Historically for a charge of murder to succeed the court required proof of the malice aforethought of the accused. In recent times there has been a redefining of intention as demonstrated in R v Moloney  and R v Woollin . The required element of premeditation has been altered such that an intention to cause someone serious bodily harm can now equate to intention to kill. Juries are instructed to examine the foresight of the accused but should be told to consider what the accused actually foresaw as opposed to what he ought to have foreseen making the test of foreseeability a subjective test.
Recklessness has also been used in the courts to prove the intention of the accused. Cases such as R v Cunningham  and have demonstrated how recklessness can be used to prove a charge of murder. The approach taken by the courts in applying recklessness using the case of Cunningham was that the defendant was aware of the risk involved in his action yet still continued in his venture. Caldwell widened the application by considering recklessness in situations where the accused either considered the risk to be minimal or that there was no risk at all.
This notion was confirmed by Lord Keith in R v Reid  where he stated that ‘ absence of something from a person’ s state of mind is as much part of his state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind that is a disregard of a recognized risk’ . Where the courts are unable to prove the intention of the accused a lesser charge of manslaughter is likely to be substituted.
The use of manslaughter is usually applied where the intent of the accused is oblique. The oblique intent is where the accused is aware that his actions might cause the death of the victim but this is not what the accused desires to happen. With direct intention, the accused actually wanted to kill the victim and the courts can invariably use the test for the foresight to support this assertion.
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