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‘To understand contemporary criminal law one has to put it in relation to other times. To imagine that we can understand the injustices that criminal law may produce by merely looking to our times ignores the fact that the present can’t stand on its own.’ Contemporary Issues on Homicide.

Many offences need intent in order to constitute the mens rea of the crime such as murder, and the same is also true about criminal attempts, “grievous bodily harm", [1] and other offences. The theory is that a person’s purpose in her or his actions is to achieve a specific result. Murder and manslaughter subject to the same actus reus and that is the unlawful killing of a person. In order to distinguish Murder from Manslaughter it is important to establish that thoughts and intentions to cause serious physical harm were behind the wrongful act. The Homicide Act 1957 [2] recognizes that not only intention to kill but also to cause serious physical harm will also be sufficient to form malice aforethought. The principle of mens rea is required and consists of different levels of culpability which determines and ensure that only the morally guilty persons punished for behaviour deemed wrong. The work of Jonathan and Martin [3] defines mens rea as: “The state of mind that the prosecution must prove a defendant to have had at the time of committing a crime in order to secure a conviction." As Lord Halisham, [4] rules, a state of mind and a dirty act are required for a criminal offence to be committed. It is observed that intention as a mens rea is required and found in many offences such as homicide and violence, sex offences, and death or injury cases. The definition of intention seems to have been the subject of a prolonged legal dispute, debate and cause of many criticism of English Criminal law for failing to provide a statutory or legal definition for intention. However, in the case of Cunliffe v Goodman, [5] the judge has ruled that the word intention and desire are to be dealt with separately, where it was confirmed that intention is a state of affairs where “a person does more than merely contemplate". The fact is that intention is one of the three states of mind which on its own can constitute the necessary mens rea for a criminal offence. Therefore, it is clear that much of the academic literature and materials in this field show that issues of intention in criminal law is far from settled. However, The Law Commission report presents a definition, stating that a person chooses to take an action with intent desiring the end result when “I. It is his purpose to cause it; or II. Although it is not his purpose to cause that result, he is aware that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result." [6] Although indirect intention also known as (Oblique intention) is only related to murder cases in which the defendant with a specific intent in his mind to achieve, that leads to other outcome. This other outcome was not the direct intent of the consequences but have an oblique intent to cause these consequences. However, the presence of virtual certainty of the consequences of this latter form of intention is important. [7] Further, and on examining the development of intention as the current law stands, intention types varies that structure the mens rea of offences. The fact that many definitions of offences show that proof of intention is essential, leads to the expectation that the understanding of the word has been established. But the fact is that, there are still conflicting cases, different and uncertain judicial view points. [8] 9

Many academics and thinkers in this area of law have long been engaged and shown concern of the concept of intention. They often attempt to come up with a formula that combines, or connect thinking and desire to each other. [10] And the fact that the literature in this area is large, has led the exact meaning of this legal term (Intention) to be blurred. Further the legal amendments and explanations of this term have been subjected to much academic inspection, juridical and theoretical discussion. [11] There are several forms of intention, the main two being direct intent, and oblique (or indirect) intent, therefore, intention is the mens rea that this paper will be examining. Therefore, this paper adopts a strategy to make use of recent work to examine various approaches to the concept of intention in English Criminal law. However, working within resent frames of reference, authority, and recent academic critiques, this paper will attempt to assess different understandings, logic of the orthodox approaches of intention, direct and oblique intent. [12] This paper also will try to examine the test of guilt found on simply a subjective calculation of what is in a defendant’s, or deciding the degree of fault by using objective tools. This essay will also assess the decision of the House of Lords in Woollin and establish to extend has been helpful in clarifying the meaning of the concept of intention in English criminal law to ensuring that punishment for wrongdoing is justified. [13] 

In its general definition intention is a foresight of certain consequence and desire on the side of the defendant to act or decide not act and as a result those consequences happen. However, it seems that many rules and tests objective or otherwise have governed this issue. For instance in DPP v Smith, [14] where it was ruled that an individual foresees and intends the natural and probable outcome of the individual’s actions. Furthermore, it is established that many rulings and acts such as the Criminal Justice Act (1967) now allow the jury to engage in inferring from all the evidence. [15] As the ruling in R v Belfon states “Foresight and recklessness are evidence from which intent may be inferred but they cannot be equated...with intent". [16] The forgoing discussion finds that different terminology is used to represent various forms of intention in criminal laws worldwide. A person is thought to have aimed for a particular outcome to come about if that person knows that, provided a number of activities continue and desires it to happen. Therefore, justifying that a severe guilt to be awarded with a harsh punishment, when the two mentioned element is proved to have been present in the accused’s mind. Many thinkers are of the view that, when a person prepare to act and take steps to commit a crime is thought to represent more danger to the public than a person who acts inadvertently, or out of a sudden such as taking an opportunity to steal, injure another in anger. Therefore, the policy issue that the administers of criminal justice system face is that, execution of certain activity includes the awareness that in carrying out such activity there is a probable outcome, and that the decision to continue with it regardless of whether it is desired or not, leads to the belief that the consequences are intentional. In R v Mohan it was ruled that direct intention imply that, “aim or purpose" – “a decision to bring about, insofar as it lies within the accused’s power, the commission of the matter whether the accused desired that consequence of his act or not." [17] Further, in the case of indirect (Oblique) intent, a person is thought to have an indirect intention provided they foresee the certainty of a particular outcome of the person’s act, even if they did not wish that outcome. It is argued that the defendant does not enjoy the right to choose which steps he or she has intended or not, therefore the defendant is considered to have intended all the steps he or she has taken to the achieve of all outcomes. For example, if A wishes to evict B who is a tenant and refuse to leave, dispense petrol into the house and set the house on fire in order to frighten B and in doing so B get killed. However, A may not have desired B's death, but it has to be argued that, it was foreseeable that his action would lead to harmful contact with his or her tenant. This distinguishes between the direct intention which is the direct purpose of the plan, and the oblique intention which deals with all the other steps in between.

The concept of intention is worth further examination, because its meaning and use has caused doubts as to what is its exact applications. At least two conceptions are identified important to the law. As Norrie, [18] puts it, the first one is the ‘orthodox subjectivist’ understanding which has an important place in the literature of law. It is a recognized, factual, definition based more on the mental states of the accused. And the second one appears to have more ethically firm basis, and less emphasis on factual and mental states. This latter view of the concept of intention is more engaged with the person’s intention morally, regardless of the person contemplate an intention, divulging mental control of the ensure action. It seems that this latter approach is well accounted for in the law; continue to influence judges’ decisions, and often in disagreement with the first understanding. For the subjectivist view of intention, intending to do something is to aim to perform it. And it means allowing a person’s mind to focus on a particular activity and employing one’s action to produce that particular purpose. Reflecting on the above, it can be argued that in most occasions it will be obvious that a particular end was the direct product of a person’s intention. However, there are exceptions in which result and intention were not directly linked and that the end was a method to achieving a particular purpose or a by product of such end. [19] Where the end is desired, and deploys the means required to achieve it aware of the consequences that it produces, then it is agreed that the person intends the means in addition to the end regardless of the desirability of the end. And a similar conclusion can be reached where the side-effect is established to be a sure by-product of, achieving one’s purpose. [20] This argument goes with that of the Hyam judgement, [21] where it was ruled that intention “include the means as well as the end and the inseparable consequences of the end as well as the means..." [22] However, thinkers such as Duff has criticised the orthodox subjectivist believing that it pays no attention to how people comprehend the wrongful activity. For the orthodox subjectivist moral judgement consists of two elements; harm makes up the objective element of the moral judgement, and fault the subjective element based on the objective element consequences’ foreseeability, and intention. Therefore, for Duff, this approach is incomplete for it fails to reflect the nature of our moral judgments; therefore, moral quality of what was intended is essential. However, intention to do a wrongful act may not always constitute a criminal act unless accompanied by a moral wrongdoing. This show that intentions have in them bad moral attitude and that the person’s motivation should carry more weight than the exact form of intention itself. [23] Therefore, when in R v Moloney, [24] the defendant starts an argument and held a contest with his stepfather who was quickest in loading a shotgun and fire, which resulted in the stepfather being shot dead and Moloney was charged with murder. In defence he stated that he did not intend or crossed his mind that its possible outcome would be to kill or injure his stepfather. It was held that there was not such a rule that foresight of probable outcome was to be equal to the required intention for a crime of specific intent. [25] Instead, it was ruled that the issue of foresight of consequences was to be dealt with under the provision of the law of evidence. Lord Bridge referrers to the example of a man get on an aeroplane knowing to be destined for Manchester. He seriously demonstrates his intention to land there. Such intention cannot simply be inferred from such evidence. However, it is established that some cases require a jury be directed in reference to foresight of consequences, and the following guideline followed, “...was death or very serious injury a natural consequence of the defendant's voluntary act?...did the defendant foresee that consequence as being a natural consequence of his act?" [26] If the answers to both questions were established positive, only then, it would be appropriate to infer that the accused had intended the outcome.

In R v Hancock & Shankland, [27] miners who were on strike standing on a bridge knowing a taxi carrying other miners breaking the strike would pass under a the bridge threw a concrete block onto the motorway below, it struck a car killing a driver. The defendants claimed that their intention was only to obstruct the road but not to kill or cause grievous physical harm. The trial judge then provided direction to the jury on the basis of Lord Bridge's guideline in Moloney. The jury then returned a conviction of murder verdict, and it was appealed. [28] the decision was appealed and the House of Lords substituted the murder verdict for manslaughter. The ruling expressed concern that the Moloney guidelines on the connection between foresight and intention were inadequate, because it was likely to mislead the jury. Then the jury felt that it needs to consider whether death was a natural outcome of the act, and did not need to consider the degree of probability. The issue of probability then were raised and it was focused on the particular harm that would result from what is done. In R v Hancock & Shankland [29] the ruling established that the greater the probability of a consequence happening, the more likely that it was foreseen, and therefore, the more likely it was also intended. In other words, foresight was to be looked at as evidence of intention, not equated with it.

In Nedrick case a child died as a result of a petrol bomb put through the letter box without prior warning. The defendant claimed that the reason for doing that was to frighten the women in the house. The court convicted the defendant of murder and it was appealed. The Court of Appeal overturned the murder conviction and substituted for manslaughter. The Court of Appeal through its judgment stated that the jury in determining whether the defendant had the necessary intent should consider the likelihood of the consequence which resulted from the defendant's voluntary act, and whether the consequence was foreseen by the defendant. However, if the defendant did not know that the conspectuses were probable to result from his act, he cannot be considered to have intended it. And if he did but the risk was only small, then it would be easier for the jury to infer that he had not intended it. However, its is argued that if the jury were sure that the defendant realised at the material time that the death or serious bodily harm was a virtual certainty, then that is a fact from which the jury may find it easy to infer intention. [30] 

However, the case of Woollin, [31] is regarded as the most important as the current law and authority on the issue of foresight of consequences and intent. However, in Woollin the defendant throw his child across the room on to a hard surface. The baby suffered a fractured skull and died. Although, not only intention lack a clear definition in regards to the required elements of the mens rea, but it is often left for the jury to decide whether the defendant did intend to carry out the acts. In light of this, and in Woollin, the trial judge had directed the jury that they might infer intention if they were satisfied that in throwing the child, the defendant knew that there was a considerable risk that he would cause serious bodily harm to the child. The jury returned a conviction of murder. The defendant appealed on the basis that the jury were misdirected. It was argued that in referring to “substantial risk" [32] the judge had confused the jury by his comments about a substantial risk, and that should have followed the Nedrick guidance and referred to the virtual certainty. However, when the case reached the House of Lords overruled the Court of Appeal’s decision and substitute the conviction from murder to manslaughter, and the judge’s direction was considered to a material misdirection. The House of Lords recommended the following guidelines to the jury as the current law on this issue; ...the jury may only find intent to do serious injury if they are satisfied (a) that serious bodily harm or death was a virtual certain outcome of D is voluntary act and (b) that D appreciated that to be the fact. [33] Also, and despite expressing their approval and appreciation of the guidelines given in Nedrick, the House of Lords decided to change the word infer in the guidelines to find therefore, [34] The above findings show that the case of Woollin has been a great help in settling some of the uncertainty in the law which should help to resolve uncertainties in future cases.

In light of the above analysis and findings, the orthodox subjectivist view seems to derive their thinking from a formal, psychological, factual point of view on the defendant’s mental control of actions. On the contrary, the former view is challenged by a morally substantive view that worries more about the moral principles that an action tends to embrace and the mental state that it is attached to it. However, it is argued that the former approach seems to provide a more precise and sound structure for dealing with intention by breaking away from the rather problematic moral issues the latter determine to find. Therefore, it has to be argued that, it sounds more reasonable to work on issues such as what the person’s imagination and thinking were than how a person understand and recognise wrongdoing in his actions. It is relatively obvious that the orthodox subjectivists have a firm belief in this view, and also to a great scope be the influence on the modern law on direct and indirect intention. However, the orthodox subjectivist view does seem to attract some criticism. As Norrie, [35] puts it, in Woollin, Lord Hope in the House of Lords, talked about cases of what is called ‘indiscriminate malice’. It was stated that, cases of this nature simply would not fit within the structure of an orthodox subjectivist view, although these cases may qualify to find guilt. And that, given the hypothesis that if a person kills and satisfies the required mental state, having a morally good motive behind it as it is in cases of euthanasia. This therefore leads to the belief that the orthodox subjectivist view that insists on relying on mental states like intention would jeopardise this issue.

In conclusion, However, in Hancock [36] the judgement criticised Moloney Guidelines that found the need for directions to be given to juries, despite the fact that the judges in this case refused to rule any new guidelines in their place. The judgement on the foresight of consequences, and the direction, where appropriate, is applicable to all offences and not just murder. The case of Nedrick, [37] was the recognized authority on the current law on foresight of consequences. This case ruling laid the guidelines that only granted juries the power to infer intent if the consequences were (virtually certain) from the defendant’s actions. And it is found that, the subsequent case of Woollin developed these guidelines, for example, the apply ‘find’ instead of ‘infer’, but it has to be argued that the guidelines established in Nedrick still represent most of the law in this area. As Norrie, [38] argues that on one hand, all that woollin amends in addition to the formulation in Nedrick is that the jury is allowed to infer intention, therefore should be used, and the requirement of foresight of virtual certainty is confirmed. Norrie also argues that Woollin seems to have settled some of the controversies surrounding law by changing the problematic guidelines. It is believed that Woollin, which is the current law authority in this field, seems to favour an orthodox subjectivist view in agreement with the intention of the law in Moloney. [39] In light of the above, it can be found that the law concerning intention seems to have changed and developed in recent years. And certain ambiguities that existed before no longer continue to be the case. However, thinkers and academics, despite their appreciation of the clarity of the law in this area, some consider that some issues remain unresolved, such as the jury entitlement to find intention if the consequence was virtually certain and the fact that are they, or should they be bound to? However, other academics question that in case of the jury is under an obligation to find intent having the defendant satisfied the guidelines, then this would lead this area of law to be covered by direct, rather than oblique, intent. [40] Further, as Wells points out the Criminal Law Revision Committee [41] report on the offences against the person shows that it takes a pessimistic view of the test that is based on knowledge of a high probability of death that would occur from one’s actions. The reason being that a test based on terms of probability was going to be so uncertain in result. However, the Committee recommended that it was not correct to choose intent only to cases where the defendant wishes a certain outcome, favouring to include cases where the defendant is aware that a particular result will follow from his action. Therefore the committee believed that a person intends an outcome when he or she wishes for a certain outcome to come about from his or her acts, or although the person does not hope for a particular result to follow, but is aware that steps he or she takes may do so. It is a fact that t many academics and legal bodies have long debated and called for a codification of the criminal law. In this regard and in particular to the definition of murder, in The Law Commission Report [42] proposed that, a person who kills another person with an intention to kill or to cause serious injury in awareness that he or she may cause fear of death that might result in a person killed is guilty of murder. The fact that the issue of intention in murder cases plays a decisive role has led to be the subject of much debates and security. For this reason many legal bodies and authorities have had to give the issue of intention a constant and careful consideration throughout its history. Therefore, and in light of the above the Law Commission felt it necessary to come back to the definition of intention suggesting that an individual acts with intent with respect to a particular outcome when his or her purpose is to bring bout that outcome, or though, it is not his or her purpose to bring about that result, is aware that involving in actions and if succeed in his purpose would cause or risk some other results other that he intended. In the Law Commission report [43] recommends an approach to the meaning of intention and states that in many offences regardless of fatality to the person, the traditional use of bodily harm was to demonstrate the kind of harm that must be intended. However, it is realised that the courts in recent years have shown a desire to include a recognised psychiatric disorder. Furthermore, the Court of Appeal makes use of the word injury in order to show the capacity of the old term bodily harm and its ability to derive from the distinction between body and mind injuries although it might not be able to have a firm position in philosophical or legal analysis. The criminal law has a long history dating back to the ancient time. And it reflects the proceedings and directions that different government have taken in order to deal with events and circumstances that arisen in need of new measures to defend the interests of state and citizen alike. [44] The fact is that many of the literature on this issue of mental element in crime introduce amendments to the definition of intention that is relevant to offences involved or based on intention. It is believed that an individual is regarded to intend a particular consequence of his actions if he really intends that consequence or in no substantial doubt that the actions will lead to that consequence. However, the law on the issue of intention seemingly had become clouded, but the following case of Moloney, [45] finally led to the appreciation of the link between foresights of consequences, and gave the ruling on the foresight of consequences enabling the jury to reflect on when dealing with intent. This approach was to be treated as a legal foundation to be pursued in all future cases including the latest case of Woollin. [46] 

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