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Jury normally decides what
intention is. |
Common sense of the jury |
|
Direct intention
|
If D points a gun and fires it is immaterial
if poor shot or out of range. He has intention, he has:
-
Purpose
-
foresight of certainty
Therefore D has intention if he
realised the result was certain to follow. |
|
Problem area..... |
Indirect
(or sometimes called
oblique) Intention
.... I didn’t mean to kill him, harm her, cause as much damage, start a
fire.
|
|
Foresight of certainty =
intention |
Indirect intention requires
foresight of the consequences.
Intention
is not some form of recklessness, it is more than that.
There is a
line of cases where the meaning of intention has been developed.
Note:
each of these cases is relevant, they were not overruled by the later
cases, the ration decidendi was refined. |
|
The line of cases, and CJ Act. |
DPP v Smith [1960] HL (PC thrown from car bonnet)
Section 8 Criminal Justice Act 1967 (subjective test required)
Hyam v DPP (1975) HL
(Petrol through letter box)
R v Cunningham (1981) HL (Intention to GBH sufficient)
R v Moloney (1985)
HL (Quick draw)
R v Nedrick (1986) CA
(Paraffin through letter box)
R v Hancock and Shankland (1986)
HL (Concrete on taxi) |
|
DPP v Smith [1960] HL |
Held: Intention can be formed instantly,
The objective test of intention used was reversed by the
Criminal Justice Act 1967
|
|
Section 8 Criminal Justice Act 1967 |
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 reason 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. |
|
R v Cunningham (1981) HL |
Intention
to cause serious injury (GBH) is sufficient to found a charge of murder,
it is not necessary to intend the death of V.
|
|
Hyam |
intention
= foreseen as highly probable (or merely probable)
Therefore
wider than certainty .
|
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Moloney
|
intention - leave it to
the jury =
"foresaw, as natural
consequence" (little short of overwhelming, or virtually certain)
|
|
…if
‘yes’ jury can
infer
intention |
viz. it is
evidence
of intention , not necessarily is
intention . |
|
Hancock & Shankland |
- ordinary
usage - not foresight of consequences
-
if evidence of
foresight intention can be inferred...
|
|
"Greater probability of
consequences |
...more likely they were
foreseen |
|
...if consequences foreseen |
...the greater probability
consequences intended" |
|
but; ‘natural consequences’
ambiguous. |
|
|
Nedrick |
-
death or serious injury a
‘virtual certainty’ (barring novus)
and
D realised.
|
|
so ..... |
Intention
can be inferred from
‘virtual
certainty’
|
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|
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Therefore
 |
‘foresees virtual certainty’
=
subjective
‘is
virtually certain’ = objective |
|
Both have to be proved.
|
High standard on prosecution. |
|
Upheld
in
Woollin (1998) |
with some refinements of the ratio decidendi of Nedrick. |
|
Foreseeability in mens rea |
- Consequence desired: intention
- Consequence foreseen as virtually
certain: intention may be found
- Consequence foreseen as probable:
typically recklessness (subjective)
- Consequence foreseen as possible:
typically recklessness (subjective)
- Consequence not foreseen but ought to
have been: negligence (objective recklessness) (now rare since
R v G [2003])
- Consequence even reasonable man would
not foresee: strict liability
|
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Draft Criminal Code |
"A person acts ‘intentionally’
with respect to...a result when he acts either in order to bring it about
or being aware that it will occur in the ordinary course of events."
|
