Introduction
In the criminal law of England and Wales, the defendant's state of mind, or mens rea, is a crucial element in determining their liability for an offence. The concept of 'intention' represents the most serious level of mens rea and is fundamental to the law on many serious crimes, most notably murder. The law distinguishes between two types of intention: direct and oblique. While direct intention is relatively straightforward, the definition of oblique intention has been a source of considerable legal difficulty and academic debate. This essay will argue that while the current legal framework for establishing intention, as set out in R v Woollin [1999] AC 82, has provided a degree of clarity compared to previous tests, it has not fully resolved the underlying uncertainty. The test for oblique intention still leaves a problematic level of discretion to the jury, raising questions about whether the law provides a consistently clear and just basis for determining criminal culpability.
The Importance of Intention in Criminal Culpability
Intention is considered the highest form of fault in criminal law because it signifies that the defendant acted with the purpose of bringing about a prohibited result. This reflects a fundamental principle of criminal justice: that individuals should be held most accountable for the consequences they consciously seek to cause. The law operates on a hierarchy of fault, with intention at the top, followed by recklessness, and then negligence (Herring, 2020). Crimes of specific intent, such as murder and theft, require proof of intention and cannot be committed recklessly. For example, the mens rea for murder is ‘malice aforethought’, which has been interpreted by the courts as meaning an intention to kill or cause grievous bodily harm (R v Vickers [1957] 2 QB 664). By reserving the highest penalties for those who act with intention, the law seeks to ensure that punishment is proportionate to the defendant's blameworthiness. A clear and consistent definition of intention is therefore essential for the law to operate fairly and label defendants correctly according to their level of culpability.
Direct and Oblique Intention
The law recognises two forms of intention. The first, direct intention, is the most common and easily understood form. It applies where the consequence is the defendant’s aim or purpose. As Lord Bridge explained in R v Moloney [1985] AC 905, a defendant has direct intent if they act in order to bring about a particular result. This is often described as the ‘paradigm case’ of intention, where there is no doubt about the defendant's state of mind regarding the outcome.
The second, more problematic form is oblique intention. This applies in situations where the prohibited consequence was not the defendant's primary purpose but was a side effect of their actions that they knew was almost certain to occur. For example, a person might plant a bomb on an aeroplane with the aim of destroying the cargo to commit insurance fraud. Their purpose is not to kill the pilot, but they know that the pilot's death is a virtually certain consequence of the bomb exploding. The question for the law has been to define the level of foresight required for this to be treated as intention, and thereby equivalent to a purposeful killing. The struggle to create a consistent legal test for oblique intention has produced a long and complex line of case law.
The Judicial Development of Oblique Intention
The modern history of oblique intention began with the controversial case of DPP v Smith [1961] AC 290, where the House of Lords held that a defendant could be deemed to have intended a result if it was a natural and probable consequence of their actions, regardless of whether they actually foresaw it. This objective test was widely criticised for punishing individuals based on what a reasonable person would have foreseen, rather than their own subjective state of mind. Parliament reversed this decision through section 8 of the Criminal Justice Act 1967, which restored a subjective test, requiring the court to consider what the defendant themselves foresaw.
Following this, the courts struggled to define the new subjective test. In R v Hyam [1975] AC 55, the House of Lords held that foresight of a ‘high probability’ was sufficient for a finding of intention. This test was criticised for blurring the line between intention and recklessness, as recklessness involves the foresight of a risk that is less than certain.
The law was further confused in R v Moloney [1985], where Lord Bridge suggested that foresight of a ‘natural consequence’ could be evidence of intention. This was soon followed by R v Hancock and Shankland [1986] AC 455, where the court stated that the greater the probability of a consequence, the more likely it was that the defendant foresaw it and intended it. These varying phrases – ‘high probability’, ‘natural consequence’ – created significant uncertainty for juries.
A major step towards clarity came in R v Nedrick [1986] 1 WLR 1025. The Court of Appeal formulated a two-part direction for juries. The jury should ask themselves: (1) how probable was the consequence which resulted from the defendant's voluntary act? and (2) did the defendant foresee that consequence? The court stated that if the defendant foresaw the result as a ‘virtual certainty’, a jury could infer the necessary intention. This ‘virtual certainty’ test provided a much higher and more specific threshold than previous formulations.
The Woollin Test and its Limitations
The current law on oblique intention was established by the House of Lords in R v Woollin [1999], which largely approved the direction in 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." A key change was Lord Steyn’s substitution of the word ‘find’ for ‘infer’.
The Woollin test has been praised for bringing greater clarity and certainty to the law. The ‘virtual certainty’ standard is a high threshold that appropriately restricts the scope of oblique intention, ensuring that it captures only those defendants whose foresight of a consequence is so clear that their state of mind can be seen as morally equivalent to a direct intention (Norrie, 2009). It rightly ensures that those who merely foresee a risk, even a very serious one, are not convicted of murder but of manslaughter.
However, the Woollin direction is not without its problems. The most significant criticism centres on its status as a rule of evidence rather than a substantive definition of intention. The direction tells the jury that if they find foresight of a virtual certainty, they are ‘entitled to find’ intention, but it does not compel them to do so. This was confirmed in R v Matthews and Alleyne [2003] EWCA Crim 192, where the Court of Appeal held that foresight of virtual certainty is not intention itself, but simply evidence from which a jury can find it.
This leaves a degree of "moral elbow room" for the jury (Lacey, 1993). In a difficult case, a jury might believe that the defendant did foresee the outcome as virtually certain, but feel that it would be unjust to label their actions as intentional. For example, in a case of mercy killing. While this flexibility may lead to just outcomes in individual cases, it creates a lack of legal certainty. Two juries, faced with identical facts, could lawfully reach different conclusions. This undermines the principle that the law should be applied consistently, and it leaves the exact meaning of intention uncertain.
Potential for Reform
Recognising the persistent ambiguity, the Law Commission has proposed reforms to provide a statutory definition of intention. In its 2006 report, Murder, Manslaughter and Infanticide, the Commission recommended that intention should be defined in statute. It proposed a two-limbed definition, stating a person acts intentionally with respect to a result when: (a) it is his purpose to cause it; or (b) he knows that it would be virtually certain to be caused by his act (Law Commission, 2006).
Adopting this definition would make the second limb a rule of substantive law, not merely evidence. If the jury found that the defendant knew the result was a virtual certainty, they would be required to find that the defendant intended it. This would remove the jury’s "moral elbow room" and provide greater legal certainty and consistency in verdicts. However, this approach has also been criticised. Some argue that removing the jury's flexibility could lead to unjust convictions in exceptional cases where a defendant’s actions, despite meeting the virtual certainty test, do not seem to warrant the label of murder. The debate, therefore, involves a difficult trade-off between the values of legal certainty and individualised justice.
Conclusion
The concept of intention is central to criminal liability, but its precise meaning, particularly in the context of oblique intention, has proven elusive. The historical development of the law from DPP v Smith to R v Woollin shows a clear judicial effort to move from an objective test to a more principled subjective one, culminating in the "virtual certainty" standard. The Woollin test has undoubtedly improved the clarity and fairness of the law by setting a high and narrow threshold for oblique intention.
However, the current framework falls short of providing a fully clear and just basis for determining culpability. By framing the test as a rule of evidence from which a jury may ‘find’ intention, the law leaves a significant ambiguity. This leaves the ultimate decision to the jury’s moral judgment, which can lead to inconsistency and uncertainty. While this flexibility might be desirable in some exceptional cases, it does so at the cost of legal certainty. The reforms proposed by the Law Commission offer a path to greater clarity by creating a substantive definition of intention, but this too is not without difficulty, as it would remove the very flexibility that some see as essential to achieving justice in hard cases. Therefore, the law on intention remains a compromise that has yet to definitively resolve the tension between legal certainty and moral justice.
References
- Herring, J. (2020) Criminal Law: Text, Cases, and Materials. 9th edn. Oxford University Press.
- Lacey, N. (1993) 'A Clear Concept of Intention: Elusive or Illusory?', The Modern Law Review, 56(5), pp. 621–642.
- Law Commission (2006) Murder, Manslaughter and Infanticide (Law Com No 304). The Stationery Office.
- Norrie, A. (2009) 'After Woollin', The Criminal Law Review, pp. 532–544.
Cases
- DPP v Smith [1961] AC 290
- R v Hancock and Shankland [1986] AC 455
- R v Hyam [1975] AC 55
- R v Matthews and Alleyne [2003] EWCA Crim 192
- R v Moloney [1985] AC 905
- R v Nedrick [1986] 1 WLR 1025
- R v Vickers [1957] 2 QB 664
- R v Woollin [1999] AC 82
Legislation
- Criminal Justice Act 1967
