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Principles - mens rea - intention

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[ Cases on intention, here ]

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Jury normally decides what intention is.

Common sense of the jury

Direct intention


If D points a gun and fires it is immaterial if poor shot or out of range. He has intention, he has:

  1. Purpose

  2. foresight of certainty


Therefore D has intention if he realised the result was certain to follow.

Problem area.....

Indirect (or sometimes called oblique) Intention .... I didn’t mean to kill him, harm her, cause as much damage, start a fire.


Foresight of certainty = intention

Indirect intention requires foresight of the consequences.


Intention is not some form of recklessness, it is more than that.

There is a line of cases where the meaning of intention has been developed.


Note: each of these cases is relevant, they were not overruled by the later cases, the ration decidendi was refined.

The line of cases, and CJ Act.

DPP v Smith [1960] HL (PC thrown from car bonnet)


Section 8 Criminal Justice Act 1967 (subjective test required)


Hyam v DPP (1975) HL (Petrol through letter box)


R v Cunningham (1981) HL (Intention to GBH sufficient)


R v Moloney (1985) HL (Quick draw)


R v Nedrick (1986) CA (Paraffin through letter box)

R v Hancock and Shankland (1986) HL (Concrete on taxi)

DPP v Smith [1960] HL

Held: Intention can be formed instantly,

The objective test of intention used was reversed by the Criminal Justice Act 1967


Section 8 Criminal Justice Act 1967

A court or jury, in determining whether a person has committed an offence,


(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but


(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

R v Cunningham (1981) HL

Intention to cause serious injury (GBH) is sufficient to found a charge of murder, it is not necessary to intend the death of V.



intention = foreseen as highly probable (or merely probable)

Therefore wider than certainty.



intention - leave it to the jury =

"foresaw, as natural consequence" (little short of overwhelming, or virtually certain)

…if ‘yes’ jury can infer intention

viz. it is evidence of intention , not necessarily is intention .

Hancock & Shankland

- ordinary usage - not foresight of consequences

- if evidence of foresight intention can be inferred...


"Greater probability of consequences

...more likely they were foreseen

...if consequences foreseen

...the greater probability consequences intended"

but; ‘natural consequences’ ambiguous.



- death or serious injury a ‘virtual certainty’ (barring novus)

and D realised.

so .....

Intention can be inferred from

‘virtual certainty’


  • Consequences which are his purpose, foresees and desires irrespective of probability


  • Can be inferred, if virtually certain and he knows it, though not desired.


Red triangle indicates important information

‘foresees virtual certainty’ = subjective

‘is virtually certain’ = objective

Both have to be proved.

High standard on prosecution.

Upheld in Woollin (1998)

with some refinements of the ratio decidendi of Nedrick.

Foreseeability in mens rea
  • Consequence desired: intention
  • Consequence foreseen as virtually certain: intention may be found
  • Consequence foreseen as probable: typically recklessness (subjective)
  • Consequence foreseen as possible: typically recklessness (subjective)
  • Consequence not foreseen but ought to have been: negligence (objective recklessness) (now rare since R v G [2003])
  • Consequence even reasonable man would not foresee: strict liability

Draft Criminal Code

"A person acts ‘intentionally’ with respect to...a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events."

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