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'The Law Commission's review of the law of intention confirms the view…that the English law of intention for murder is based upon an understanding that lacks in two opposite ways. First, as regards direct intention, the law is morally under-inclusive in that it places too much moral weight on a psychological conception of the required mental state. It therefore fails to recognise properly the issue and significance of the concept of 'indiscriminate malice'. Secondly, as regards direct and indirect intention, the law is morally over-inclusive, failing to differentiate culpable and non-culpable acts.'(Norrie, 2006)
Critically discuss the above statement with reference to the doctrine of intention in relation to the crime of murder and the Law Commission's Consultation Paper Homicide (No.177, 2005).
Before we commence our discussion, let us first be quite clear on what is meant by ‘direct intention’, ‘indirect intention’ and ‘indiscriminate malice’ in the context of the above statement.
Intention literally means ‘aim or purpose that guides an action’. Therefore, ‘direct intention’, in the context of murder, means an act committed with the direct purpose of killing, or causing serious harm to, another. This has been one of the mens rea requirements for murder as far back as the 17th Century. Clearly, this precludes an intention to achieve another criminal purpose altogether, where the actor ought reasonably to have foreseen, but did not directly intend, the death of another to be a virtually certain result of his actions, e.g. the intention of a ‘person who places a bomb on a plane for the purpose of making an insurance claim in respect of property but who foresees as a virtual certainty the death or serious injury of those who are on the plane when the bomb explodes.’ This is what Norrie refers to as ‘indiscriminate malice’; ‘malice,’ in that the actor intended to perform an illegal act, and; ‘indiscriminate,’ in that the actor paid little or no regard to the virtually certain consequences of his actions, namely the death of another. It has long been recognised that the law should bring actions of indiscriminate malice within the scope of the crime of murder, but that a strict requirement of ‘direct intention’ would fail to do so; ‘direct intention is simply ‘too narrow for the purposes of criminal responsibility’. Thus, the concept of cognitive ‘indirect intention’ was born, introduced into English law in the case of Nedrick. Such intention does not have to be direct, but can merely involve a degree of foresight which, if possessed, should warrant a conviction of murder rather than manslaughter, a crime which denotes a too low a degree of criminal and moral culpability for actions where the death of another is virtually an incidental certainty. This doctrine, in its current form, was laid down by Lord Lane CJ Nedrick in 1986, and modified by Lord Steyn in Woollin: “Where the charge is murder and in the rare case where the simple direction is not enough, the jury should be directed that they are 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 the defendant appreciated that such was the case.”
Some commentators have argued, as Norrie does at the top of this paper, that such an extension has gone too far; whilst indiscriminate malice now clearly comes within the scope of this extended intention requirement for murder, which is a good thing, other actions are now also included under the crime of murder, crime which, due to the lack of criminal and moral culpability involved, would be more fairly labeled as manslaughter. An example of such an action being so unfairly labeled was provided by Lord Goff in the Nathan Committee Report by the House of Lords Select Committee on Murder and Life Imprisonment : “A house is on fire. A father is trapped in the attic floor with his two little girls. He comes to the conclusion that unless they jump they will all be burned alive. But he also realises that if they jump they are all [virtually certain] to suffer serious personal harm. The children are too frightened to jump and so in an attempt to save their lives he throws one out of the window to the crowd waiting below and he jumps with the other one in his arms. All are seriously injured, and the little girl he threw out of the window dies of her injuries.” The Law Commission, in citing and analyzing this example, came to the conclusion that the father in this case should not be labeled a murderer. Under the concept of ‘indirect intention’ however, the father should be guilty of this second-degree crime. As Norrie notes, the Law Commission were forced to conclude that ‘indirect intention’, by focusing on the knowledge of the father rather than the wishes behind his actions, was morally over-inclusive, failing to differentiate correctly between culpable and non-culpable acts, i.e. between actions of indiscriminate malice, such as the insurance fraudster who blows up the plane with no regard to the life of those on that plane, and actions involving no malice, but which are indiscriminate in their effects, such as the actions of the desperate father in Lord Goff’s example above.
In this paper I shall address these concerns in detail, concluding that a cognitive approach to intention may simply be unsuitable for the crime of murder; it fails to adequately demark the boundaries of culpability between this crime and that of manslaughter. I shall then examine the Law Commission’s Consultation Paper Homicide (No.177, 2005), and shall critically discuss their approach to these problems, concluding with an assessment of how successful these reform proposals would be in their aim of differentiating correctly between culpable and non-culpable acts, if implemented.
As we have already seen from the examples discussed above, Norrie is quite right in his assertions; the requirement of direct intention is too focussed on the specific mental state of the actor with the effect that the charge of murder would be precluded for anyone other than an offender who either directly intended to kill his victim, or at least intended to cause that victim serious harm from which death was a reasonably foreseeable result. Likewise, the extension of this requirement to include indirect intention, whilst at least serving to bring crimes of indiscriminate malice under the scope of ‘murder’, also serves to bring other such actions under this label, actions which should only be considered manslaughter, in light of the lower degree of criminal culpability possessed by their perpetrators. In other words, it is not always fair to equate foresight of a virtually certain result with intention. Let us now look at the reforms to the doctrine of direct intention, which have been proposed by the Law Commission in their Report on Homicide, and assess to what extent these reform might actually serve to correct the current inadequacies:
In this Report, the Law Commission make two different reform proposals; the first of these is to create a statutory definition of intention which avoids the problems of indirect intention being construed too widely by a jury; the second is to codify the existing common law doctrine of indirect intention, but to modify it so that the current problems of indirect intention can be avoided. Both of these proposals are therefore designed to rectify the problem of indirect intention being construed too widely, whilst at the same time allowing this doctrine to continue its prosecution of indiscriminate malice as murder where appropriate. The rationale behind both of these alternative proposals is to rectify the distinction which can, in exceptional cases, exist between intention, in its natural form, and intention implied by reasonable foreseeability/ virtual certainty. They reform proposals recognise that it is possible for an offender to have not intended a particular outcome, even though he or she may have realised that such an outcome was a virtually certain consequence of their actions. This is commonly known as the ‘Woolin’ problem.
Under the first proposal, the Commission have state that ‘It is crucial that a statutory definition of intention should not cause injustice, or absurdity, by deeming certain conduct to be intended when the circumstances show it to be otherwise’. Thus, under this first proposal, the Commission propose to insert a proviso into a statutory definition of intention, i.e. ‘A person is not to be deemed to have intended any result, which it was his or her specific purpose to avoid.’ This should not be seen as reinserting a motive assessment into that of intention, but rather to provide a means by which a jury will not be forced to convict someone of murder, in an exceptional case where that offender specifically did not intend to cause death even though he knew it would almost certainly result from his actions.
Under the second proposal, the Commission suggest a codification of the current doctrine of intention, modified to take account of those exceptional cases where it would be unfair to equate foresight of a virtually certain result with intention, might be as follows. Such a formulation might read as follows:
“(1) A person is to be regarded as acting intentionally with respect to a result when he or she acts in order to bring it about.
(2) In the rare case where the simple direction in clause (1) is not enough, the jury should be directed that: they are not entitled to find the necessary intention with regard to a result unless they are sure that the result 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.
(3) In any case where the defendant’s chance of success in his or her purpose of causing some other result is relevant, the direction in clause (2) may be expanded by the addition of the following phrase at the end of the clause (2) direction: or that it would be if he or she were to succeed in his or her purpose of causing some other result, and that the defendant appreciated that such was the case.”
This would have the effect of maintaining the current law in relation to virtual certainty, which as Lord Steyn pointed out in Woolin, “has [over a period of 12 years since Nedrick] apparently caused no practical difficulties,’ whilst at the same time, limiting the doctrine of indirect intention so as to exclude those situations where an offender might have seen death as being virtually certain, but where he specifically tried to avoid it. This proposal purports to do this by providing the jury with more specific guidelines as to when they are entitled to infer indirect intention.
Both of these reform proposals are encouraging; it would seem that the Law Commission is heading in the right direction at last. The first proposal specifically precludes the Woolin problem with the insertion of a provision which, although purportedly reintroducing a motive element to the doctrine of intention, can actually be used to ensure that intention is not implied where it would be unfair to do so. The second is less specific, but purports to achieve the same ends by clarifying the necessary circumstances in which indirect intention should be implied.
In conclusion, I would favour the first proposal for the following reason; the second proposal will only slightly modify the doctrine of indirect intention, and will only slightly limit its scope. The proviso contained in the first proposal however, is, as yet, unlimited in its scope, and as such, can be used by a jury to greater effect. This may have the result of reverse injustice, i.e. offenders who should morally be guilty of murder escaping this label for the lesser conviction of manslaughter, but I feel that it will so significantly decrease the chances of the reverse occurring, i.e. offenders who should only be found guilty of manslaughter being labeled as a murderers, that such a risk is justified; after all, it is more important to encourage this latter phenomenon than it is to prevent the former from occurring at all costs, especially in light of the huge sentences which are imposed on those offenders convicted for the crime of murder.
Law Commission's Consultation Paper Homicide (No.177, 2005)
Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment (HL paper 78-1, 1989).
A Ashworth, Principles of Criminal Law (4th ed 2003)
A Norrie, “Subjectivism, Objectivism, and the Limits of Criminal Recklessness” (1992) 12 OJLS 45.
A P Simester, “Why Distinguish Intention from Foresight?’” in A P Simester and A T H Smith, Harm and Culpability (1996) 71.
Williams, G. (1955) The definition of Crime Current Legal Problems 8, 107-30
Smith, A. H. (2004) 'Criminal Law: The Future' Criminal Law Review, Dec, 971-80
 A definition provided by the Oxford English Dictionary.
 See Lord Coke’s classic definition involving ‘malice aforethought’.
 Law Commission Report: Homicide [No.177; 2005] para 4.6
 Ibid, para 4.6
 1986 (83) Cr App R 267
  1 AC 82.
  1 AC 82, at 96
 Lord Goff in the Nathan Committee Report, Report of the House of Lords Select Committee on Murder and Life Imprisonment (HL paper 78-1, 1989).
 In the statement at the top of this paper, A. Norrie states: 'The Law Commission's review of the law of intention confirms the view…that … indirect intention… is morally over-inclusive, failing to differentiate culpable and non-culpable acts.' (Norrie 2006)
 Report No. 177; 2005
 In this case, D had a grudge against a woman and had threatened to ‘burn her out’. One night he poured paraffin through her letterbox and set it alight. One of the women dies in the fire. When asked why he did it, he replied ‘to wake her up and frighten her’. Here, he did not intend to kill the woman’s but the question is therefore whether or not he saw such a result as virtually certain.
 Ibid, para 4.42
 Ibid, para 4.50
 Report No. 177 2005 para 4.69
 1 AC 82. at 94
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