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Simple notes on Fault
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Simple notes on Fault including explanations on subjective and objective recklessness
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Lecture 5 – FaultGENERAL PRINCIPLES –
FAULT (1) Oblique Intention
OBLIQUE or INDIRECT INTENTION: MEANING AND INTERPRETATION
• A concept of intention includes not only acting in order to bring about X, but also
acting with foresight of certainty that X will result – that D can be said to have
intended a result if she or he realised that the result was “certain” to follow from the
behaviour in question
• One might say that a consequence is DIRECTLY intended if D acts in order to produce
it and that it is OBLIQUELY intended if it is not D’s aim, but is known to be certain
• The claim is that the person who foresees a consequence as certain should be
classified as having intended that result rather than having being merely reckless
towards it – and the claim is being made in the knowledge that some killings would
thus be classified as murder rather than manslaughter is the outcome in some cases
• The discussion that follows focuses on the meaning and interpretation adapted by
our courts of OBLIQUE INTENTION for murder
• Do we have a substantive definition? Have our courts come close to an absolute
definition? Or is it still for the jury to have moral elbow room to decide?
MALONEY (1985) A.C.905
SEE FACTS:
• The incident occurred during a Ruby wedding anniversary of D’s maternal
grandparents
• D and his stepfather entered into a disagreement as to who was faster at loading
and firing a shotgun
• V said to D that he “didn’t have the guts” to pull the trigger
• D said he didn’t specifically aim the gun at V but just pulled the trigger and then V
was dead
• The issue on appeal before the House of Lords centred on D’s liability for murder and
particularly the meaning of FAULT FOR MURDER, i.e. OBLIQUE INTENTION
• Generically important statement to our idea of homicide and murder
• How do we define oblique intention?
RATIO:
Consider in full, the leading judgment of Lord Bridge and a number of important statements
herein:
1. The House of Lords began with an assumption that the mens rea of murder is an
INTENTION TO KILL OR TO CAUSE GRIEVOUS BODILY HARM (fault element that the
prosecution has to establish) – murder is a common law crime, it is not statutory –
created in our jurisdiction – lordships are very clear about the fault for murder –
, you are liable for murder if you intend to cause GBH (fault) and not the intent to kill
(conduct) – policy dictates the outcome
NOTE: The lack of correspondence between the CONDUCT ELEMENT an (UNLAWFUL
“KILLING”)
but for mens rea (FAULT) an intent to cause GBH suffices. Rationale dictated by policy
2. The question at issue was the meaning of “intention” itself
3. Lord Bridge affirmed the “Golden Rule” for Intention. In cases of DIRECT INTENT
where it is D’s aim, purpose or desire to bring about the prohibited consequence i.e.
unlawful killing – even if this is unlikely to occur – no elaboration or paraphrase of
the meaning of intent is needed by the jury.
*** Simply ask the jury whether they are “sure” D intended to kill or to cause grievous
bodily harm – no elabortation on defining intention, just leaves the jury to it – fundamental
principle
4. Lord Bridge (talking obiter) referenced the doctrine of Transferred Malice. If D shoots
at A, but kills B, then “even” a first-year law student could explain this
5. In exceptional cases of oblique (indirect) intention D aims to bring about
consequence A, but as a consequence B (corner of their eye – broke a window)
occurs as a concomitant of that conduct then is that intended? – is it an intended
result – intention can be different from motive or desire
Illustratively, D shoots at A through a window and damage to the window occurs
(consequence B)
This consequence B may be seen by D “out of the corner of their eye”
Q: Is it intended?
- A trial judge should explain to the jury that intention can often be something quite
different from motive or desire e.g. D fleeing from justice boards a flight from a
London airport to Manchester to escape pursuit. The flight might be diverted to
Luton because of engine trouble BUT by boarding the Manchester flight plane D has
conclusively demonstrated an “intention” to go there
- Lord Bridge refers to an OVERWHELMING MORAL CERTAINTY THAT D WILL ARRIVE
THERE
6. Lord Bridge presents the hypothetical illustrations of D planting a bomb on an
aircraft to collect the insurance money from lost cargo, or D as part of a terrorist
organisation plants a bomb in X place then warns the authorities, but a bomb
disposal expert is killed in trying to detonate the bomb. In either scenario albeit
obiter, Lord Bridge assumed that D would be liable for murder Woollin would be
manslaughter in these scenarios
7. Significantly, Lord Bridge concluded that a trial judge should ask the jurors 2
fundamental questions:
(a) Was death or really serious injury in a murder case A
NATURAL CONSEQUENCE OF D’S voluntary act?
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