Intention:

Section 8 CJA 1967

8. Proof of criminal intent.
A court or jury, in determining whether a person has committed an offence,
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by
reasons only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence,
drawing such inferences from the evidence as appear proper in the circumstances.


Steane [1947] KB 997
A British citizen lived in Germany before the war. During the war he was compelled to produce
films for the Nazis else his wife and children would be placed in a concentration camp. He was
charged with doing an act likely to assist the enemy. The judge says it is not sufficient to assume
intent from the action- it has to be proved separately. The judge had not directed the jury to
consider the burden of criminal intent being on the prosecutor and that it could not simply be
assumed. It would have caused the jury to reach the wrong conclusion by telling them that a man
must be considered to intend the natural consequences of is actions. He won his appeal, given
that the prosecution had failed to prove his intention beyond reasonable doubt. Norrie said this
was a case of allowing motivation in by the back door, since his intention to help the enemy was
undeniably there, even if his motivation was good.

Hancock [1986] AC 455
Two miners pushed a concrete block into the middle of the road that struck a taxi with a miner
on the way to work in the back. The driver died. They claimed they were trying to scare or deter
people from using the road, while the prosecution contended that they intended murder. The
judge asked the jury to consider if death was a natural consequence of their actions. They were
convicted. CA quashed the convictions, and HL agreed. Lord Scarman said that foresight was
not enough to assert intention. The guidelines in Maloney (Was it a natural consequence) were
unhelpful and confused the jury. Scarmans test for intent is set out here: the greater the
probability of the consequence, the more it is likely that the consequence was foreseen. If the
consequence was foreseen, the greater probability is that the consequence was also intended.

Gillick v West Norfolk and Wisbech AHA [1986] AC 122
A woman demanded that the NHS does not give advice to her daughters about contraception,
abortion etc. without parental consent (in the context of an NHS policy which does offer all these
things to girls under 16 without parental knowledge at the time of the trial). Her case was
dismissed by the trial judge, her appeal allowed by the CA and the HL reversed the decision,
supporting the NHS policys legality. Firstly the National Health Service Act placed no age
restrictions on who could be supplied contraception. Secondly the ability of the parent to take
medical decisions for children under 16 terminated once the child was able to take decisions for
themselves (Gaurdianship of Minors Act 1971 states that the courts should hold the welfare of a
child above all else, including parental rights. The judge takes the view that parental rights exist
in order for them to discharge their duties. If a stuation arises in which parental rights stand in
the way of the child, those rights are not to be prioritized first).

Moloney [1985] AC 905
A man and his step father were drinking and played a shooting game. M killed his step father but
claimed that he did not aim the gun but merely pulled the trigger and his step father was dead.
The judge in his summing up stated that the defense was a denial of intent, ignoring the
defendants claim that he did not realize where the gun was pointed. The judge described intent
as when one forsees what will happen or desires what will happen (only one of these need be
fulfilled). The defendant was convicted of murder. His appeal was dismissed by the Court of
Appeal. The HL allowed his appeal on the grounds that his true defence was never stated (that he
did not realize where the gun was pointing and therefore neither desired nor foresaw what would
occur). A conviction of manslaughter was substituted for the conviction of murder. The trial
judge ought not to have directed the jury on intent since it was supposedly his explanation of
foresight that led to their conviction. Also the question of foresight is that the consequences have
to be little short of certainty to establish the necessary intent. HL decided that judges should
avoid explaining intention beyond that it differs from desire and motive (Ashworth p.178)

Woollin [1999] AC 82
W lost his temper and threw his 3 month old son on to a hard surface and the child died. The
judge directed the jury initially that for a conviction of murder the defendant had to appreciate
death as a virtual certainty for the jury to infer intention. However he later changed this to say
that substantial risk was enough. He was convicted of murder and the CA dismissed his appeal.
HL allowed his appeal, substituting a conviction of manslaughter for one of murder. The judge
should not have given the misdirection of substantial risk and that the direction should have
been more thorough, saying that the jury were not entitled to convict unless the defendant
appreciated the virtual certainty of the infants death. Reg v Moloney and Reg v Nedrick were
precedents. It was also said to be unhelpful to the jury to ask questions like how probable was
the result. They should instead state that the jury are not entitled to find x unless they are certain
of y etc.

Nedrick (1986) 83 Cr.App.R 267
N poured paraffin into a womans letter box and started a fire, as a result of which one of her
children had died. He protested that he did not want anyone to die. The judge directed the jury
that if death had been the highly probable result they should convict on murder. He was
convicted and appealed. The appeal was allowed since the judge had equated foresight with
intent, when in fact foresight is evidence of intent. Therefore to convict based on foresight is only
acceptable where the consequence is appreciated as inevitable by the defendant, so that no other
conclusion can be found except that he intended what he did. The charge of murder was
substituted for one of manslaughter.

Matthews and Alleyne [2003] Crim L R 553
M, A and two others threw a boy off a bridge into a river after he told them that he couldnt
swim. He drowned, and the judge directed that if the boys death was appreciated by the
defendants as a virtual certainty then the jury should convict of murder. They were convicted and
the CA dismissed their appeal. The appeal was based on the way the judge presented the virtual
certainty rule, which was as a rule of law, not of evidence, by differing from the accepted form
of you may not convict unless However there was held to be no real difference between the
virtual certainty rule as a rule of law and a rule of evidence and therefore the appeal fails.

Re A (conjoined twins) [2000] 4 All ER 961
M and J were Siamese twins. J was normal in every respect bar his conjunction to his twin M
who had no long tissue and brain problems, who would die in a matter of months. The trial judge
ruled that simply removing the blood supply that J was supplying to keep M alive was
comparable to the case of NHS Trust v Bland. The parents appealed but their appeal was
dismissed given that the childrens welfare would be best served by the separation (J would get a
normal life and M would be saved months of painful, degenerative existence).

Norrie, After Woollin [1999] Crim L R
His argument is that Woollin still does not provide a clear test. It distanced itself from the case of
Hyam where a probable consequence test was used, but failed to expressly overrule it, leaving
uncertainty as to where the law lies. He says that the judgments in Hancock and Nedrick both
enshrine Lord Scarmans approach (the higher probability of the consequence goes, the more
likely it is that intent was present) which Norries says is bad as it fails to say how the law should
deal with cases based at any given level of probability. Lord Steyn simply says that this does
not form part of the model direction. While it may be true, as Norrie says, that he is
sidestepping the issue, he has determined the best approach.

Norrie also argues that not only were two judges in disagreement with Lord Steyn over the new
test, as they said in their judgements, but also Lord Hope was in fact against Steyns new test
whether he knew it or not: Lord Hope said that if a terrorist put a bomb on a street and a bomb
disposal expert tried to defuse it but was killed in the process, whether or not the terrorist would
be guilty of his murder will dependon the circumstances. This would not seem to differ from
Scarmans sliding scale approach. Therefore the majority of judges in Woollin were in fact
against Lord Steyns decision.

Norrie says that there are cases of direct intention where making something a moral certainty
does not mean intention existed. In Steane the intention was to save his family, but his actions
inevitably did help the enemy. Norrie says that in these cases a Moral threshold has to be
passed in order to find the necessary intention (though surely this just means whether or not we
approve of their action, whether I is lawful or not). Why is it that, where we think there is a good
motive for action, intention is narrowed in this way? It ultimately comes down to how judges
feel about a particular case.

Wilson, doctrinal rationality after the Woollin case (1999) 62 MLR 448
Woollin was inconsistent with Hancock because it abandoned Lord Scarmans test. There has
been no analysis of what intention is, merely what it is not (where someone has taken an action
whose consequences are less than certain) and that this impedes rational doctrinal development.
The problem with the tidying up exercise in Woollin creates two problems: 1) where the
motivation behind a crime is morally good (e.g. a doctor facilitating underage sex by providing
contraceptives to an underage person, or where A throws B off the top of a burning building in
an attempt to save his life), and 2)where there is wicked recklessness (e.g. Hyam: the defendant
started a fire through her love rivals letter box knowing that it was likely to cause death but, in
having a plausible excuse- wanting merely to cause fear- would be acquitted of murder under
Steyns interpretation). Wilson says the effect of the intention guidelines of Nedrick-Hancock-
Woollin is that in cases with a humane motive (reason 1, above) judges could use their discretion
to let juries make humane decisions, while in dangerous actions with no social benefit (reason 2)
they could apply their direction on intent. Wilson says this is fine, I say it creates a two tier
justice system based on moral, not legal, judgments.

Doctrinal certainty coming from the Woollin case does not create doctrinal rationality. After the
Nedrick fudge Wilson claims that juries could apply murder convictions to those without the
intention of killing, but who would not care if death was the result of their actions e.g. terrorists
who want to blow up a building. He says that this brought back the Hyam doctrine, but Woollin
has made this impossible. He says that since the terrorist example can no longer lead to a murder
conviction, the law is nsatisfactory. This seems odd since Hyam and Nedrick were v. similar
cases but with different results (Nedrick requires certainty, while Hyam required just high
probability). Also the doctrine in Nedrick and Woollin seems to be the same. Ask Ben about
this Point!!!

Pedain, Intention and the terrorist example [2003] Crim L R 579

The argument is that a terrorist who plants a bomb without foreseeing death as a virtual certainty
nevertheless can be found to have the necessary intention for murder. He doesnt accept the
apparent post-Woollin distinction between intention in the sense that one desires to undertake
illegal activity (direct intent) and the other sense that one appreciates the certain outcome of
ones actions (oblique). He claims that actually we have just misunderstood what the former
means. He gives the example of a terrorist who warns the authorities of his bomb, having the
intention that it should be discovered and nobody should get hurt. This would provide difficulty
for Lord Steyns test as a there is no foresight of near certainty on the terrorists part.

He introduces the idea of prior endorsement, which if indicated leaves no room for the agent to
disassociate himself later and this lies behind whether or not the doctrine of double effect
(e.g. in Steane where his actions helped the enemy AND saved his family) should affect
intention (on the one hand good motivation may excuse a bad action, on the other hand the bad
outcome was certain and he has to take responsibility). By denying prior endorsement one can
show that they did not foresee the consequences of their actions and did not want them to occur.
Not wanting something to happen could mean not caring OR desiring it not to happen. The
terrorist example is like Hyams, in that they both achieved too much, as opposed to something
different. They both intended to cause fear and intimidation, but their actions go further and
cause death (though I would say that causing fear IS different to causing death). In intending to
expose another to the risk of death or GBH, he has embraced the mayhem caused by an
explosion. He claims that intending something is endorsing the outcome of your action, even if it
is unlikely. The question is whether you give a possible consequence of your action your
blessing. In Woollin this is not the case, since he does not endorse the death of his child (it was
unthinking). For the terrorist to take an indifferent attitude to the possibility of his causing death
(as can be seen from the fact that he would like the bomb to be defused but is still willing to take
the risk) he has endorsed the death of the bomb-defuser. He claims that this is different to the
instance of taking a risk on anothers well-being on the grounds that it probably wont
materialize. The former is not caring, the latter is hoping that something will not happen. Though
surely the terrorist is hoping that the bomb wont detonate, else why would he inform the
authorities? A better test is Duffys where someone is willing to risk putting others in danger, as
opposed to someone who intends to put someone in danger (difference between a reckless driver
and Hyam). The one who intends risk would be disappointed if the risk never materialized.
Anyone who thus intends the risk they create is endorsing the consequences and can be said to
hold intent.

This seems to prove merely that the terrorist didnt care whether or not people got hurt, and that
he was willing to place people in that position of risk. It does not show that he actively willed it
to happen. The link between endorsement and intention is not made conclusively.