1. Introduction
The concept of intention is foundational to criminal liability for many of the most serious offences in English law, most notably murder. Despite its importance, intention has no single statutory definition, leaving its meaning to be developed by the judiciary on a case-by-case basis. This has led to a distinction between direct intention, which is relatively straightforward, and oblique intention, which has been a persistent source of legal difficulty. The courts have struggled to formulate a test for oblique intention that is both clear for juries to apply and just in its outcomes. This essay will argue that while the current legal framework established in R v Woollin represents a significant improvement on previous attempts, it fails to provide a fully clear and just basis for determining culpability. The ambiguity surrounding the phrase 'virtual certainty' and the 'moral elbow room' afforded to the jury mean that significant problems with consistency and fairness remain.
2. The Distinction Between Direct and Oblique Intention
Intention represents the highest level of fault, or mens rea, and is crucial for distinguishing between offences like murder and manslaughter. The law separates intention into two forms. Direct intention is the most straightforward and concerns a defendant's aim or purpose. As explained in R v Moloney (1985), if a defendant's purpose was to bring about a particular result, they directly intend it. For example, if a person aims a loaded gun at another's heart and pulls the trigger, their purpose is clearly to cause death or at least serious harm, and they therefore have direct intent. This aspect of the law is largely unproblematic.
The difficulties arise with oblique intention. This applies where a result is not the defendant’s primary purpose, but is a side-effect of their actions that they know is almost certain to occur. The classic example involves a defendant who places a bomb on an aeroplane to destroy the cargo and claim the insurance money, knowing the pilot will inevitably die when the bomb explodes (R v Moloney (1985)). The defendant’s purpose is not to kill the pilot, but to commit fraud. Nevertheless, the pilot’s death is so closely linked to the intended act that the law may treat the defendant as having intended it. Establishing the precise level of foresight required for oblique intention has been the central challenge for the courts, raising questions about the clarity and justice of the law.
3. The Development of Oblique Intention Through Case Law
The judicial journey towards a definition of oblique intention has been long and inconsistent. An early objective approach seen in DPP v Smith (1961), where a person was presumed to intend the natural and probable consequences of their acts, was seen as unjust and was swiftly abolished by section 8 of the Criminal Justice Act 1967. This Act confirmed that intent should be determined subjectively, by reference to what the defendant themselves foresaw.
The case of Hyam v DPP (1975) was a key development in the modern, post-1967 era. The defendant poured petrol through a letterbox and ignited it, not to kill, but to frighten the occupant. Her two children died in the fire. The House of Lords held that foresight of a "high probability" of serious harm was sufficient mens rea for murder. This test was heavily criticised for being too wide and blurring the line between intention and recklessness. It was unjust because it risked convicting of murder individuals who had not intended to cause death or serious harm, but had merely taken an unjustifiable risk.
The law was narrowed in R v Moloney (1985), which rejected the Hyam test. Lord Bridge argued that foresight of consequences was not intention itself, but merely evidence from which a jury could infer intention. He suggested that only where the prohibited consequence was a "natural consequence" of the defendant's act, and the defendant foresaw it as such, could a jury infer intent. However, this test was criticised for its lack of clarity. The term "natural consequence" is vague and provided little meaningful guidance for juries, creating uncertainty.
This uncertainty was addressed in R v Hancock and Shankland (1986), where striking miners pushed a concrete block from a bridge onto a motorway, killing a taxi driver. The court clarified that the Moloney guidelines were misleading and that the degree of probability was a critical factor. Lord Scarman stated, "the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended." While this provided more guidance, it still failed to set a distinct threshold for juries, leaving the law unclear. It was in R v Nedrick (1986) that the Court of Appeal formulated what would become the leading test. Lord Lane CJ directed that for a jury to infer intention, they must 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 this was the case.
4. A Critical Analysis of the Woollin Test
The modern law on oblique intention was settled by the House of Lords in R v Woollin (1999). The defendant lost his temper and threw his three-month-old baby against a hard surface, causing fatal head injuries. The House of Lords approved the direction in Nedrick, establishing a two-part test. The jury must ask:
- Was the result (death or grievous bodily harm) a virtually certain consequence of the defendant's act?
- Did the defendant appreciate that it was a virtually certain consequence?
If the answer to both questions is yes, the jury is entitled to find the necessary intention.
A. Advantages of the Woollin Test
The Woollin test offers considerable advantages over earlier formulations. It provides a much clearer threshold ('virtual certainty') than the vague tests of 'high probability' (Hyam) or 'natural consequence' (Moloney). By setting such a high bar, it maintains a clear distinction between intention and recklessness, which is crucial for ensuring that the mens rea for murder is appropriately high. This makes the law more just, as it reduces the risk of individuals being convicted of murder when they were merely highly reckless. The direction provides better guidance for juries than the open-ended probability scale suggested in Hancock and Shankland.
B. Criticisms of the Woollin Test
Despite these improvements, the Woollin test has been criticised for its lack of complete clarity and justice. Firstly, the key term 'virtual certainty' is not defined, leaving it open to interpretation by individual juries. This creates a risk of inconsistency, where one jury might convict and another acquit on similar facts depending on their understanding of the phrase.
Secondly, and more fundamentally, the direction is problematic. Lord Steyn in Woollin stated that if the two questions are answered affirmatively, the jury "are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty… and that the defendant appreciated that such was the case." Even then, the jury "may" find intention, not that they "must". This gives the jury what some academics term 'moral elbow room' (Simester and Sullivan, 2016). They can decide that, even if the defendant foresaw a virtual certainty of harm, it would be unjust to label them a murderer. While this may allow for justice in a specific case, it makes the law uncertain and potentially unfair, as it allows a conviction to depend on a jury's moral reaction rather than a strict application of legal rules. The decision in R v Matthews and Alleyne (2003) confirmed that the Woollin test is a rule of evidence, not a substantive definition of intention. Foresight of a virtual certainty is not intention; it is simply evidence from which a jury may find intention. This preserves the jury’s discretion and the resulting uncertainty.
5. The Prospect of Reform
Given the remaining issues, there have been calls for reform, primarily through legislation. The Law Commission has repeatedly considered this issue, most recently in its 2006 report, Murder, Manslaughter and Infanticide. It proposed a statutory definition of intention where a person would be taken to intend a result if they act in order to bring it about, or if they know it is a virtually certain consequence of their action. This would equate foresight of a virtual certainty with intention, removing the jury’s "moral elbow room" and thereby increasing clarity and consistency.
However, Parliament has not acted on these proposals. There is a general reluctance to codify fundamental common law concepts, partly due to the difficulty of drafting a definition that is both comprehensive and just in all circumstances. A rigid statutory rule might lead to injustice in unforeseen "hard cases" where a jury might currently use its discretion to acquit. Some commentators argue that the current law, while theoretically imperfect, works well enough in practice and that the ambiguity allows for a necessary degree of flexibility (Ormerod and Laird, 2021). Thus, the debate continues between those who prioritise legal certainty and those who favour moral flexibility in the hands of the jury.
6. Conclusion
In conclusion, the current legal framework for establishing intention provides a clearer, and therefore more just, basis for determining culpability than the tests which preceded it. The Woollin test rightly sets a high, subjective threshold for oblique intention, ensuring a clear conceptual boundary with recklessness. However, the framework is far from perfect. The core concept of 'virtual certainty' remains undefined, and the decision to frame the test as a rule of evidence rather than a substantive definition of intent grants juries a level of discretion that undermines legal certainty. This means that justice can be inconsistent, depending on the moral intuitions of twelve individuals. While statutory reform could offer greater clarity, it comes with its own risks of rigidity and has so far been resisted. The law on intention therefore remains a compromise: it is more workable and fairer than it once was, but a degree of uncertainty and debate is an enduring feature of this complex area of criminal law.
References
- Criminal Justice Act 1967
- DPP v Smith [1961] AC 290
- Hyam v DPP [1975] AC 55
- Law Commission (2006) Report on Murder, Manslaughter and Infanticide (Law Com No 304). The Stationery Office.
- Ormerod, D. and Laird, K. (2021) Smith, Hogan, and Ormerod's Criminal Law. 16th edn. Oxford 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) 83 Cr App R 267
- R v Woollin [1999] 1 AC 82
- Simester, A.P. and Sullivan, G.R. (2016) Simester and Sullivan's Criminal Law: Theory and Doctrine. 6th edn. Hart Publishing.
