Approaches to Mens Rea
1. Intention
• Smith [1961]:
◦ Test: A result is intended if it is the aim or purpose of the act or omission.
◦ Objective Test: Initially, the test was based on what a reasonable person would foresee.
• Duff’s ‘Test of Failure’ (1990):
◦ Test: Asks if the defendant would feel they failed if the result they intended did not happen.
Two Types of Intention:
• Direct Intention:
◦ Definition: D directly intends a result if it is their aim or purpose.
◦ Case: R v Moloney:
▪ Per Lord Bridge: The jury should decide if D intended the result by considering whether it was a natural consequence of their actions.
• Oblique Intention:
◦ Definition: D has oblique intention if they foresee a result as a virtually certain consequence of their actions, even if it was not their primary aim.
◦ Case: R v Nedrick:
▪ Test: Whether the result was virtually certain and whether D appreciated this certainty.
◦ Case: R v Woollin:
▪ Test: Updated to ‘virtual certainty’ where D must have foreseen the result as virtually certain to occur.
Subjective and Objective Tests:
• Objective Test:
◦ Case: DPP v Smith (1961):
▪ Facts: D accelerated his car, causing a police officer to fall off and die. The objective test was applied.
▪ Outcome: Conviction based on the objective test of foresight.
• Subjective Test:
◦ Legislation: Section 8 of the Criminal Justice Act 1967:
▪ Reversal: Changed the focus from objective foresight to subjective intention, meaning it’s based on what the defendant actually intended.
• High Probability and Subjective Test:
◦ Case: Hyam v DPP:
▪ Test: Determined by whether D foresaw the consequence as highly probable.
• Foresight of Probable Consequence:
◦ Case: Moloney:
▪ Test: Evaluates if the result was a natural consequence of the defendant’s actions and if they foresaw it.
• Degree of Probability:
◦ Case: Hancock & Shankland:
▪ Test: Emphasises the degree of probability of the result occurring.
• Virtual Certainty Test:
◦ Case: Nedrick:
▪ Test: Requires that the result was a virtual certainty and that D recognised this.
◦ Current Test:
▪ Case: Woollin:
▪ Test: Virtual certainty remains the standard for oblique intention, focusing on whether D foresaw the result as virtually certain.
Summary
• Direct Intention: Aims to achieve a specific result; determined by the purpose of the act.
• Oblique Intention: Recognizes a result as a virtually certain consequence, even if not the primary aim.
• Objective Test: Previously focused on what a reasonable person would foresee.
• Subjective Test: Under Section 8 of the Criminal Justice Act 1967, the focus is on the defendant’s actual foresight and intention.
• Degrees of Probability: Includes various tests like high probability, foresight of consequence, and virtual certainty to determine the degree of intention.
Hyam v DPP [1974]
1. Facts:
• Hyam set fire to a newspaper and placed it in a letterbox.
• The fire spread, resulting in the burning down of a house and the deaths of two children.
• Hyam’s intention was to frighten, not to kill.
2. Outcome:
• Hyam was convicted of murder.
• Despite not intending to kill, the court found that there was a high probability that death would occur due to the fire.
3. Impact and Analysis:
• Recklessness vs. Intention: The case highlighted the issue of distinguishing between recklessness and intention. The court defined recklessness as foresight of a high probability of harm, which blurred the line between recklessness and intention.
• Fair Labelling: There was a debate about fair labelling in criminal law. Intentionally causing harm is seen as more blameworthy than recklessly causing harm. Hyam's case illustrates the challenge of properly attributing culpability when the defendant did not have a direct intention to kill but acted in a way that was highly likely to result in death.
• Legal and Moral Implications: The case raised concerns about how the law categorises different levels of culpability and the fairness of labelling acts as murder when the intent to kill is absent but the consequences are severe.
House of Lords Decision: The House of Lords upheld the conviction but provided different rationales:
• Majority Opinion: The majority (3:2) held that foresight of the probability of death was sufficient for murder.
• Varying Standards: Within the majority, there were different standards articulated:
◦ One view focused on foresight of the probability of death.
◦ Another emphasised foresight of a high probability of death.
◦ A third considered foresight of a serious risk of death.
Legal Uncertainty: The differing opinions within the House of Lords reflected the legal uncertainty and debate over the appropriate threshold for establishing the mens rea for murder. This case highlighted the challenges in distinguishing between different levels of culpability and the implications for fair labelling and sentencing in criminal law.
Intoxication and intent
R v Moloney [1985]
1. Facts:
• The defendant (Moloney) and his stepfather were drinking heavily.
• During a drunken argument, Moloney accidentally fired a gun, killing his stepfather.
2. Outcome:
• The Court of Appeal substituted Moloney's murder conviction with manslaughter.
• The court held that Moloney did not have the necessary intention for murder.
3. Impact and Analysis:
• Foresight of Consequences: To assess foresight of consequences, judges should ask:
◦ Did the defendant foresee the outcome as a natural consequence of his actions?
◦ Was death or grievous bodily harm (GBH) a natural consequence of those actions?
• Lord Bridge's Perspective:
◦ Lord Bridge stated that foresight of consequences is "little short of overwhelming."
◦ He emphasised that foreseeability and intention are different states of mind.
◦ Foresight of consequences should be used as evidence of intention, rather than equating the two.
• Confusion and Legal Precedent:
◦ This approach created confusion, as it blurred the distinction between foresight and intention.
◦ The ruling took the law back to the complexities seen in R v Smith (1961), which Parliament had sought to clarify through subsequent legislation.
◦ The case highlighted the difficulty in defining and applying the concepts of intention and foreseeability in criminal law.
• Legal Principles:
◦ The ruling in Moloney suggested that foreseeability of consequences can be used to infer intention but should not be directly equated with intention.
◦ This differentiation is crucial for ensuring that individuals are only convicted of murder when they truly intended to cause death or serious harm.
Hancock and Shankland (1986)
Case Overview:
• Facts: Miners on strike threw a concrete block from a bridge onto a motorway below. The block struck a taxi, resulting in the deaths of a working miner and the taxi driver. The miners claimed their intention was merely to block the road, not to cause death.
• Judges’ Approach: The Court of Appeal (CoA) applied the questions from R v Moloney to assess intention:
◦ Moloney Questions: Consider whether the result was a natural consequence of D’s actions and whether D foresaw it as such.
• Decision:
◦ CoA Judgment: Substituted a manslaughter conviction for murder.
◦ Test Applied: The jury should consider the “probability of a consequence” when establishing D’s intent. The higher the probability of the result occurring, the more likely it is that D intended it.
◦ Foresight as Evidence: Foresight of the result was regarded as evidence of intention but not conclusive.
Nedrick (1986)
Case Overview:
• Facts: D poured petrol through a letterbox and set fire to a house, intending to frighten the occupants. The fire led to the death of a child.
• Judges’ Approach:
◦ CoA Judgment: Argued that equating foresight with mens rea (MR) was incorrect.
◦ Decision: Substituted a manslaughter conviction for murder.
◦ Virtual Certainty Test:
▪ The jury could not infer intention unless the death was a virtual certainty and D recognised this certainty.
Virtual Certainty Test
Summary:
• Test: For a finding of intention, the result must be a virtual certainty of which D was aware.
• Implication: The jury should only infer intention if they are satisfied that the result was virtually certain and D appreciated this level of certainty.
Comparative Cases:
• Hancock and Shankland: Emphasised that high probability of a consequence increases the likelihood of intention but foresight alone does not equate to intention.
• Nedrick: Refined the approach by requiring that the result must be a virtual certainty for intention to be established.
Legal Principle: The intention in criminal law is assessed based on the foresight of the consequence being virtually certain, aligning with the principle that intention is not merely inferred from foresight but requires actual awareness of certainty.
R v Woollin [1999]
1. Facts:
• The defendant (Woollin) became frustrated with his baby’s crying.
• He threw the baby across the room, resulting in the baby's death.
2. Outcome:
• The House of Lords substituted Woollin's murder conviction with manslaughter.
• The court confirmed the use of the "virtual certainty" test established in R v Nedrick (1986).
3. Impact and Analysis:
• Virtual Certainty Test:
◦ The court confirmed that the jury should consider whether the defendant foresaw death or serious injury as a virtual certainty of his actions.
◦ This test helps differentiate between intention and recklessness by focusing on the degree of foresight the defendant had.
• Misdirection and Criticism:
◦ The trial judge directed the jury to consider if the defendant realised that his actions created a "substantial risk" of harm, which was criticised as a misdirection.
◦ This direction blurred the lines between intention and recklessness, which are distinct mental states in criminal law.
• Language Change:
◦ The court changed the language from "infer" intention to "find" the necessary intention.
◦ This shift indicates that the jury should not merely infer intention from the circumstances but should find it based on the evidence presented.
• Jury Discretion:
◦ The ruling allows the jury "moral elbow room" to decide whether the defendant acted with the necessary intent, even if the evidence suggests it.
◦ This approach gives juries flexibility to consider the broader context of the defendant's actions and intentions.
• Rule of Evidence vs. Definition of Intention:
◦ The Woollin decision establishes a rule of evidence rather than a strict definition of intention.
◦ If the evidence suggests that the defendant foresaw death or serious injury as a virtual certainty, the jury may find intention but is not obliged to do so.
◦ This approach maintains the presumption of innocence by requiring sufficient evidence to establish intent beyond reasonable doubt.
• Alan Norrie's Commentary:
◦ Alan Norrie suggests that Woollin remains the "last word" on indirect intention to murder.
◦ The case provides a clear framework for understanding indirect intention, balancing legal precision with the need for jury discretion.
R v Matthews and Alleyne [2003]
Case Overview:
• Facts: Two boys threw another teenager off a bridge. The teenager, who could not swim, drowned. The defendants claimed they did not intend to kill or injure him.
• Issue: Whether the defendants had the necessary intention for murder.
• Legal Question: If it was ‘virtually certain’ that the act would result in death, could the jury infer intention based on this foresight?
Judgment:
• Jury Guidance: The jury was instructed that they could find intention if it was established that the result was ‘virtually certain’ and the defendants were aware of this certainty.
• Decision: The case reaffirmed the Woolin test for intention.
• Rix LJ's Comment: Acknowledged that the law had not yet developed a precise definition of intent to murder.
Legal Principle:
• Affirmation of Woolin Test: The court confirmed that intention can be inferred if the result of an action was virtually certain and the defendant recognised this fact.
• Moral Elbow Room: In challenging cases where the defendant did not have a direct intention to cause death, the jury is given "moral elbow room" to find intention if they conclude that the defendant foresaw the result as virtually certain (Horder).
Criticism:
• Uncertainty: Some argue that this approach could lead to uncertainty, as it grants significant discretion to juries, potentially allowing them to find intention based on foresight of a virtually certain outcome.
• Scottish Criminal Law: In contrast, Scottish law often uses the term ‘wicked recklessness’ for such cases, emphasising a different approach to mens rea.
Academic Perspectives:
• Cathleen Kaveny: Argues that intention should be understood as purpose rather than foresight of consequences, suggesting a more purposeful approach to determining intent in criminal cases.