Intention: History and Hancock
| Author | Janet Dine |
| DOI | 10.1177/002201838705100107 |
| Published date | 01 February 1987 |
| Date | 01 February 1987 |
| Subject Matter | Article |
Journal
of
Criminal Law
INTENTION: HISTORY AND
HANCOCK
Dr Janet Dine*
With the House
of
Lords’ decision in
R.
v.
Hancock,’
the exact
meaning
of
“intention” in the criminal law has once again become
wholly elusive. Much
of
the controversy surrounding intention has
surfaced in murder cases. The history
of
the definition
of
intention
is inextricably intertwined with malice aforethought. It may thus be
instructive, as an aid
to
understanding intention, to examine some
of
the history
of
malice aforethought. Two interlinked strands run
throughout the history: objectivity and probability. More precisely,
the two questions the courts have found extreme difficulty in
answering are:
1)
do the jury need
to
examine the mind
of
the
defendant
or
may they take an objective stand and assume that his
mind worked in the way an ordinary reasonable juror’s mind would
work?;
2)
as nothing in human affairs is certain, no person can say
that they can, with absolute certainty, achieve a particular result.
The result
of
a particular human action can therefore only be
described as falling on a particular point on a scale
of
certainty
ranging from highly unlikely to virtually certain. At which point
along this scale is a particular result intended?
Is
it intended when it
was foreseen as likely, highly likely, virtually certain?
The Courts have clearly arrived at an affirmative answer in
respect
of
the first question, but, because the two problems have
often been confused,
it
is still interesting to examine the
development
of
that answer.
In Foster’s Crown Law the following statement
of
the law
appeared:*
“In every charge
of
murder, the fact
of
the killing being first
proved, all the circumstances
of
accident, necessity,
or
infirmity are to be satisfactorily proved by the prisoner, unless
they arise out
of
the evidence produced against him: for the law
presumeth the fact to have been founded in malice unless the
contrary appeareth.”
*
Faculty
of
Laws. King’s College, University
of
London
’
[1986)
2
W.L.R.
357.
’
Foster‘s Crown Law (1762)
p.
255.
72
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