intention (idea)

This writeup applies to English law

Basics of Intention

• The mens rea of murder is intention to kill (express malice) or cause GBH (implied malice) as stated in the case of Moloney (1985)
• Intention is entirely subjective (i.e. what was the defendant (def) thinking at the time?)
• There are 2 types of intent; direct and indirect/oblique
• Direct intent is where the consequence is the main aim of the def
• Indirect intent/oblique is where the death is not the def's main aim, but he realised it was virtually certain to happen
• Both types of intent are sufficient to find the mens rea of murder exists
• Nedrick (1986) is the current judicial direction to the jury on how to decide whether the def indirectly intended his actions. It says:

  Was death/GBH a virtual certainty as a result of the def's actions? (Objective question)

  If so, did the def, himself, realise death/GBH was virtually certain? (Subjective question)

  If yes to both, the jury can* infer he must, therefore, have indirectly intended death/GBH

  _{*Section 8 of the Criminal Justice Act 1967 says a jury must take all evidence into account, not just evidence of intention}

• Woolin (1998) later confirmed this as the model direction but changed the word 'infer' to 'find' as it would be easier for the jury to understand

Development of the Law

The meaning of intention has been discussed within murder cases but actually applies to any crime with the mens rea of intention, e.g. intention to resist arrest, assault, wounding or any attempted crime.

Is intention as blameworthy as foresight?

In the case of Hyam (1971) it was said that the mens rea of murder was:

• Intention to kill
• Intention to cause GBH
• Foresight that death was highly probable
• Foresight that GBH was highly probable
>

Glanville Williams said:

On a night out drinking with friends you may foresee a hangover the morning after, yet the hangover is not desired or could be said to be your intention.

The mens rea of murder stayed the same until the case of Moloney (1985), this case was appealed to the House of Lords who then stated that the mens rea of murder is no longer that stated in Hyam. It was now only intention to kill or cause GBH, simply foreseeing it would result in manslaughter

Then a problem came about: how do the jury decide whether a def indirectly intended death/GBH or merely foresaw it? This caused lots of trouble for juries and has led to many misdirections by judges.

1. In Moloney the HOL said to help the jury decide indirect intent they should be directed as follows:

   Was death/GBH a natural consequence of the def's actions?

   • If yes, did the def himself realise death/GBH was a natural consequence of his actions?
   • If yes, the jury can, if they want to, infer he must therefore have indirectly intended his actions; but they don't have to.

2. But this wasn't popular and was changed by the HOL in the case of Hancock & Shankland (1986). The case appealed to the HOL who confirmed the mens rea of murder as intention to kill or cause GBH as stated in Moloney but they decided to get rid of the 'natural consequences direction' and replace it with...

   The greater the probability of a consequence occuring, the more likely it was foreseen. The more likely that the consequence was foreseen, the more likely the consequence was intended.

   This direction wasn't liked either, it confusing for juries. It also uses the phrase 'foreseen' which is only relevant for manslaughter.