The concept of ‘intention’ is a foundational element in criminal law, serving as the primary basis for establishing culpability for many of the most serious offences. While the law distinguishes between direct intention, where a consequence is the defendant’s aim or purpose, and oblique intention, where a consequence is a foreseen side-effect of their actions, this distinction has created significant legal and academic debate. The current framework, developed through a line of inconsistent case law and culminating in the direction from R v Woollin [1999], has been heavily criticised. This essay will argue that the law on intention, particularly oblique intention, fails to provide a sufficiently clear and just basis for determining criminal guilt. It does so by creating a test that is difficult for juries to apply consistently, leaving a crucial element of liability to uncertain interpretation rather than clear legal principle. Although there have been proposals for reform, the failure by Parliament to enact them means the law remains in an unsatisfactory state.
The Development of Oblique Intention
The judicial attempt to define the mental state required for murder, short of a direct intention to kill or cause grievous bodily harm, has a difficult history. Initially, the courts struggled to find a consistent standard. In R v Moloney [1985], the House of Lords suggested that a result was intended if it was a "natural consequence" of the defendant's actions and the defendant foresaw it as such. This test was criticised for being too wide and was shortly revised in R v Hancock and Shankland [1986], where it was held that the greater the probability of a consequence, the more likely it was that the consequence was foreseen, and the more likely it was that it was intended. This approach, however, still equated foresight with evidence of intention, rather than providing a clear definition of what intention meant in these difficult circumstances.
This confusion led to the case of R v Nedrick [1986], where the Court of Appeal attempted to create a more precise model direction for juries. Lord Lane CJ stated that a jury could infer intention only if they felt sure that the defendant recognised that death or serious bodily harm would be a “virtual certainty” as a result of their actions. This formulation was a significant step towards a clearer rule, as it set a much higher threshold of foresight than the previous tests. It was this approach that was later substantially approved and refined by the House of Lords, creating the modern test used today.
Critical Analysis of the Woollin Test
The current law on oblique aintention is primarily governed by the House of Lords’ decision in R v Woollin [1999]. In that case, the defendant threw his three-month-old son against a hard surface in a moment of frustration, causing fatal head injuries. The House of Lords sought to bring clarity to the law, approving the direction from Nedrick. Lord Steyn stated that a jury is 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.
At first glance, this test appears to improve legal certainty. By setting the standard at "virtual certainty," it significantly restricts the scope of oblique intention, ensuring that only defendants with a very high degree of foresight of the consequences can be found guilty of murder. This prevents the law from punishing individuals for outcomes they merely thought might happen, which is correctly the domain of recklessness (Simester and Sullivan, 2019). However, the Woollin test contains a fundamental ambiguity that undermines this clarity. The House of Lords held that if the two-part test is satisfied, the jury is entitled to find the necessary intention; it does not state that they must find it. This distinction is crucial.
The problem with this was exposed in R v Matthews and Alleyne [2003]. In this case, the Court of Appeal confirmed that the Woollin test did not create a substantive rule of law that foresight of virtual certainty is intention. Instead, it is an evidential rule; foresight of virtual certainty is merely very strong evidence from which a jury may, or may not, infer intent. This leaves a "moral elbow-room" for the jury (Norrie, 2014), allowing them to decide whether a defendant’s state of mind truly amounts to an intention. While this preserves jury discretion, it creates injustice by making the definition of a key element of murder dependent on the moral reactions of twelve individuals in a specific case, rather than on a consistent legal rule.
The Impact on Juries
The Woollin test places significant responsibility on juries because they must decide whether death or serious injury was a “virtual certainty” and whether the defendant appreciated that consequence. This preserves the jury’s role as the finder of fact, as confirmed in R v Woollin, where the House of Lords emphasised that intention must be determined by considering all the evidence (Criminal Justice Act 1967, s 8; R v Woollin [1999]). However, this discretion can also create uncertainty. The distinction between foresight as evidence of intention and foresight as intention itself is subtle, and jurors may struggle to apply it consistently. This problem was highlighted in R v Matthews and Alleyne [2003], where the Court of Appeal confirmed that foresight of virtual certainty is evidence from which intention may be found, rather than automatically amounting to intention. As a result, the current framework risks leaving too much to jury interpretation, potentially producing inconsistent verdicts in morally difficult cases where defendants did not directly desire the outcome. This undermines the principle of justice, which requires that law is applied in a predictable and consistent manner.
Potential for Reform
There have already been some real reforms affecting this area of law. Section 8 of the Criminal Justice Act 1967 abolished the old presumption that a person intends the natural and probable consequences of their acts, requiring juries instead to decide intention by reference to all the evidence. However, broader reform of the substantive law of homicide, which is where the problems with intention are most acute, remains incomplete.
The Law Commission has repeatedly criticised homicide law as uncertain and in need of reform, describing it as a "mess" (Law Commission, 2006). In 2006, it published a major report recommending a complete overhaul of the law. It proposed replacing the current two-tier structure of murder and manslaughter with a three-tier system of first-degree murder, second-degree murder, and manslaughter. In this model, first-degree murder would be reserved for those who killed with an intention to kill, or with an intention to cause serious injury coupled with an awareness of a serious risk of death. Second-degree murder would cover killings where the defendant only intended to cause serious injury. This proposed structure would better reflect different levels of culpability and would remove the pressure on juries to acquit defendants of murder in cases where a mandatory life sentence seems disproportionately harsh. By creating a clearer hierarchy of offences, these reforms would reduce the need for the courts to strain the definition of intention to achieve a just outcome. Nevertheless, these proposals remain reform proposals rather than enacted law. Therefore, although some reforms have clarified related areas, the core problem remains: English law still lacks a clear statutory definition of intention.
Conclusion
In conclusion, the current legal framework for establishing intention in criminal law does not provide a sufficiently clear and just basis for determining culpability. While the Woollin test intended to bring certainty, its effect has been to delegate the final definition of oblique intention to individual juries. By framing foresight of a virtual certainty as merely evidence from which an inference of intention may be drawn, the law as confirmed in R v Matthews and Alleyne creates a space for moral judgement that can lead to inconsistent and therefore unjust verdicts. The judiciary has taken the definition of intention as far as it can without legislative intervention. The long-standing proposals from the Law Commission to restructure the law of homicide offer a coherent solution by creating a clearer hierarchy of offences that would better align liability with culpability. Until Parliament chooses to act on these recommendations, the law of intention will remain a source of undesirable uncertainty at the very heart of the criminal law.
References
- Criminal Justice Act 1967.
- Law Commission. (2006) Murder, Manslaughter and Infanticide (Law Com No 304). <https://www.lawcom.gov.uk/project/murder-manslaughter-and-infanticide/>.
- Norrie, A. (2014) Crime, Reason and History: A Critical Introduction to Criminal Law. 3rd edn. Cambridge University Press.
- R v Hancock and Shankland [1986] AC 455.
- R v Matthews and Alleyne [2003] EWCA Crim 192.
- R v Moloney [1985] AC 905.
- R v Nedrick [1986] 1 WLR 1025.
- R v Woollin [1999] AC 82.
- Simester, A. and Sullivan, G. R. (2019) Simester and Sullivan's Criminal Law: Theory and Doctrine. 7th edn. Hart Publishing.
