to start the day after Bob lands in London ➢ In case 1, do you think Adam intends to kill the passengers on board the jumbo jet? If so, is this his direct or his oblique intention? Yes, Adam intends to kill the passengers on the jumbo jet. This is direct intention. You can perform the Duff test: he would regard himself as having failed if the passengers do not die. ➢ In case 2 did Bob intend to kill (a) Rumpole, (b) the pilot? If so, was this Bob’s direct intention or his oblique intention? Bob intends to kill Rumpole (direct intention) not the pilot. It seems this was oblique intention for the pilot.

N.B. - When asking whether a defendant intended to do something, you may show that he had either direct intention or oblique intention. It is enough to show one or the other. 1.2 Direct intention: is the probability of success relevant? ➢ I see you running on the other side of a field. I want to kill you. So I point a gun at you. I am a terrible shot, and the fact you are ¼ mile away does not help. Plus it is extremely windy and I have left my glasses at home. I fire at you, doing my best to hit, but not surprisingly, I miss. When I fired the gun, did I intend to kill you? If so, was killing you my direct intention or my oblique intention? Is it relevant that the chances of me killing you were tiny? Yes, you did intend to kill me when firing the gun, killing me was still your direct intention. It is not relevant that the chances of you killing me were tiny, this does not change anything regarding your intentions. ➢ Suppose that in case 1 above Adam’s bomb has only a 25% chance of exploding, and Adam knows this but plants the bomb in the hope it will explode. Is killing the passengers still his direct intention? Yes, killing the passengers is still his direct intention. ➢ Is the probability of success relevant to someone’s direct intention? No, the probability of success is not relevant to someone’s direct intention. 1.3 Oblique intention: is the probability of the outcome relevant? •

The following scenario is used to illustrate points in the notes and questions which follow.

Case 3: Charles, on the verge of bankruptcy, decides to raise money by burning his house down and making an insurance claim. When he set fire to the house he knew there was only one person inside – his maid. He did not want her to die, and he knew there was a 50% chance she would be able to escape through the back door. ➢ Did Charles intend to kill his maid? No, he didn’t because it was not a virtual certainty that she would die. ➢ What were the facts in Nedrick ([1986] 1 WLR 1025 CA)? How did Lord Lane CJ say judges in murder cases should direct the jury on the issue of oblique intention? In Nedrick, D poured paraffin through the letterbox of X’s house and set it alight. A child died in the house fire. Lord Lane CJ said that the jury are not entitled to infer necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendant’s actions and that the defendant appreciated that such was the case. ➢ What were the facts in Woollin ([1999] 1 A.C. 82 HL)? D killed his child by throwing it against a hard surface. D did not desire to kill the child. ➢ According to Lord Steyn, how did the trial judge’s direction blur the distinction between murder and manslaughter? ‘infer’ and ‘find’. ➢ Did Lord Steyn agree with Lord Lane CJ’s direction in Nedrick? How did he say judges should direct juries on this issue of oblique intention? How (if at all) was this different to the direction Lord Lane CJ had recommended in Nedrick? ➢ In cases where oblique intent could be an issue, if a jury decide that either (i) death or serious bodily harm was not a virtual certainty, or (ii) D did not appreciate that death or serious bodily harm was a virtual certainty, may they decide that D intended death or serious bodily harm? No, they may not decide that D intended death or serious bodily harm. ➢ In cases where oblique intention could be an issue, if a jury decide that (i) death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D’s actions, and (ii) D appreciated that this was the case, must they decide that D intended death or serious bodily harm? No, they are only entitled to decide that D intended death of seriously bodily harm.

➢ Are there any circumstances in which a jury would decide that, although death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D’s actions and D appreciated that such was the case, a defendant did not intend death or serious bodily harm? (cf. Steane [1947] KB 997 CA & Re A (Children)(Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 CA) One of these circumstances can be seen in Re A, where this concerns the separation of two twins by doctors. 1.4 Conditional oblique intention Think back to case 2 involving Bob and the private jet ➢ Suppose that the bomb Bob planted on the plane had only a 50% chance of exploding, and Bob was aware of this. According to the Woollin direction, was killing the pilot Bob’s oblique intention? According to the Woollin direction, killing the pilot was not an oblique intention because it was not a virtual certainty that the pilot would die. ➢ In this scenario, should killing the pilot be regarded as Bob’s oblique intention? Yes, it should. This where we see that the Woollin direction has limits. 1.5 Oblique intention and results which it is your purpose to avoid •

The following scenario is used to illustrate points in the notes and questions which follow.

Case 4: A house is on fire, and a father is trapped in the attic with his two young daughters. Unless they jump they will all be killed. But if they jump they will all suffer serious injury. The two young daughters are too frightened to jump, and so the father throws one out of the window, and jumps with the other one in his arms. The little girl that he threw from the window dies of her injuries. ➢ Applying the Woollin test, did the father intend to kill or cause serious injury to his daughter? Applying the Woollin test, the father did intend to kill or cause serious injury to his daughter. ➢ Should he be considered to have intended to kill or cause serious injury to his daughter? No, he should not. Here is another limit to the Woollin test. Task 2 - Discursive, Applied or Problem Style Questions 2.1 Read the following scenario and be prepared to answer the questions which follow: Alessandro is a famous magician. He plans an illusion whereby he will appear to play ‘Russian roulette’ live on television. The illusion will involve a member of the studio audience spinning the barrel of a six-barrel pistol which will appear to contain one live bullet. Alessandro will then proceed to point the gun at his head and pull the trigger. Alessandro will do this a total of five times, with an additional bullet added before each spin. Alessandro is confident that he can use the power of his incredible mind to prevent his untimely death but, just in case he has an ‘off night’, the ‘bullets’ will in fact be blanks. On the evening of the performance Alessandro’s manager Fabio tells Alessandro that the press have been inquiring as to whether he will use real bullets, and adds, ‘wouldn’t it be more exciting, and a better story, if we did it for real’. Alessandro, thinking Fabio is joking, says ‘no problem’. Unbeknown to Alessandro, Fabio was serious and replaces the blanks with real bullets. During the performance the barrel is spun for the first time, Alessandro pulls the trigger and he survives. This also happens on the second occasion, the third and the fourth. However, tragedy strikes following the final spin of the barrel (which now contains 5 live bullets and only one empty barrel). Alessandro is killed. ➢ Did Fabio intend to kill Alessandro? He did intend to kill Alessandro with an oblique intention. 2.2 Read the following scenario and be prepared to answer the questions which follow: Dave, an out-of-control teenager, was wandering the streets late one night when he passed what he believed to be his head teacher’s house. Thinking that it would be funny to give his head teacher a scare, Dave decided to set fire to the house. In fact, it was not the home of his head teacher, but the

home of the school caretaker, Benny. As he stood watching the fire spread, Dave saw Benny appear at an upstairs window. Shocked at his mistake Dave immediately phoned the fire brigade on his mobile phone. The operator, Betsy, was convinced that it was a hoax call and so did not send a fire engine until, some time later, she received a call from a worried neighbour. By the time the fire engine arrived Benny had died in the fire. ➢ Did Dave intend to kill? Did he intend to cause someone serious harm? Most likely yes because mens rea can be transferred within one crime. It is the same whether it is Benny or his head teacher. ➢ Could Betsy be criminally liable? No, she couldn’t because she was genuinely convinced it was a hoax. 2.3 Read the following scenarios and be prepared to answer the questions which follow: Vera is terminally ill and in chronic pain. At her request, Doctor Smith administers a lethal injection in order to end her life (and therefore her suffering). Vera is terminally ill and in chronic pain. At her request, Doctor Jones administers an injection which will ease her pain. They both know that the drug will (barring some unforeseen intervention) kill her. ➢ Did Dr. Smith intend to kill Vera? Did Dr. Jones? If there is a difference in the legal analysis of the two cases, is it a justifiable difference? Yes, they both intended to kill Vera. Dr Smith with direct intention and Dr Jones with oblique intention....