Introduction
In English criminal law, the concept of intention forms a cornerstone of mens rea, the mental element required for many serious offences such as murder. The courts have grappled with defining intention, particularly distinguishing between direct and oblique (or indirect) forms, through a series of landmark cases. This essay critically discusses the statement that the courts have satisfactorily clarified intention, rendering it unproblematic. It argues that while significant progress has been made, ambiguities persist, leading to ongoing challenges in application. The discussion will explore the historical development of the definition, key judicial tests, and criticisms, drawing on case law and academic commentary. Ultimately, the essay contends that the law remains somewhat unclear, affecting consistency in judicial outcomes.
The Historical Development of Intention in Criminal Law
The definition of intention has evolved significantly through common law, reflecting the courts’ attempts to balance legal certainty with the complexities of human motivation. Initially, intention was often equated with foresight of consequences, but this proved inadequate for nuanced scenarios. A pivotal shift occurred in the 1980s with cases addressing murder, where intention to kill or cause grievous bodily harm is essential (Ashworth, 2013).
One early milestone was R v Moloney [1985] AC 905, where the House of Lords distinguished direct intention—where the defendant aims for a specific result—from oblique intention, involving foresight of virtually certain consequences. Lord Bridge’s guidelines emphasised that juries should consider whether death or serious harm was a natural consequence and if the defendant foresaw it as such. However, this formulation was criticised for conflating intention with foresight, potentially broadening the scope unduly (Simester et al., 2019). Indeed, the vagueness led to further clarification in R v Hancock and Shankland [1986] AC 455, where the Lords stressed that the probability of consequences must be overwhelmingly high for intention to be inferred.
These developments aimed to provide clarity, yet they highlighted initial uncertainties. For instance, in Hancock, the defendants’ act of dropping concrete from a bridge was not deemed intentional murder due to insufficient foresight, illustrating how probabilistic assessments can complicate jury directions. Academic sources note that this evolution, while progressive, introduced interpretive challenges, as judges must navigate subjective mental states without direct evidence (Herring, 2020).
The Woollin Test and Its Implications for Clarity
The current leading authority on oblique intention is R v Woollin [1999] 1 AC 82, which refined earlier tests into a more structured framework. Here, the House of Lords held that a jury may find intention if the consequence was virtually certain and the defendant appreciated this certainty. Lord Steyn’s model direction states: “If you are satisfied that the defendant foresaw that consequence as virtually certain, you may find that he intended it” (Woollin, 1999). This replaced Nedrick’s [1986] 1 WLR 1025 reference to “moral certainty” with “virtual certainty,” arguably enhancing precision.
Proponents argue this test satisfactorily defines intention, providing a clear threshold that avoids over-inclusivity. For example, in Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147, the Court of Appeal applied Woollin to justify separating conjoined twins, where death was virtually certain but not the primary aim, demonstrating the test’s applicability beyond murder (Ashworth, 2013). Furthermore, the Law Commission’s reports have endorsed this approach, suggesting it aligns with public perceptions of culpability (Law Commission, 2006).
However, the permissive language—”may find”—introduces discretion, which can lead to inconsistency. Critics, such as Norrie (2005), contend that Woollin perpetuates ambiguity by not mandating a finding of intention even when virtual certainty is established. This discretion might allow juries to acquit based on moral judgments rather than strict legal criteria, undermining predictability. Typically, in cases like R v Matthews and Alleyne [2003] EWCA Crim 192, the Court of Appeal upheld Woollin but noted difficulties in directing juries on foresight versus desire, highlighting practical problems in courtroom application.
Criticisms and Ongoing Problems in the Law of Intention
Despite these judicial efforts, the law on intention is not entirely unproblematic, as evidenced by persistent criticisms regarding clarity and application. One major issue is the overlap with recklessness, particularly in oblique intention scenarios. In Woollin, the test borders on Cunningham recklessness, where foresight of risk suffices, potentially blurring distinctions (Simester et al., 2019). This is problematic in offences requiring intention, as it risks convicting defendants for less culpable states of mind.
Moreover, the subjective nature of intention complicates proof, relying on inferential evidence from actions. Herring (2020) argues that this evidential burden can lead to unjust outcomes, especially in cases involving diminished responsibility or intoxication, where intention might be obscured. For instance, in R v Heard [2007] EWCA Crim 125, the defendant’s drunken state raised questions about whether sexual assault required specific intent, exposing gaps in the framework.
Academic discourse further reveals limitations; Child and Ormerod (2017) suggest that the courts’ incremental approach has not fully addressed philosophical debates on intention, such as whether it encompasses ulterior motives. The absence of statutory definition exacerbates this, contrasting with jurisdictions like Australia, where codes provide clearer guidelines (Bronitt and McSherry, 2017). Generally, while the courts have advanced clarity, these issues indicate that the law remains somewhat problematic, inviting calls for reform from bodies like the Law Commission (2006), which proposed codifying intention but noted political hurdles.
Arguably, the statement overlooks these nuances, as intention’s definition, though improved, still poses challenges for legal practitioners and students alike. Evidence from case law shows that appeals often arise from misdirections on intention, underscoring ongoing uncertainties (e.g., R v Jogee [2016] UKSC 8, which indirectly touched on joint enterprise and foresight).
Conclusion
In summary, the courts have made commendable strides in defining intention through cases like Moloney, Nedrick, and Woollin, establishing a framework centred on virtual certainty that addresses many earlier ambiguities. However, the permissive elements of the Woollin test, overlaps with recklessness, and evidential difficulties render the law not entirely clear or unproblematic. These issues highlight the need for potential statutory intervention to enhance consistency. Implications include risks of inconsistent verdicts, which could undermine public confidence in the criminal justice system. Therefore, while the definition is satisfactory in broad terms, it falls short of being wholly unproblematic, reflecting the inherent complexities of mens rea in English law.
(Word count: 1,078, including references)
References
- Ashworth, A. (2013) Principles of Criminal Law. 7th edn. Oxford: Oxford University Press.
- Bronitt, S. and McSherry, B. (2017) Principles of Criminal Law. 4th edn. Sydney: Thomson Reuters.
- Child, J. and Ormerod, D. (2017) Smith, Hogan, and Ormerod’s Essentials of Criminal Law. 2nd edn. Oxford: Oxford University Press.
- Herring, J. (2020) Criminal Law: Text, Cases, and Materials. 9th edn. Oxford: Oxford University Press.
- Law Commission (2006) Murder, Manslaughter and Infanticide. Law Com No 304. London: The Stationery Office. Available at: https://www.lawcom.gov.uk/app/uploads/2015/03/lc304_Murder_Manslaughter_and_Infanticide_Report.pdf (Accessed: 15 October 2023).
- Norrie, A. (2005) ‘Between orthodox subjectivity and critical autonomy: the idea of intention in English criminal law’, in Norrie, A. (ed.) Law and the Beautiful Soul. London: GlassHouse Press, pp. 67-89.
- Simester, A.P., Spencer, J.R., Sullivan, G.R. and Virgo, G.J. (2019) Simester and Sullivan’s Criminal Law: Theory and Doctrine. 7th edn. Oxford: Hart Publishing.
