Criminal Law 2: Asynchronous Talk (Transcript)

Last time we looked at the things people do that are part of the construction of a crime; in this
session we are looking at how states of mind (what people think) may also lead to a criminal
offence. Essentially, there are three main blameworthy states of mind: intention, recklessness
and negligence. In this short talk, I’m going to focus on the problem of intention and, in
particular, oblique intention. Oblique intention is a tricky one because, although it is called
intention, it isn’t intention in the way we usually think about it. Usually what we call
intention (that is, wanting or desiring to bring about a certain outcome) is known in the
criminal law as direct intention. Oblique intention is where a D may not desire a particular
outcome but can nevertheless be said to intend it if he foresees it happening. The classic
example is Glanville Williams’ instance of a terrorist who blows up a plane full of
passengers, in order to obtain the insurance on the aircraft itself. The deaths of the passengers
is so intimately bound up with terrorist’s intended actions as to be inseparable. They cannot
be designated as side-effects; therefore, their deaths must be a matter of intention. The
counter-argument here is that, whilst morally speaking it is wrong to designate their deaths as
side-effects, it does not follow, cognitively speaking, that they should be regarded as intended
consequences. Suppose the Prime Minister was to order the shooting down of an airliner full
of British holidaymakers just before hijackers crash it into a skyscraper full of people
attending a World Peace Conference. Obviously, the Prime Minister does not want to kill the
people on board the plane (either as a means or as an end) but can he be said to have oblique
intention, just because he foresees their deaths if he was to succeed in his objective. Of
course, there are important differences between the two scenarios (proportionality for one
thing, plus the fact that the passengers were doomed either way). But the cognitive problem
remains: is it possible extract intention for mere foresight? Arguably not, because intention
and foresight are two different states of mind. Desiring something is different from foreseeing
something. And so some have argued that it is wrong, as a matter of principle, to derive
foresight from intention. At the same time, we can quite see that someone who does foresee
death or serious injury, to a high degree, as likely to happen if they were to succeed in their
objective is showing sufficient disregard to human life as to attract greater culpability than is
the case for mere recklessness. So there is a tension here between what Alan Norrie calls
cognitivism (how we technically conceive of fault categories in the criminal law) and moral
judgements about who is a murderer. We can see, very obviously, that the terrorist is a
murderer and the Prime Minister is not but mapping this onto technically conceived fault
criteria is a difficult question.

It’s for this reason that I think Alan Norrie is correct when he claims that we should not
expect to achieve “a conclusive position” in the law of oblique intention. This is because of
the moral concerns that underpin the criminal law and, in this case, “the moral basis for
judging someone a murderer.” Oblique intention cannot be entirely divorced from the broader
questions of motive. This is a good way of understanding how and why the law on oblique
intention has changed over the years.

In the case of Hyam v. DPP (1975), the D didn’t like her next-door neighbour and wanted to
frighten her out of the neighbourhood. She didn’t want to the two children to be killed in the
fire. But the House of Lords said she had oblique intention to cause death/serious injury
because she foresaw the consequences (death/serious injury) as highly probable. It’s not hard
to see how that judgement is being made here of the D’s motive: her motive was morally bad
and so it was fitting to designate Mrs. Hyam a “murderer.”
The problem, as far as stability in the law is concerned, is that a case like Hyam is followed
by a very different killing, that of Moloney (1985). If the House of Lords had followed the
Hyam test, it would probably have had to find Mr. Moloney guilty of murder. If you aim a
gun at someone and pull the trigger whilst playing a game of who’s quickest on the draw, it is
indeed highly probable that death/serious injury would result. But the problem here is that
Mr. Moloney does not seem to warrant the label of “murderer” because, again, judgements
are being made regarding the D’s motive. Unlike Mrs Hyam, there was no evidence that he
disliked his stepfather. The death could be characterised as a terrible accident. So the House
of Lords raised the level of foresight to a very high level indeed, that is, foresight of a natural
consequence or a moral certainty. Mr. Moloney did not possess that extremely high level of
foresight, so he could not be guilty of murder. (Though he is, of course, guilty of
manslaughter). It’s reasonable to think that the House of Lords overruled Hyam as a matter of
policy because they felt murder was being defined too widely.

Well that’s fine as far as producing what is thought to be the right result for Mr. Moloney but,
unfortunately, not very long after that we have the case of R. v. Nedrick, a case which is
alarmingly similar, on the facts, to Hyam. That being the case, had the Hyam test been
applied we might have expected a jury to find Mr. Nedrick guilty of murder. But in fact the
court applied a different test and, since this was a decision of the Court of Appeal, it could
not overrule the House of Lords’ decision in Moloney. The Court of Appeal clarified
Moloney so radically that it amounted to a new test; namely, foresight of a virtually certain
consequence. This was an attempt to clarify the otherwise difficult concept of moral certainty
in Moloney. The Nedrick test is slightly more objective than Moloney, and it’s set at a slightly
lower standard. But there’s not much in it, though. To talk about virtually certain is just a way
of talking about certainty, for all practical purposes, in an uncertain world. (That’s the idea
affirmed in the Woollin direction). We can never act with 100% certainty that a particular
means will be necessary or that a by-product is bound to be created. Our actions and plans are
always subject to the intervention of the unexpected. The unexpected may thwart our
purpose, but it does not cancel our intentions or purposes whether direct or indirect. ‘Moral’
or ‘virtual’ certainty denotes a situation where an event will occur ‘barring some unforeseen
intervention.’ So virtual certainty is a kind of certainty. It is the only kind of certainty that in
fact ever exists. Did the D in Nedrick foresee death/serious injury as a virtually certain
consequence? No. Too may different things could happen (the child might wake up and get
up/ the fire brigade might come in time/ the neighbours might rescue the child/ the fire might
burn itself out). So Mr. Nedrick was not guilty of murder. This is arguably problematic
because it means that we are not applying to him the label of “murderer” which we
previously said was the right outcome when applied to Mrs. Hyam, on similar facts.

The policy issue underlying all of these judicial pronouncements was of course the difficult
and emotive question of how widely should you define murder. Which killers should be
labelled murderers? If you set the requirements for oblique intention too low by saying it’s a
question of foreseeing a highly probable consequence then you are possibly defining murder
too widely and a lot of people who might be called manslaughterers end up become
murderers. On the other hand, if you set the requirements for oblique intention too high by
saying it has to be a natural consequence or a moral certainty, or a virtual certainty, then
arguably you are defining murder too restrictively and a lot of people who might be called
murderers become manslaughterers.

So, the decisions over the past 45 years leading up to R v. Woollin can be seen as an attempt
to come up with a definition of homicide that is neither over-inclusive nor under-inclusive. In
other words, a test of oblique intention that stigmatises certain killers as ‘murderers’ but
withholds that label from others whom we might prefer to condemn as manslaughterers, or
indeed not condemn at all. It is an attempt to articulate the principle of fair labelling in the
criminal law within the admittedly difficult statutory structure of the law of homicide.

All of this reflects a fundamental debate within the criminal law between what we can call the
‘orthodox subjectivist’ approach and the ‘morally substantive’ approach. The orthodox
subjectivist approach tends to be what characterises the criminal law: in other words, the
precise distinguishing of different psychological states (intention, recklessness and
negligence and all stops in between). Anthony Duff is an example of someone who critiques
the orthodox subjectivist approach because it doesn’t reflect the nature of our moral
judgements. To judge harm, we need to know about the moral quality of what was intended.
(That’s the issue that was arguably underlying the decisions in Hyam and Moloney). In other
words, intentions reveal bad moral attitudes: they reveal something about the wrongdoer’s
motives. So Duff would argue that if a D exposes their V to a serious risk that should be seen
as murder because such a person is ‘wickedly reckless.’ That is not presently murder in
English law, but Duff thinks it should be. That’s because he argues that the moral quality of
the act is more important than a precise distinguishing of different psychological states. In
practice though it seems easier to talk about what the D intended or foresaw than about how
to evaluate the wrongdoing of his actions. But he raises the question as to whether the law
needs to be supplemented in some way akin to Duff’s moral substantivism? Do we need
something like ‘wicked recklessness’ to make appropriate judgements of guilt in murder
cases? Certainly, some moral evaluations regarding motive do seem to be present in the law
of oblique intention, as we’ve seen. For that reason, we shouldn’t expect settled law in this
area. There’s a conflict between the orthodox subjectivist approach and the morally
substantive approach and it’s this that leads to this dynamic of inclusion and exclusion;
risking the over-inclusion of some Ds like Mr. Moloney and excluding other Ds like Mr.
Nedrick. Modern law is caught in a necessary, structural dynamic of excluding and re-
admitting substantive moral issues into a technically conceived set of fault categories. Or, as
Alan Norrie argues in his article, the cognitivism of the law of intention cannot reflect
broader moral issues; even so, these remain central to judgements regarding criminal
culpability.