Mens rea: Criminal Intention

Let us start with a scenario where, 'P' and 'M' were heavily drunk and in a state of drunkenness they started playing a game of gun draw, to find out who was the quickest draw. 'P' ended up shooting 'M' and 'M' dies on the spot. Do you think 'P' is liable for the murder of 'M'? 'P' in his defense said that he was so drunk that he did not know what they were doing. If that was the true state of P's mind (doesn't know at all what he is doing), then can we truly say that he is guilty? Would there be any difference had 'P', not drunk but, accidentally fell down while in possession of a gun and the gun fired killing 'M'? How should we differentiate between P's mental state in these two different scenarios? Surely in neither of these two situations 'P' had any 'intention' of killing 'M', as in the first case he was intoxicated and was not in a position to form any kind of mens rea (mental state) and in the second case he surely was not in control of his actions.

Contrast it with a scenario where 'W' intended to kill her mother and put poison in a glass of milk, which she usually drank every night before going to bed, and her mother dies drinking that milk. How would you differentiate between 'P' and 'W' here? It is obvious here that 'W' had the intention to kill her mother and has acted in furtherance of that intention. So 'W' must be more culpable than 'P'. But what if W's mother did not drink that milk that night, but died of an heart attack anyway. Would 'W' be still liable for murder. Can we say that 'W' here is more culpable than 'P' as she had 'intention'. Similarly, how would you judge S's mental state when he was very cold at one night and went into someone's property (a straw stack) and lit a fire in one corner, which actually burned down the entire stack.

In all the above scenarios 'P', 'W' and 'S' were responsible for different crimes on the basis of their state of mind (although S was acquitted but on the ground of misdirection), a term expressed as 'Mens rea' in criminal law. It is a tool that criminal law developed to assess the various state of peoples mind to attribute blameworthiness to their acts, and a very important element in the equation of crime. For example, in the case of 'W' above, W's mother died of heart attack and on the evidence it was found that she didn't even touch the milk that night, yet 'W' was held liable for 'attempt of murder'  based purely on her state of mind. Although it is not possible to say exactly how many state are there of peoples mind, but it can certainly be said that they can't be written down in numbers, but law only recognises only three different mens rea for criminal law purposes, e.g. Intention, Recklessness and Gross-negligence. It would be foolish attempt to try and explain all these three mens rea in one blog (as they covers a lot of ground, and almost half of criminal law), in this blog, however, an attempt is made only to discuss criminal 'Intention', in the hope that the readers may realize how difficult and important it is for a criminal lawyer to identify peoples mental state, both to defend and prosecute an accused.

Before going any further with this discussion it is necessary to explain, a little, what 'Mens rea' is. There can be two kinds of mental state, subjectively, a person may have a pre-determined set of mental state and then act upon it (for example intents to kill someone, or intents to rob a house) and objectively, a person is expected to follow a set standard but fails to conform with that standard (for example you are expected not to harm anyone, but even knowing that you harm someone anyway, i.e. being reckless). Law has devised the term 'Mens rea' for both these status of mind. Mens rea is related to the blameworthiness of peoples action. Take for example, you are travelling on a bus and in the rush someone looses his grip and falls on you but then says sorry. You may let it slide knowing that it was an accident (not intentional), but if that same person did it intentionally, will you let it slide? Most likely not. Here your morality would react differently depending on other persons state of mind (intention). Similarly, mens rea can be used to determined the degree of culpability of peoples action. For example, killing someone with intention is more culpable than killing someone recklessly or accidentally, thus intentional killing would invite a more serious punishment than other form of killing.

Criminal Intention:

Intention, may sound very easy to determine (or find, when we talk in relation to a third person), but in most cases it is not. We obviously know that there are situations when we intent to do something and we do it (the result may or may not be expected), this is called a direct intention. It may be hard to believe but it is the rarest form of intention in criminal law. Usually an accused would not say that he intended to commit a crime, and where they deny they had an intention, it is up to the prosecution to prove that he had the necessary intention and thus blameworthy for the crime he committed. So, enters the difficult task of 'finding intention'.

Say, 'X' intends to do 'A' but what, actually, happens is 'B', can it be said that 'X' intended to do 'B'? He certainly intended 'A' but can he argue that his intention had nothing to do with 'B'? But what if the results 'A' and 'B' are so closely connected that he might have foreseen both 'A' and 'B' but expected only 'A', can we say that he didn't have the necessary intention? Lets put this analysis into an example, 'H', who was a worker, unhappy with his working conditions and went on strike. But not all the workers followed him, so he decided to block a road (which was used by the workers to go to work) with a big rock, hence pushed it down on the road. But accidentally the giant rock hit a cab going through the road and the cab driver died instantly. 'H' pleaded he did not intend to kill the cab driver. Would he be liable for murder? In which case the punishment would be the highest, but surely he didn't intend to kill the victim. Again it can be argued pushing a giant rock down on a busy road is bound to cause some damage, even may be death.

In another case the accused being jealous of her boyfriends lover poured petrol through the pigeonhole of her house and lit fire to scare her, but in the resulting fire the entire house burned down and the victim died. Accused pleaded that, the fact that someone could die in the fire did not even cross her mind, can it be said that she did not intend to kill the victim? Surely it is foreseeable, that the probable result of lighting fire in someones house would be death or grievous bodily harm but can it be said that probability (likely result of some act or omission) would the attribute needed to determine intention?

Direct intention is easy enough to find, we aim for something and act towards that aim. But what about oblique intention? How can we find that someone had an intention, even though they denies its existence or the circumstances shows that there was none? One way to do it would be to base our analysis on foreseeability. If we foresee the result then, may be, we can say that we had intended that result. But wouldn't that be going too far? For example, if X shoots someone in the chest then we can surely say he intended to kill the victim, because its virtually certain that the victim will die. What if X shoots towards a crowd? Can we say he intended to kill? Well, its not as sure as shooting someone directly but yes, it is foreseeable that someone might die, if not may be grievously injured. But what if, X shoots to hunt a deer, in a forest, and the bullet hits the victim, who was not in sight of X. Was it foreseeable? In which one of these three scenarios, we can attribute intention to X? All three has some degree of foreseeability. But in the first and second scenario, the degree was the highest and in the third scenario it was the lowest. Thus it appears that, only the foreseeability of result cannot be the sole determining factor of the oblique intention, something more is needed; A degree of certainty.

This convoluted concept has starved the court for a long time, finally Lord Lane CJ, in the case of Nedrick [1986] 1 WLR 1025, drawn the test in following direction, "When determining whether the defendant had the necessary intent, it may therefore be helpful for a jury to ask themselves two questions. (1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence?" Stating these two criteria he further suggested, "If [accused] did not appreciate that death or serious harm was likely to result from his act, he cannot have intended to bring it about. If he did, but thought that the risk to which he was exposing the person killed was only slight, then it may be easy for the jury to conclude that he did not intend to bring about that result. On the other hand, if the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain... to flow from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result."

Let us venture a little into this explanation. The first part of this test rests on the subjective conditions of a person's mind. This part has three elements, first; if a person 'foresee' death or GBH resulting from his act; second, he 'appreciates' it in his mind that such an act could bring about the result of death or GBH; and third, the act is such as it could bring about the result of death or GBH, then it may be inferred that the person has the necessary intention. So, if the person does not foresee the result then he cannot appreciate it, again if he foresees it but fails to appreciate the result in his mind he cannot be said to have the intention. Again, if the act is of a trivial nature and cannot be said to cause the result then it may be inferred that the person did not have the intention. So if the person had foreseen the result, plus appreciated it in his mind, and the very nature of the act was to bring about that result, only then can it be said the person had the 'intention'.

Second part of the test asserts the objective conditions. Where Lord Lane suggests that intention can be inferred, by a third person, if it seems that the result is the 'virtual certainty' of the act and in that case it can be said that the person had foreseen it and appreciated the fact in his mind, unless barred by some unforeseen intervention. That is, when the result of an act is the 'virtually certain' consequence and this 'virtual certainty' was appreciated by the accused before committing the act, only then can it be said that he had the intention. Virtual certainty is much higher requirement than a simple probability. It means the result is 99.99% certain as oppose to a mere likelihood. This decision was supported by House of Lords in the case of Woolin [1998] 4 All E.R. 103.

This form of analysis may again invoke some undesirable results, specially, in medical cases. For example, what would be the position of a medical surgeon who operates on a pregnant mother, in an emergency, where death of either the mother or the child is virtually certain? Can it be said the surgeon is guilty of murder? He had foreseen the result, appreciated it in his mind (and taken the decision to operate), also the act was such as to bring about the result. Similar situation arose in Re A (conjoined twins: surgical separation) [2000] 4 All E.R. 961, where court held that the approach of Nedrick after Woolin can be interpreted either in 'definition' or in 'evidence'. In the former interpretation it is rigid and would liable the doctor of the murder but it can be justified on policy ground, rendering the doctors blameless. In the later interpretation it is flexible and would give the judge a moral high ground to hold the doctor not guilty in the first place as it is a justifiable risk (saving one life rather than letting both die).

Summary

It, then, can be summarized in following way;

The greater the certainty of the result, of an act, the greater is the possibility of the result being foreseen. As such when the result is virtually certain, then the possibility of it being foreseen and an appreciation of the result in the mind of the actor, is inferred, unless there are some unforeseen intervention (i.e. intoxication, loss of self control). In that event only an intention can be found, provided that the act is not of a trivial nature. This may be expressed in this equation: 'Virtual Certainty+Foreseeability+Appreciation = Intention'. However, where the risk is justified, even though the act is culpable the person may be rendered blameless on the moral high ground or for policy reasons.

(Disclaimer: Most of the examples, used in this blog, are taken from facts of various cases. A proper reference may not have been cited in all cases due to the nature and writing style of this blog, but that does not mean blogger is claiming any of these ideas as his own, except for the arrangement of these materials. Readers' query regarding reference of any idea and example, used in this blog, would be entertained to the best of bloggers knowledge)