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Criminal practice coursework
"A result foreseen as virtually certain is an intended result." Per Lord Steyn in Woollin 1999. Lord Steyn’s assertion concerns the concept of intention in criminal law. It constitutes the necessary mens rea of many offences, but the meaning of intention has not been defined in any statute. Despite the common law position on intention being regarded to be finally settled in Woollin1 it is still subject to much criticism among academics.
Intention can be direct or indirect. Direct intent does not raise problems as it corresponds with the ordinary meaning of the word. Consequently, where an intention is a requisite of mens rea of an offence, the defendant would be found guilty if he actually desired a particular result. An accused may also be found guilty if he had not desired a particular result, but that result was virtually certain (barring some unforeseen intervention), and the defendant had known that it was so.
In order to fully appreciate the Woollin’s definition, it has to be viewed in the context of Hyam v DPP, Moloney, Hancock and Shankland, and Nedrick. specifically three aspects of the definition need to be examined: probability of result, relation between foresight and intention and the scope of the courts’ discretion.
It has been widely accepted that an intention is a legal term rather then moral. thus intention is not an equivalent to premeditation, motive or desire. A person may commit an offence on impulse, out of compassion, or as a by-product of achieving another aim against or irrespectively of his will, and yet intend the prohibited consequence. Accordingly, indirect intent has been described by reference to degree of likelihood of the occurrence of a result as an outcome of the defendant’s actions. In Hyam the jury were asked to consider whether the consequence of the accused conduct was merely highly probable to occur. Moloney suggested that the jury should ask themselves if the result was a natural consequence of the defendant’s act.In Hancock and Shankland Lord Scarman recommended that the greater the probability of a consequence, the more likely it is that the consequence was foreseen. Eventually, it was established in Nedrick and approved in Woollin that only virtual certainty (barring some unforeseen intervention) could suffice.
Section 8 of the Criminal Justice Act 1967 provides that the test on intention is subjective and evidential. Probability of result must not imply the defendant’s actual foresight, however may be an evidence of it. Furthermore, foresight does not equate to intention. It is for the jury to decide in view of all the evidence whether the accused intended the foreseen consequence. Except for an unclear dictum in Hyam, whereby a foresight of a harm by the defendant was held to be an intent, which was later held to be wrongly decided, all judgements in the discussed cases were consistent in that the an assumption of intention should not be simply drawn from the foresight but rather be subject to the rule of evidence. However, the scope of the discretion entrusted in a jury slightly differs in the judgements. thus, providing the jury were satisfied that the result was sufficiently foreseeable and the defendant has appreciated that it was the case, they were entitled to infer (Moloney), conclude (Hancock and Shankland), infer (per Lord Lane CJ in Nedrick), and finally find (Woollin) that the result was intended. The main flaw of the Woollin’s guidelines is that they do not really explain the intention but barely direct the jury on when it might be present. Even though Lord Steyn concluded that ‘A result foreseen as virtually certain is an intended result’20, in fact the jury may only find it to be so. This flexibility allows moral issues to affect legal reasoning. In practice a jury would be reluctant, for example, to convict for murder a person acting from a good motive (as in Steane where the defendant broadcast Nazi propaganda aiming to save his family from a concentration camp) or to acquit somebody who they see blameworthy even though the virtual intention cannot be proved (e.g. a terrorist who had given a fair warning before killing the victims). Although in common sense it seems to be fair, it does not serve the clarity and consistency of the law. It could be suggested that rather then focusing on such nuances as whether intention might be inferred or found the courts should determine when such a finding ought to be made. Moreover, arguably, the issue of moral guilt should be introduced to the criminal law explicitly, for instance by developing available defences such as duress, and not through the back door of stretching the law. This could help to avoid necessity of inventing artificial ways to acquit defendants in cases like Re A (Conjoined Twins) where the doctors saving life of a Siamese twin would according to the existing law be found to ‘intent to kill’ the other one.
Ormerod argued that it is illogical that virtual certainty should be a necessary condition of the foresight as it could lead to an acquittal of somebody who mistakenly thinks that a prohibited result is virtual certainty and he sets up to bring it about, but because it in fact the consequence was not inevitable, he could not be found as intending it. Furthermore, the virtual certainty direction does not encompass situations where a prohibited result is a side-effect (but not pre-condition) of achieving another aim if the defendant was to succeed in accomplishing his primary purpose. Therefore, as suggested by Pedain, the focus should be placed in acceptance of the consequences rather then the degree of the foresight. In conclusion it could be suggested that, despite all the efforts of the House of Lords, the law on intention still remains unclear and ambiguous. Fortunately this is to be remedied by the proposed reform of the criminal law, whereby the Law Commission recommends that acting in order to achieve a result, or an awareness that the result would occur in ordinary course of events upon achieving some other result, actually amounts to intention. Consequently, the test on finding an intention would be substantial. However, embracing situations like the one discussed by Pedain, would leave foresight of probability in the field of recklessness.
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