The concept of mens rea, or the guilty mind, is a foundational principle in the criminal law of England and Wales, with intention being its most serious form. While direct intention, where a defendant acts with the purpose or aim of bringing about a specific consequence, is relatively straightforward, the law concerning oblique intention has been a source of considerable judicial and academic debate. This essay will argue that while the current legal framework, established in R v Woollin [1999] AC 82, has brought more certainty than its predecessors, it still leaves a crucial ambiguity that can impact a jury's decision-making and fails to provide a completely clear and just basis for determining culpability.
The Development of Oblique Intention
The courts have long struggled to define the level of foresight required to establish oblique intention, which applies where the defendant’s primary purpose is something other than the prohibited consequence, but that consequence is a side-effect of their actions. The journey to the current law has been turbulent. In Hyam v DPP [1975] AC 55, the House of Lords held that foresight of a ‘high probability’ of serious harm was sufficient for the mens rea of murder. This was criticised for blurring the line between intention and recklessness, the latter involving foresight of a lesser degree of risk.
The law was subsequently refined in R v Moloney [1985] AC 905, where Lord Bridge stated that foresight of a "natural consequence" of an act was not intention itself, but merely evidence from which a jury could infer intention. He famously suggested that in most cases, intention’s ordinary meaning was clear and judges should avoid complex directions. This was swiftly followed by R v Hancock and Shankland [1986] AC 455, which clarified that the greater the probability of the consequence, the more likely it was foreseen, and the more likely it was intended. These cases, while attempting to clarify the law, arguably created more confusion by providing guidelines that were difficult for juries to apply consistently.
The current test for oblique intention was laid down in R v Woollin. The House of Lords confirmed that a jury is not entitled to find the necessary intention unless they feel sure that the prohibited consequence was a "virtually certain" result of the defendant's action, and that the defendant appreciated this virtual certainty. This has become the standard direction given to juries in cases where the defendant's primary purpose was not to cause the result.
Impact on Juries and the Search for Justice
The Woollin test provides a higher and more certain threshold than the ‘high probability’ test in Hyam. By limiting oblique intention to cases of virtual certainty, the law seeks to ensure that only the most culpable defendants, who proceed with their actions knowing a particular outcome is almost inevitable, are convicted of serious offences like murder. This aligns with the principle of justice that criminal liability should reflect a defendant's blameworthiness.
However, a significant criticism of the Woollin direction is its final step. A jury, having been satisfied that the result was a virtually certain consequence and that the defendant knew this, is told that they are 'entitled to find' the necessary intention, not that they must find it. This phrasing retains a degree of flexibility, or 'moral elbow room' as it is sometimes called by academics like Alan Norrie (2013). This means a jury could, in theory, accept that a defendant foresaw a consequence as virtually certain but still acquit them of an offence requiring intention. While this might be seen as a just outcome in a rare, morally complex case (e.g., a father throwing his child from a burning building to an almost certain death on the pavement below), it introduces an element of subjectivity and uncertainty. It is unclear on what principled basis a jury should exercise this discretion. This ambiguity can be particularly unhelpful for juries, who are left with a difficult decision without a clear legal rule to guide them, potentially leading to inconsistent verdicts in similar factual scenarios.
Potential Reforms
The ongoing uncertainty has led to calls for statutory reform. The Law Commission, in its 2006 report on murder, proposed a statutory definition of intention that would bring greater clarity. The Commission recommended that 'intentionally' should be defined as acting with the purpose to cause a result, or acting with the knowledge that the result is a virtually certain consequence of the action (Law Commission, 2006). This would change the Woollin direction from a rule of evidence (what the jury is entitled to find) into a substantive definition of the law (what intention is). Adopting this would remove the 'moral elbow room' and mean that if a jury finds the defendant foresaw the result as virtually certain, they must convict. This would enhance legal certainty and promote consistency in jury decision-making, which are key components of a just legal system. However, Parliament has so far declined to legislate on this complex issue.
Conclusion
In conclusion, the legal framework for establishing intention, particularly oblique intention, remains imperfect. The journey from Hyam to Woollin shows a clear judicial effort to narrow the scope of intention and distinguish it from recklessness, thereby increasing fairness. The 'virtual certainty' test in Woollin provides a welcome degree of clarity. However, the retention of the evidential fudge, allowing a jury that it is merely 'entitled to find' intention, undermines this clarity. It leaves a space for subjective moral judgments that could compromise the principle of legal certainty and confuse juries. While the current law is an improvement on its chaotic past, it stops short of providing a fully clear and just basis for determining culpability. The most logical path forward, as advocated by the Law Commission, would be a statutory definition to finally settle this foundational concept of criminal law.
References
Law Commission. (2006) Murder, Manslaughter and Infanticide (Law Com No 304). The Stationery Office.
Norrie, A. (2013) ‘After the Gavel Falls: Justice and the English Law of Murder’ in (ed. C. Hoyle and L. Zedner) Prevention and the Limits of the Criminal Law. Oxford University Press.
Hyam v DPP [1975] AC 55
R v Hancock and Shankland [1986] AC 455
R v Moloney [1985] AC 905
R v Woollin [1999] AC 82
