Introduction
In English criminal law, most serious offences require the prosecution to prove not only that the defendant committed the prohibited act (actus reus) but also that they did so with a particular state of mind (mens rea). Intention is the most serious form of mens rea, reserved for the most culpable crimes, most notably murder. While the concept may seem straightforward, its precise legal meaning has been the subject of considerable judicial debate, particularly concerning situations where a result was not the defendant’s primary purpose but was a foreseeable consequence of their actions. This essay will explain what is meant by intention in English law, starting with its classification as a form of subjective fault. It will then explore the two forms of intention recognised by the courts: direct intention and oblique intention. The development of the legal test for oblique intention will be traced through key cases, leading to the current direction established in R v Woollin [1999] AC 82. Finally, the essay will consider whether the law on intention is now sufficiently clear.
Intention as a Form of Subjective Fault
Criminal liability is often categorised based on the defendant's mental state, distinguishing between subjective and objective fault. Objective fault measures the defendant's conduct against the standard of a hypothetical reasonable person. The key question is what a reasonable person would have foreseen or done in the circumstances. Negligence is a form of objective fault. In contrast, subjective fault is concerned with the defendant's actual state of mind at the time they committed the offence. The court seeks to determine what the defendant themselves intended, knew, or foresaw (Allen, 2019).
Intention is the highest form of subjective fault. Its significance lies in the principle of autonomy and moral culpability. The criminal law generally seeks to punish individuals for their conscious choices and the consequences they deliberately bring about. By focusing on what was in the defendant's mind, the law ensures that blame is attached to a chosen course of conduct rather than an accidental or unforeseen outcome. This principle is enshrined in section 8 of the Criminal Justice Act 1967, which states that a court or jury, in determining whether a person has committed an offence, shall not be bound to infer that they intended or foresaw a result of their actions by reason only of its being a natural and probable consequence of those actions. Instead, the jury must decide by reference to all the evidence, drawing such inferences as appear proper in the circumstances. This statutory provision confirms that the test for intention is subjective, preventing the courts from applying an objective standard.
Direct Intention
The most straightforward form of intention is direct intention. This applies where the result that occurs is the defendant’s aim, purpose, or objective. It is the consequence that they set out to achieve. As Antony Duff explains, a simple test is to ask whether the defendant would have considered their plan a failure if the consequence had not occurred (Duff, 2005). If the answer is yes, then the consequence was directly intended. For example, consider a hypothetical scenario:
> A knows that his deadly enemy, B, is going to be at a certain pub on a certain day. A visits the pub, armed with a gun. On seeing B, A pulls out the gun, points it at B, and fires, killing him instantly.
In this example, A's purpose in firing the gun was to kill B. The death of B was his aim. If B had survived, A would have considered his plan to have failed. Therefore, A has a direct intention to kill B. In cases of direct intention, the defendant’s motive is irrelevant. A may have wanted to kill B for revenge, to inherit money, or because he believed B was a threat to society. The reason for the intention does not change the fact that the defendant intended to kill. In the vast majority of cases, the meaning of direct intention is clear and juries do not require a detailed direction from the judge.
Oblique Intention
The law becomes more complex in situations where the prohibited consequence was not the defendant's direct purpose but was an inevitable or highly predictable side-effect of achieving their aim. This is known as indirect or oblique intention. For instance, if a defendant places a bomb on a plane to destroy its cargo and claim insurance money, they may not directly intend to kill the pilot. However, the pilot's death is a virtually certain consequence of the bomb exploding mid-flight. The legal question is how aware the defendant must be of this side-effect for the law to treat them as having intended it. The judicial approach to this question has evolved significantly over time.
Initially, in Hyam v DPP [1975] AC 55, the House of Lords held that foreseeing the death or grievous bodily harm of the victim as a "highly probable" or "likely" outcome was sufficient to establish the mens rea for murder. Mrs Hyam had poured petrol through her rival's letterbox to frighten her, but the resulting fire killed two children. This decision was heavily criticised for blurring the distinction between intention and recklessness. Recklessness is defined as foreseeing a risk and going on to take it unjustifiably (R v G [2004] 1 AC 1034), which is a lower level of culpability than intention. The Hyam test appeared to equate foresight of a probability with intention, which also risked contradicting the subjective principle in section 8 of the Criminal Justice Act 1967.
The law was subsequently revised by the House of Lords in R v Moloney [1985] AC 905 and R v Hancock and Shankland [1986] AC 455. In Moloney, Lord Bridge stated that foresight of consequences is not the same as intention, but is evidence from which a jury may infer intention. He argued that only in rare cases would a jury need a special direction. The "highly probable" test from Hyam was rejected. However, the guidance he offered, based on whether a result was a "natural consequence", was considered unhelpful and potentially misleading. Hancock and Shankland modified this by stating that the greater the probability of a consequence, the more likely it was that the defendant foresaw it, and the more likely it was that they intended it. This was an improvement but still lacked a precise standard for juries.
A clearer test was formulated by the Court of Appeal in R v Nedrick [1986] 1 WLR 1025. Lord Lane CJ provided a model direction for juries in cases of oblique intention. He stated that a jury is 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 such was the case. This established a much higher and more specific threshold than the previous tests.
The House of Lords finally settled the modern law in R v Woollin [1999] AC 82. The defendant lost his temper and threw his three-month-old son against a hard surface, causing fatal head injuries. The House of Lords approved the Nedrick direction but made a crucial modification. Lord Steyn, delivering the leading judgment, stated that the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case. The change from "infer" to "find" was significant.
The Final Jury Direction
Following Woollin, the current position on intention can be summarised as a two-stage direction for the jury:
- Was the result (e.g., death or grievous bodily harm) the defendant’s purpose or aim? If yes, the jury can find direct intention.
- If not, the jury may only find intention if they are satisfied that:
a. the result was a virtual certainty of the defendant’s actions; and b. the defendant realised that the result was a virtual certainty.
This direction should only be given in the rare borderline cases where the defendant's primary purpose was something other than the prohibited consequence.
Is the Law on Intention Clear Today?
The Woollin direction has undoubtedly brought greater clarity and certainty to the law on oblique intention than existed under Hyam or Moloney. The "virtual certainty" test provides a high threshold that correctly distinguishes intention from recklessness and reflects the high degree of culpability associated with crimes of specific intent like murder. For most cases, the meaning of direct intention is sufficient, and the Woollin test provides a clear framework for the exceptional circumstances where it is not.
However, a significant point of ambiguity remains. The debate centres on the meaning of Lord Steyn’s use of the word "find" in Woollin. Does foresight of a virtual certainty equate to intention as a matter of law (a substantive definition), or is it simply evidence from which a jury is entitled to find intention (an evidential rule)? (Wilson, 2017). If it is a substantive rule, a jury that finds the two-part test is met must find intention. If it is an evidential rule, the jury retains a degree of "moral elbow room" and could decide not to find intention, even if they are sure the defendant foresaw the result as a virtual certainty. This might be relevant in difficult moral cases, such as a mercy killing where a doctor administers a lethal dose of painkillers with the primary purpose of relieving pain, but knows that death is a virtually certain side-effect. The current law does not explicitly resolve this issue, and legal academics remain divided on the correct interpretation.
In conclusion, while the law on intention is significantly clearer following the decision in Woollin, it is not entirely settled. The core concept of direct intention is well understood, and the "virtual certainty" test for oblique intention provides a workable and principled direction for juries. Nevertheless, the ambiguity surrounding the precise legal effect of a jury finding that the Woollin test is satisfied means that a degree of uncertainty persists at the outer edges of this fundamental concept in criminal law.
References
Allen, M. (2019) Textbook on Criminal Law. 15th edn. Oxford: Oxford University Press.
Criminal Justice Act 1967.
Duff, R.A. (2005) 'The forward-looking character of criminal liability', in Duff, R.A., Philosophical Foundations of Criminal Law. Oxford: Oxford University Press.
Hyam v DPP [1975] AC 55.
R v G [2004] 1 AC 1034.
R v Hancock and Shankland [1986] AC 455.
R v Moloney [1985] AC 905.
R v Nedrick [1986] 1 WLR 1025.
R v Woollin [1999] AC 82.
Wilson, W. (2017) Criminal Law. 6th edn. Harlow: Pearson.
