lc290 Partial Defences to Murder report - Law Commission

grievous bodily harm when it is his purpose to cause it. In addition, however, a
court or a jury may also find that a result is intended, though it is not the actor’s
purpose to cause it, when, (a) the result is a virtual certainty (barring some
unforeseen intervention) as a result of the defendant’s actions and (b) that the
defendant appreciated that such was the case.
2.48 Even though this is now fairly well settled, it is not without controversy. In
particular there is criticism of the fact that the second limb of the test is not
expressed as a clear rule of law. The final question, whether a defendant had the
requisite intent, does not follow as a matter of law from the jury’s conclusion that
it is sure of (a) and (b). In such circumstances the jury “may” find intention but it is
implicit that it need not if it were to conclude that the defendant did not have the
intention required for murder. This has been criticised as envisaging “that there is
some ineffable, apparently indefinable notion of intent locked in the breast of
jurors.” 49 Other commentators have urged the courts to read the cases as if a rule
of law, rather than a rule of evidence, has been established. 50 Commentators
have also pointed out that it is an anomaly, when considering the state of mind
required for murder, that the law focuses in part on whether, as a fact, death or
serious injury was a virtual certainty rather than focussing exclusively on the
defendant’s belief that it was. 51
2.49 Conversely, other critics have complained that the extension of “intention,”
beyond its primary meaning of generating a result as the purpose of an action,
gives the word an unnatural meaning with which the jury must contend and that
this is highly undesirable in such an important context. 52 Furthermore, the
exclusion of any form of recklessness, as distinct from intention, from the
requirements for murder has been a cause for concern for some critics. They cite,
as an example, the terrorist who plants a bomb in a shopping centre, gives a
warning, but kills a person who does not hear of the warning and is caught in the
blast. Such a defendant would not be guilty of murder under the present law if the
jury thought that, by reason of the evidence of the warning, he might neither have
had the purpose of killing or causing grievous bodily harm nor have had the
necessary foresight to satisfy the requirement of “oblique intent”. The concern of
these critics is that the terrorist is morally, and should in law be, guilty of murder.
They point out that such a person would be guilty of murder in Scotland. The
consequence is that in England and Wales the proper verdict may only be
achievable were the jury to “cheat”. 53
49 Smith and Hogan, Criminal Law (10 th ed 2002) p 72.
50 A P Simester and G R Sullivan, Criminal Law: Theory and doctrine (2 nd ed 2003) p 337.
51 Smith and Hogan, Criminal Law (10 th ed 2002) p 71. The academic literature on “intention”
is vast.
52 See for example, Lord Goff of Chieveley, “The mental element in the crime of
murder”[1988] LQR 30, repeated by him in the debate on the Report of the Select
Committee on Murder and Life Imprisonment, Hansard (HL) 7 November 1989, vol 512, col
467-8. See the contrary view of Professor G Williams, “The mens rea for murder: leave it
alone” [1989] LQR 387.
53 Lord Goff of Chieveley, Hansard, ibid, at col 468. Such “under inclusiveness” might be said
to arise in a case such as Hyam. In such a case the defendant might not know there was
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