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Mens Rea — Intention Recklessness And Negligence Notes

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TOPIC 2 --- CRIMINAL LAW --- MENS REA MR: the mental element of a crime. Often suggested that MR plays the crucial role of ensuring that only blame-worthy defendants are punished for their crimes. Someone who causes another's death by accident is not as culpable as someone who does so intentionally. It's more complicated than this however; MR does not always correspond to moral guilt --- e.g.:
? Mercy killers (at least morally ambiguous).
? The policeman who had the MR for conspiracy to import drug in Yip Chiu-Cheung
[1995] despite doing so as part of a police sting --- his actions may have been thought of as being morally praiseworthy. As a general rule, intention is seen as the worst kind of MR, then recklessness, hen negligence. INTENTION Definition: in the vast majority of cases, intention should be given its ordinary meaning; in exceptional / borderline cases the jury can be directed that they are entitled to find intention if a result was virtually certain to occur and the defendant realized it was virtually certain to occur. THE CORE MEANING OF INTENTION The HL made clear in the following case that intention should usually be given its ordinary meaning: Moloney [1985]
Facts: M and his stepfather (S) drank heavily at a wedding anniversary party. M and S remained after the party, talking in a friendly way until a shot was heard to ring out at around 4am. M telephoned the police and told them that he had just murdered his father. He suggested that they'd had a disagreement about who was quicker at loading and firing a shotgun. M loaded quicker at which point S challenged him to pull the trigger if he had the guts. M fired wildly, killing S. M was convicted of murder. Lord Bridge
? "The golden rule should be that when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent ... unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury ... some further explanation or elaboration is strictly necessary to avoid misunderstanding."

? [see below on Lord Bridge's further comments on intent]. The courts have not, however, told us what the ordinary meaning of intent is; presumably because they think it to be obvious. The widely accepted view is that the defendant intends a consequence of his action if he acts with the aim / purpose of producing that consequence. NB: it's a high standard because the jury need to be convinced beyond a reasonable doubt. Distinguishing intention and foresight In relation to the core meaning of intention, whether the D's act was likely to produce the consequence is irrelevant. If D shoots at V, a long way away, hoping to kill her but realizing that there was a remote chance of succeeding, D will still have the necessary intention. However, if D believes that it would be impossible to hit V, then it's hard to say that he intended it --- he did not think that his actions could result in her death. The HL has made it clear in a number of cases that foresight of a consequence is not the same as intention, but it is evidence from which a jury may infer intention. Indeed, in Moloney Lord Bridge said the following on the relationship between foresight and intention:
? Where specific intent is required for a crime (e.g. murder) 'the probability of the accused having foreseen the consequences must be little short of overwhelming if the intent is to be established."
? "foresight of the consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs, not to the substantive law, but to the law of evidence."
? "A man is presumed to intend the natural and probably consequences of his acts ...
knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention."
? The judge should invite the jury to consider two questions: "was death or serious injury in a murder case ... a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act?" If the answer to both of these questions is yes, the jury should be told that intention is a proper inference. This dicta was confirmed in the following case (it was not part of the ratio in Moloney). Hancock and Shankland [1986]
H and S were striking miners who pushed a block of concrete off a bridge onto a motorway underneath, killing the driver of a taxi which was carrying a miner to work. The defendants' case was that their intention was not to kill or harm anyone since they thought that the block was positioned over the middle lane when the taxi was being driven in the nearside lane, and that their intention was only to block the road or to frighten.

Court of Appeal: in the context of foreseeability and intent "natural consequence" meant highly likely --- thus, there was not sufficient intent for murder; the Ds were convicted of manslaughter.
? "To intend is to have a purpose or design that a particular consequence be brought about."
? Foresight does not necessarily imply the existence of intention, though it may be a fact from which when considered with all the other evidence a jury may think it right to infer the necessary intent.
? The probability of the result of an act is an important matter [but only a factor!] for the jury to consider and can be critical in their determining whether the result was intended: if the likelihood that death or serious injury will result is high ["little short of overwhelming"], the probability of that result may be seen as overwhelming evidence of the existence of the intent to kill or injure.
? Scarman LJ: "[The jury] may also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended ... The probability, however, high, of a consequence is only a factor." However, see Woollin below, where the emphasis on probability should be discounted --- it's the virtually certain bit that's important. Distinguishing intention and motive The courts have consistently held that motive and intention are quite different. As Lord Bridge stated in Moloney:
? Intention is something quite distinct from motive or desire: "A man who at London Airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit. The possibility that the plane may have engine trouble and be diverted to Luton does not affect the matter. By boarding the Manchester plane, the man conclusively demonstrates his intention to go there, because it is a moral certainty that that is where he will arrive." However, note that motive is relevant to the extent that it is evidence from which the jury can demonstrate intention. BORDERLINE CASES OF INTENTION As we have seen, in the majority of cases it is enough for the judge to direct the jury that they are to give intention its normal meaning and there is no need to give further direction to the jury. An example of a hard case where more direction may be necessary is where a person plants a bomb on a plane, hoping to destroy it in order to claim the insurance money. Although he does not want the pilot to die, he knows that it is a virtual certainty if the bomb goes off in mid-flight.

R v Woollin [1999]
Facts: Woollin lost his tempter and threw his three-month-old son on to a hard surface, killing him. It was not alleged that W intended to kill; the issue was as to intention to cause serious harm. The key question was whether the following direction, proposed by the Court of Appeal in Nedrick [1986] was good law:
? Where it is not enough for the jury to be told to give intention its ordinary meaning, they should be "directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty ... as a result of the defendant's actions and that the defendant appreciated that this was the case." House of Lords: Trial judges should continue to use the Nedrick model --- the following is the test developed by Lord Lane in that case, with Lord Setyn's comments: a. When determining whether D had the necessary intent, it may be helpful for the jury to ask themselves: (i) how probably was the consequence resulting from D's act; (ii) did he foresee the consequence. If he did not, or thought the chances of the act occurring were slight, he can't be said to have intended to bring the harm about. If he thought it were a virtual certainty then it can be inferred that he intended the harm. [Steyn felt these questions may detract from the clarity of the critical direction in (b) --- perhaps unnecessary]
b. Where the charge is murder and where simple direction to the jury is not enough, the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty as a result of D's actions and D appreciated this was the case. [The word 'infer' here may detract from the clarity of the model direction --- Steyn would substitute the words 'to find']
c. Where a man realises that it is inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended the result, however little he may have desired or wished it to happen. The decision is one for the jury to reach on the evidence. [Steyn: the first part of C should not form part of the model direction].
? On this test, the proper result was a conviction for manslaughter and not murder. Where it is not the purpose of the D to cause death / GBH, it will be rare that the D will have the MR for murder; only if the death / GBH was a virtually certain consequence of the D's actions, and the D realized this was so, can the jury find that the D intended death /
GBH. Chart for how to approach PQs on intention:

Was Wasthe it the result result a virtually of the D's certain purpose?
result of D's actions and did D realize that the result was a virtually ce No



D has the necessary intention.


D does not have the necessary intention

Commentary on Woollin A number of issues arise from the case: What does 'virtually certain' mean? It means the result will occur unless something completely unexpected occurs. If it is shown that the event was virtually certain, must the jury find intention or may the jury find intention? There was a great deal of academic debate over this issue:
? Mirfield, 1999: Foresight of virtual certainty did not constitute intention, but only something from which intention (perhaps mysteriously) might properly be inferred by the jury. If I am entitled to find A only where B and C are present, I am also entitled not to find it where both are present. Therefore, whatever else A (intention) is, it is not B (virtual certainty), nor C (foresight of virtual certainty), nor a combination of the two. The striking out of Lord Lane's second statement removes the possibility, alluded to earlier, that the jury may properly find the judge's nod as good as his wink.
? Sir John Smith, 1999: The effect of the critical direction in Nedrick is that a result foreseen as virtually certain is an intended result. This was resolved in Matthews (below) when the CA made it clear that it was a misdirection to tell the jury that they must find intention; however, they felt there were cases (including Matthews itself) where having answered the Nedrick questions in the affirmative, a finding of intent would be irresistible for the jury.

Is it necessary to show that the result was actually virtually certain? It appears that both of the following must be shown: (i) result was actually virtually certain; (ii) D believed it was virtually certain. So the latter (following the later cases of Matthews and Hayes) alone is not enough, this can, however, result in off results: e.g. that intention can't be proved because unbeknownst to a bomber, a plane has a special device meaning it can land safely even if bomb goes off in hold. So Prof. Allen argues that we should only need to show that D foresaw the result as virtually certain. What is the significance of Lord Steyn's chaging 'infer' to 'find'?

1. Maybe that 'find' is easier for jury to understand? So not actually trying to change the meaning.

2. Or maybe he was trying to change the meaning, and meant to suggest that foresight of virtual certainty isn't just evidence from which can infer intention but 'actually is intention (in the legal sense)'. This is what Sir John Smith argues (above) Is the Woollin test just to be used in cases of murder, or does it apply to other crimes that require proof of intention? Steyn only refers to murder. So if it's something else, court must consider whether intention's restricted to its core meaning or whether Woollin also applies.

Additional cases on intention: The following case illustrates the difficulties Woollin can cause in the medical context; as well as the doctrine of double effect (not applicable in this case, but would be applicable in a case involving the administration of painkillers to a patient by a doctor, which, although hastening his death, are intended to alleviate his pain); and the role of necessity in this area of law (i.e. as a defence). Re A (children) [2001]
Facts: the case involved conjoined twins (Mary and Jodie) --- the weaker, Mary, dies if an operation is performed, both die if it is not. The parents are unwilling to agree to the operation as they are Roman Catholic. The doctors appeal to the court for a declaration that the operation can go ahead.
? Key question: Do the doctors recognise that death or serious harm will be virtually certain, barring some unforeseen intervention, to result from carrying out this operation?
If so, the doctors intend to kill or to do that serious harm even though they may not have any desire to achieve that result. It is common ground that they appreciate that death to Mary would result from the severance of the common aorta. Unpalatable though it may be to stigmatise the doctors with "murderous intent", that is what in law they will have if they perform the operation and Mary dies as a result.

Court of Appeal:
? The doctrine of double effect: Counsel argued that the doctrine of double effect would relieve the surgeons of criminal responsibility in these circumstances. o Ward LJ defined the doctrine as follows: "An act which produces a bad effect is nevertheless morally permissible if the action is good in itself, the intention is solely to produce the good effect, the good effect is not produced through the bad effect and there is sufficient reason to permit the bad effect."Thus, it is this doctrine which permits a doctor, in the best interests of his or her patient, to administer painkilling drugs in appropriate quantities for the purpose of relieving that patient's pain, even though the doctor knows that an incidental effect of the administration of these drugs will be to hasten the moment of death. However, the doctrine is not permissible here because by no stretch of the imagination could it be said that the surgeons would be acting in good faith in Mary's best interests when they prepared an operation which would benefit Jodie but kill Mary.
? Causation and omissions: Ward LJ considered whether the case could be dealt with under omissions principles (as in Bland) or as a matter of causation, but felt that it was clearly a positive act (the operation) that was the 'but for' and legal cause of M's death.
? Necessity Walker LJ: "There is another class of case in which a person may be faced with the dilemma of whether to save himself or others at the cost of harm or even death to a third person. The dilemma generally rises as the result of an emergency, and the examples, real or imagined, are typically concerned with disasters at sea, or emergencies during mountaineering or other hazardous activities. If a person, faced with such a dilemma, acts with the intention of saving his own life, or the lives of others, it may be said that that leaves no room for a guilty intention to harm or even kill the third person. Equally it may be said that although he must, on R v Woollin principles, be taken to have intended the death which he foresaw as virtually certain, he has a defence of necessity. That is the way the submission was put by counsel." Matthews & Alleyne [2003]
Facts: M and A were convicted of the robbery, kidnapping and murder of Jonathan. J was attacked on leaving a club in the early hours of the morning and then thrown off a high bridge into a wide river. J could not swim and drowned. A co-accused gave evidence that J told M &
A he could not swim. The key issue was over the jury direction, in which the Woollin test was described as a rule of substantive law, rather than as a rule of evidence. Court of Appeal:
? Although acting deliberately with the appreciation of a virtual certainty of death did not necessarily amount to an intention to kill it was evidence from which intent to kill could be inferred.
? On the facts, if the jury were sure that the appellants appreciated the virtual certainty of death when they threw the victim over the bridge and also that they had no intention of

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