Studying British law after having been trained in Canadian jurisprudence is fascinating. As an exchange student at the University of Manchester’s School of Law, I have been thrilled to learn that many cases that I studied originally at the University of Toronto were also being taught in a British context. As it is self-evident that Canadian law is functionally built upon fundamental British cases, I have still been pleasantly surprised at the nuances between jurisdictions.

As an example, in my Introduction to British Criminal Law course, we discussed the general definition of mens rea. While both Canadian and British jurisprudence understands mens rea to constitute the mental element of a crime, which includes both intention and foresight, one case in particular stood out to me that I had not previously studied in Canada. In R v. Woollin [1999] AC 82, a new concept of ‘oblique intention’ has been isolated.

In Woollin, the defendant killed his three month old son by throwing the baby onto a hard floor. The evidence presented by the defence illustrated that the defendant did not in fact aim to kill the child, as he simply lost his temper and threw the baby in a fit of rage. To summate, the direct aim of the defendant was not to kill the baby. Accordingly, the trial judge directed the jury to convict the defendant of murder if the defendant had realized there was a ‘substantial risk of serious harm’.

Murder, in both Canadian and British jurisdictions, requires an intent to kill or cause grievous bodily harm. On appeal, the House of Lords found that the jury direction was fundamentally inappropriate. Lord Steyn stated the following:

“[I]n the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.” [emphasis added]

The main research question to be analyzed from this case is the following: when should a consequence be attributed to a defendant? In British law, fascinatingly, from Woollin developed a second form of intention known as ‘oblique intention,’ where when the consequences are ‘virtually certain to occur’, intention does not need to be proven.

The threshold, therefore, in criminal law is very high to not need intention; foreseeability must be that death is a virtually certain result of the defendant’s actions. This case splits the intention aspect of mens rea into two categories: direct (when D acts with the aim of bringing the result) and oblique (when D acts and despite an attempt at an alternate result, there is intention if death is foreseen as virtually certain).

A further question building off of Woollin is whether the jury has any moral elbow-room after oblique intention is proven. This question was answered in Matthews [2003] EWCA Crim 192, where the Court of Appeal considered this query. Matthews is a complicated case with disputed facts: to summarize, the defendants robbed the victim, assaulted them and then threw them from a bridge, where the victim later drowned. Although oblique intention was shown, the Court of Appeal found that the jury could still decide whether intention for mens rea was then established.

Pivotally, Matthews becomes important in specific factual matrixes where a defendant might not be culpable because of the circumstances that they find themselves in. For instance, if a parent threw a child from a burning building, in the unlikely event that the parent is later prosecuted, a jury could still fin that the defendant did not intend the death of the child, despite the near certainty that the child would suffer grievous bodily injury from being thrown from the top of the building. In these situations, distinctions between oblique intention and general intention become vital for a jury, when deciding upon conviction.

Looking forward to learning more on this great big adventure!

Cheers,

Tamie Dolny