On 13 March 2023, The Privy Council handed down judgment in respect to Mr James Miller’s appeal in The Bahamas. This judgment has important implications for the approach which trial judges should take when directing juries and raises issues of fairness at trial.
In June 2009, Mr Miller was convicted of the attempted murder of a police officer during the course of an armed robbery. At trial, the prosecution argued that Mr Miller had intended to kill the police officer, having fired two shots in her direction using a shotgun. The officer was hit by a non-fatal blow but suffered injuries. Mr Miller was originally sentenced to life imprisonment. After successfully appealing against his sentence in the Court of Appeal, Mr. Miller was handed a sentence of 40-years’ imprisonment. This is the most severe sentence for attempted murder that has been imposed in over a decade in The Bahamas.
In January 2023, we appeared in the Privy Council appealing Mr Miller’s conviction and sentence. At a criminal trial, the role of judges is to give a neutral summary of the evidence to the jury. The legal team argued that the judge’s summary of Mr Miller’s case had been unfair in the description of the offence.
The judge tried to explain the ‘test’ for intent in the Penal Code to the jury. The ‘test’ is intended to cover a broad spectrum of circumstances, including where an alternative purpose is given for a course of conduct.
In explaining what the Privy Council called an “unnecessarily complex” test in the Bahamas Penal Code, the judge combined the prosecution’s case with the law on intent, effectively telling the jury what they might reasonably conclude from Mr Miller’s actions. The judge had told the jury that the “…only inference that can be drawn” from the alleged conduct was that Mr Miller had intended to kill the police officer.
This, the Privy Council agreed, was the wrong approach to take and that the judge gave a muddled explanation of what constitutes ‘intent’ in law. In doing so, he had made four misdirections which were regarded as important to how the jury might have approached the case.
The Correct Approach to Intent
It is up to a jury to decide whether a defendant intended a particular course of conduct. A key element in establishing criminal liability for certain offences is to work out the defendant’s thinking at the time of their alleged crime.
In the Bahamas, section 12 of the Bahamas Penal Code provides two routes to establishing that an accused person intended something. Firstly, the Penal Code describes intention as a person’s desire for a particular consequence. In other words, intention in the context of murder or attempted murder requires that the accused person must have had a deliberate aim or purpose to cause the death of the victim.
Alternatively, the Penal Code equates intention with a belief that a particular consequence will probably be caused as a result of a particular action or actions. This section of the Penal Code assumes someone to have intended to kill, even where it was not their specific purpose, but where “reasonable caution and observation” would have made it obvious that the outcome of a course of conduct would probably have caused or contributed to a victim’s death.
These are two very different ways of arriving at a conclusion that a defendant intended to do something.
Here the Privy Council has made clear that it is critical that judges do not seek to impose their own view of what a defendant intended or was thinking, but to direct the jury to relevant evidence to allow the jury to make their own decision, as the Privy Council explained “…intention is an ordinary facet of human conduct and it is not normally a difficult concept to understand.” In Mr Miller’s case, the judge had tried to give a direction on intent which covered all eventualities of the test in the Penal Code.
The implication of the Privy Council’s judgment is that the trial judge should give a direction on intention which is sensitive to the particular facts of a case. The Board suggested that intention to commit an offence “…will generally be established through the process of drawing an inference from the surrounding, or primary, facts as proved. Such an exercise is part and parcel of the ordinary decision-making process which a jury is required to undertake.”
Or in other words, the prosecution’s case, and evidence, should make it obvious how intention is to be proved. The defendant’s case should further clarify the contentious issues. The judge does not need to go beyond what is in the parties cases to suggest a hypothetical route for the jury to find intention which is not necessary on the facts.
The Privy Council dismissed the appeal, however made important directions that should make it easier and fairer for judges to direct juries on the issue of intent. The Board criticised the overly complex approach to the concept of intent in this case. We hope that following Mr Miller’s case, the law is both clearer and more accessible.
Quote from The Privy Council judgment
“A simple direction inviting the jury to consider whether they were sure that the gunman had intended to kill Corporal Black [the police officer] would have been sufficient without any need to explore the content of section 12(3) [of the Penal Code] at all.”
The Legal Team
The appellant was represented by Edward Fitzgerald KC and Amanda Clift Matthews, Doughty Street Chambers, instructed by The Death Penalty Project. We were instructed by Raquel Hall.