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Criminal law formative - generic feedback
Criminal Law (LW2220)
University of Leicester
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© Dr Daniel Bansal Leicester Law School
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Criminal law Formative assessment: feedback
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The formative question is concerned with the law relating to ‘intention’ in criminal law. The question is divided into two sections (a) and (b); the former requires a doctrinal discussion of the law to the facts, and the latter requires a normative and critical analysis of what the law should be. You could have divided your answers into two parts; similarly, you could have dealt with both issues interrelatedly.
(a) Does M intend to cause B serious injury?
Numerous offences in criminal law, including murder, require proof of intention as to the resulting harm. As currently understood, there are two variants of intention in English criminal law. These are direct and indirect intention. Typically, when directing the jury upon intent, it is advisable to avoid paraphrasing what is meant by intention; it is an ordinary English word.
Direct: D (directly) intends a result if he acts with the aim or purpose of bringing it about, per Duff. In our scenario, it is reasonable to conclude from both the circumstances and textual evidence that M did not act with the aim or purpose of harming her child. The opposite is true: her direct intention was to prevent harm to her child. For this reason, it is necessary to consider the alternative.
Indirect: The current doctrinal position provides that D (indirectly) intends a result if he acts, the prohibited result was a virtual certainty of D’s conduct, and D appreciated that such was the case, per Woollin [1999] AC 82. Note, the HL changed the jury direction to ‘find’ from ‘infer’, as was previously used in Nedrick [1986] 1 WLR 1025. Although the court in Woollin limited its model direction to murder, the test appears to be applied across the criminal law. Therefore, the jury must answer the following three questions in the affirmative to hold M criminally liable for B’s injuries/death:
- B’s bodily injuries were a virtually certain consequence of being dropped from a third-floor window by M;
- M appreciated (1) at the time of acting;
- Following an assessment of M’s state of mind, they find the result to be an intended one.
When answering part (a), it is important not to deviate from the above formula by using words such as ‘high probability’, ‘natural consequence’, nor ‘evidence from which the jury may infer intention’. While the appellate courts have taken these approaches in previous years, this has been overruled by the HL in Woollin.
Similarly, it is important to avoid the conclusion that if the result is virtually certain in fact, then this alone is proof of intention – it is necessary, and indeed fundamental, to undergo an assessment of M’s state of mind to see whether the requisite degree of culpability has been established. This is clear from the model direction of Lord Steyn in Woollin and was confirmed in (the somewhat ambiguous judgment of) Srtinger [2008] EWCA Crim 1222, which some of you included within their answers.
Those papers that obtained the highest marks explained why this is the case, citing the Criminal Justice Act 1967, s. 8, which provides that:
© Dr Daniel Bansal Leicester Law School
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A court or jury, in determining whether a person has committed an offence, (1) 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 result of those actions; but (2) shall decide whether he did intend or foresee that result.
Following this doctrinal analysis, you should have provided a reasoned conclusion as to whether they think M intended to cause B’s injuries. If so, M would satisfy the AR and MR of murder (although you were not expected to state this in your answers – we have not yet covered homicide offences).
M likely satisfies the evidential criteria to have intended B’s injuries, but whether the jury finds intention is a distinct and separate question. Although the jury may be satisfied with the evidential threshold to find M liable, they may return a not guilty verdict. They have the discretion to find that M did not intend death or GBH despite the relevant foresight. As confirmed in Matthews and Alleyne (2003), Lord Steyn’s model direction in Woollin provides an evidential test which must be satisfied before the jury may convict of murder. But it does not necessarily provide a definition of intention, and the jury are not obliged to find intention simply because the test is met. This is the sort of case in which juries may wish to use their “moral elbow room” to acquit M, even if they are of the view that she foresaw B’s injuries as a virtual certainty.
(b) Should M be held to have intended B’s injuries?
Following the above doctrinal analysis, you should move to consider the normative/critical aspect to the question: whether the outcome in (a) is desirable. Here are some considerations that you could have engaged with. Please note that this list is not exhaustive, and you could have approached this question in many different ways.
The evidential and definitional approach to intention in criminal law. Is it desirable for jurors to be afforded ‘moral elbow room’ (per Horder) in ‘hard cases’ such as these? If such elbow room is desirable, and an evidential approach preferential, what factors may tip the jury towards finding intention?
If the evidential or definitional approaches are discussed, you should also state the benefits and disbenefits of each. For example, the evidential approach offers maximum juror flexibility to make moral decisions based on broad concepts such as ‘justice’. Conversely, the definitional approach offers certainty and is more straightforward for jurors to understand.
The utility of Duff’s test of failure in ascertaining an individual’s culpability. E., would M count her actions as a failure if the result did not ensue? In our scenario, M would not have regarded her actions as a failure had B suffered no injuries/death – in fact, this would have been desirable!
Students may consider the blurring of the boundaries between recklessness and intention. One of the problems with indirect intention (if one adopts an evidential approach) is finding intention from the foresight of a virtual certainty. This could, therefore, be argued as straddling recklessness/direct intention. Note, however, that there are differences between indirect intention and Cunningham recklessness; the latter must be unjustifiable, whereas that is not a (formal) consideration/requirement within indirect intention.
Many papers argued in favour of acquitting M; concluding that M did not indirectly intend B’s injuries. Or, that although M did indirectly intend B’s injuries, the legal definition should be limited
Criminal law formative - generic feedback
Module: Criminal Law (LW2220)
University: University of Leicester
