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Title : R. v Woollin (Stephen Leslie)
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Status: Positive or Neutral Judicial Treatment

*82 Regina Respondent v Woollin Appellant

House of Lords
22 July 1998

[1998] 3 W.L.R. 382

[1999] 1 A.C. 82
Lord Browne-Wilkinson , Lord Nolan , Lord Steyn , Lord Hoffmann and Lord Hope of
Craighead
1998 June 15, 16; 25; July 22
Crime—Homicide—Murder—Mental element—Defendant throwing baby on to hard
surface fracturing its skull—Whether having intention to cause serious bodily
harm—Direction to be given to jury
The appellant lost his temper and threw his three-month-old son on to a hard
surface. The child sustained a fractured skull and died, and the appellant was
charged with murder. The judge directed the jury that they could not infer that
the appellant had intended to do the child really serious harm unless they were
quite sure that serious harm had been a virtual certainty from what he was doing
and he had appreciated that that was the case. Subsequently, however, he told
them that if they were quite satisfied that the appellant must have realised and
appreciated when he had thrown the child that there was a substantial risk that
he would cause serious injury to the child it would be open to them to find that
he had intended to cause injury and they should find that the offence of murder
was proved. The appellant was convicted, and the Court of Appeal (Criminal
Division) dismissed his appeal against conviction.
On his appeal:-
allowing the appeal, quashing the conviction of murder and substituting a
conviction of manslaughter, that where a defendant was charged with murder
and the simple direction that it was for the jury to decide whether the defendant
had intended to kill or do serious bodily harm was not enough the jury should be
directed that they were not entitled to find the necessary intention for a
conviction of murder unless they felt sure that death or serious bodily harm had
been a virtual certainty (barring some unforeseen intervention) as a result of the
15/07/2020 Delivery | Westlaw India Page 3

defendant's actions and that the defendant had appreciated that such was the
case, the decision being one for them to be reached on a consideration of all the
evidence; that the use of the phrase "a virtual certainty" was not confined to
cases where the evidence of intent was limited to admitted actions of the
accused and their consequences; and that the use by the trial judge of the
phrase "substantial risk" had enlarged the scope of the mental element required
for murder and been a material misdirection (post, pp. 87C-D, 93C-D, 95A-96B,
97A-B).
Reg. v. Nedrick [1986] 1 W.L.R. 1025, C.A. applied .
Reg. v. Moloney [1985] A.C. 905, H.L.(E. ) and Reg. v. Hancock [1986] A.C.
455, H.L.(E.) considered .
Per curiam. It is unlikely, if ever, to be helpful to direct the jury in terms of the
questions "How probable was the consequence which resulted from the
defendant's voluntary act?" and "Did he foresee that consequence?" These
questions detract from the *83 clarity of the direction that should be given (post,
pp. 87C-D, 96G.
Decision of the Court of Appeal (Criminal Division) [1997] 1 Cr.App.R. 97
reversed .
The following cases are referred to in the opinions of Lord Steyn and Lord Hope of
Craighead:

Attorney-General's Reference (No. 3 of 1994) [1998] A.C. 245; [1997] 3

W.L.R. 421; [1997] 3 All E.R. 936, H.L.(E.) .

Director of Public Prosecutions v. Smith [1961] A.C. 290 ; [1960] 3 W.L.R. 92;
[1960] 2 All E.R. 450, C.C.A. .; [1961] A.C. 290; [1960] 3 W.L.R. 546; [1960] 3
All E.R. 161 , H.L.(E.) .

Reg. v. Cunningham [1982] A.C. 566; [1981] 3 W.L.R. 223; [1981] 2 All E.R.
863, H.L.(E.) .

Reg. v. Hancock [1986] A.C. 455; [1986] 2 W.L.R. 357 ; [1986] 1 All E.R. 641,
H.L.(E.) .

Reg. v. Hyam [1975] A.C. 55; [1974] 2 W.L.R. 607; [1974] 2 All E.R. 41,
H.L.(E.) .

Reg. v. Moloney [1985] A.C. 905; [1985] 2 W.L.R. 648; [1985] 1 All E.R. 1025,
H.L.(E.) .

Reg. v. Nedrick [1986] 1 W.L.R. 1025; [1986] 3 All E.R. 1, C.A. .

Reg. v. Powell (Anthony) [1999] A.C. 1; [1997] 3 W.L.R. 959; [1997] 4 All E.R.
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545, H.L.(E.) .

The following additional cases were cited in argument:

Reg. v. Belfon [1976] 1 W.L.R. 741; [1976] 3 All E.R. 46, C.A. .

Reg. v. Gregory [1995] Crim.L.R. 507, C.A. .

Reg. v. Lawrence (Stephen) [1982] A.C. 510; [1981] 2 W.L.R. 524; [1981] 1 All
E.R. 974, H.L.(E.) .

Reg. v. Scalley [1995] Crim.L.R. 504, C.A. .

Reg. v. Vickers [1957] 2 Q.B. 664; [1957] 3 W.L.R. 326; [1957] 2 All E.R. 741,
C.C.A. .

Reg. v. Walker (John) (1990) 90 Cr.App.R. 226; [1990] Crim.L.R. 44, C.A. .

Rex v. Steane [1947] K.B. 997; [1947] 1 All E.R. 813, C.C.A. .

APPEAL from the Court of Appeal (Criminal Division).

This was an appeal by Stephen Woollin by leave of the House of Lords (Lord
Browne-Wilkinson, Lord Steyn and Lord Hoffmann) given on 14 January 1998 from
the decision of the Court of Appeal (Criminal Division) (Roch L.J., Collins J. and
Judge Myerson Q.C.) given on 3 December 1996 dismissing the appellant's appeal
against his conviction of murder at Leeds Crown Court (Judge Savill Q.C., Recorder
of Leeds, and a jury) on 15 December 1995. The Court of Appeal certified the
following questions of general public importance:

"1. In murder, where there is no direct evidence that the purpose of a

defendant was to kill or to inflict serious injury on the victim, is it
necessary to direct the jury that they may only infer an intent to do
serious injury if they are satisfied (a) that serious bodily harm was a
virtually certain consequence of the defendant's voluntary act and (b) that
the defendant appreciated that fact? 2. If the answer to question 1 is
'Yes,' is such a direction necessary in all cases or is it *84 only
necessary in cases where the sole evidence of the defendant's intention
is to be found in his actions and their consequence to the victim?"

The facts are stated in the opinion of Lord Steyn.

Robert Smith Q.C. and Tom Bayliss for the appellant. Where there is no direct
evidence that the purpose of a defendant is to kill or cause grievous bodily harm, the
judge should direct the jury that they must have regard to the defendant's foresight of
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the consequences of his action as evidence from which they may infer the necessary
intent. He must make clear that foresight of consequences, if found to exist, can
amount to no more than evidence from which they may infer that the defendant did
have the necessary intent. The question of intent is still a matter of inference for the
jury as to a subjective state of mind: see Reg. v. Moloney [1985] A.C. 905 , 928e-f.
[Reference was also made to Rex v. Steane [1947] K.B. 997 ; Reg. v. Vickers [1957]
2 Q.B. 664 ; Director of Public Prosecutions v. Smith [1961] A.C. 290 ; Reg. v. Hyam
[1975] A.C. 55 ; Reg. v. Belfon [1976] 1 W.L.R. 741 ; Reg. v. Walker (John) (1990)
90 Cr.App.R. 226 and Criminal Law; Legislating the Criminal Code: Offences against
the Person and General Principles, Law Com. No. 218 (1993) (Cm. 2370), Appendix
A (Draft Criminal Law Bill with Explanatory Notes).]
There is no necessary or appropriate connection between foresight of a natural
consequence and intent unless the consequence is little short of overwhelming: see
Reg. v. Moloney , pp. 925h, 926f, 929b. The most appropriate way of describing that
concept, in terms that a jury can readily understand, is to use the phrase "virtually
certain." If a consequence is virtually certain, the probability, and therefore also the
likelihood, of its being foreseen is "little short of overwhelming." Thus the correct
formula for the direction on intent, in cases of murder, is that set out in Reg. v.
Nedrick [1986] 1 W.L.R. 1025 , 1028b-d. Before a jury can infer the necessary intent,
they have to be sure that death or serious injury was a virtually certain consequence
of the defendant's voluntary act, and that the defendant appreciated that that was the
case. The Court of Appeal have wrongly introduced degrees of risk.
There is a further advantage in the use of the phrase "virtually certain" in that it
ensures that a jury will not use a finding of recklessness as evidence from which to
infer the appropriate intent for murder. Although any qualification of "certain" blurs
the distinction between intention and recklessness, the term "virtually certain" comes
closest to the concept of "little short of overwhelming."
Once the judge has decided that the facts of the case are such that it is necessary to
give a direction as to foresight of consequence, it is essential that the direction is
couched in clear and unambiguous terms. The judge must, in every such case,
make clear to the jury that there can be no connection between foresight of a natural
consequence and intent unless the consequence is "little short of overwhelming." If
the judge departs from a direction couched in terms of "virtual certainty" he may fail
to make this clear. It was essential to give a direction in this case that (a) made it
clear to the jury that they should not confuse foresight of consequences with intent;
(b) pointed out that foresight of consequences, *85 as an element bearing on the
issue of intention in murder, was evidence from which they might infer the necessary
intent; and (c) clearly distinguished between the degree of foresight (i.e., foresight of
a consequence that was "little short of overwhelming" or "virtually certain") that might
lead them to infer, as a matter of evidence, that the defendant had the necessary
intent and that which would not permit them to draw the necessary inference. The
only way in which this could be made clear to them was to direct them in the terms
set out in Reg. v. Nedrick [1986] 1 W.L.R. 1025 .
If a direction regarding foresight of consequences is necessary, no arbitrary
distinction can properly be drawn between cases based on the nature of the
evidence available. "Foresight of consequences" is merely part of the evidence relied
on by the prosecution to prove intent. It may form the only evidence; it may be
coupled with "other evidence." It is to be "considered with all the other evidence:"
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see Reg. v. Hancock [1986] A.C. 455 , 474. The decision of the Court of Appeal that
it was permissible to draw a distinction is artificial and unworkable. Either it is
necessary to give the direction or it is not. If it is, the direction must clearly state that
the foresight required is of "virtual certainty," otherwise there is (a) a possibility that
the jury may fail to understand that they may not make the connection between
foresight of a natural consequence and intent unless the consequence is little short
of overwhelming; (b) a danger that they may consider recklessness as part of the
evidence from which they may infer the necessary intent; and (c) no consistency of
approach. There is a further practical difficulty arising from the decision of the Court
of Appeal demonstrated by the fact that, even if there is "other evidence," the jury
may reject it. What approach should they then take?
The use of the words "substantial risk" can never be appropriate to a direction on
intent. It fails to make clear that it is not open to the jury to make an evidential
connection between foresight of a natural consequence and intent unless the
consequence is little short of overwhelming and serves to confuse the necessary
intent for murder with the foresight required in cases where recklessness is sufficient
to found a conviction. The use of the word "risk," however qualified, should be
restricted to directions on recklessness. The courts have consistently stated that
murder is not to be extended to cases where the defendant has been reckless.
If the jury have been fundamentally misdirected as to what finding, on the evidence,
would permit them to draw the inference that the defendant had the necessary intent
for murder, the conviction must be regarded as unsafe.
Peter Collier Q.C. and David Perry for the Crown. The foresight of the probability of
the prohibited consequence in murder, namely, death or serious injury, does not
itself amount to intention but is evidence from which intention may be inferred. As
the probability of a consequence is only one factor to take into account, it is not
necessary to direct a jury in a murder trial in terms of "virtual certainty." What must
be made clear is that it is for the jury to decide, having regard to all the evidence,
whether the defendant intended to kill or cause serious bodily harm. To direct them
that they may only infer an intent to do serious injury if they are satisfied that serious
bodily harm was a virtually certain consequence of *86 the defendant's voluntary act
and that the defendant appreciated that fact would have the effect of limiting their
ability to draw inferences from all the evidence and conclude whether the necessary
mental element had been established. It should be explained to them that the
greater the probability of a consequence the more likely it is that it was foreseen and
that if it was foreseen the greater the probability is that it was also intended.
[Reference was made to Rex v. Steane [1947] K.B. 997 , 1003, 1004; Director of
Public Prosecutions v. Smith [1961] A.C. 290 , 300-301, 331; Reg. v. Lawrence
(Stephen) [1982] A.C. 510 , 519f-h; Reg. v. Hancock [1986] A.C. 455 , 468c-e,
469a-b, 473d, 474a-b and Reg. v. Gregory [1995] Crim.L.R. 507 .]
It is important when considering Reg. v. Nedrick [1986] 1 W.L.R. 1025 to bear in
mind the fact that the appellant in that case had denied responsibility for the act that
led to the victim's death. In his attempt to bring some coherence to the process of
determining intention by reference to a minimum level of foresight (namely, virtual
certainty), Lord Lane C.J. treated the matter as one of substantive law rather than of
evidence. If there is a minimum degree of foresight required before the jury is
entitled to conclude that the prosecution has proved the necessary intent, then what
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was a matter of evidence has become a matter of law and the jury's ability to find
facts proved to the requisite standard has been limited. This is not consistent with
section 8 of the Criminal Justice Act 1967 , nor with what appears to have been
envisaged by Lord Scarman in Reg. v. Hancock. [Reference was also made to Reg.
v. Walker (John) (1990) 90 Cr.App.R. 226 , 233; Reg. v. Scalley [1995] Crim.L.R.
504 and Reg. v. Gregory [1995] Crim.L.R. 507 .]
If a direction involving a reference to "virtually certain consequences," or some
similar expression, is necessary, it would only be appropriate in rare cases. Such a
direction might be appropriate where there was no evidence from which the jury
might infer intent other than the defendant's actions and their consequences. The
question, however, is: for what purpose is the expression being used? If there has to
be a definition of intention, it would have to be the same in all cases. Intention should
have the same meaning throughout the criminal law: see Reg. v. Moloney [1985]
A.C. 905 , 920f. It might be better to refer to "substantial risk," which is more than
"might." The question for the jury should always be: are you sure that he intended . .
. ? Changing the law of murder, especially as regards the intention to cause serious
bodily injury or giving "intent" a defined content, is a matter for Parliament. The Law
Commission's draft Bill refers, in clause 1(a), to the defendant's "purpose."
The judge's summing up correctly left to the jury the question of whether the
prosecution had proved an intention to kill or cause serious bodily harm. The Court
of Appeal was right to conclude that his direction did not confuse intention with
foresight or blur the distinction between intention and recklessness, and the
appellant's conviction was safe.
Smith Q.C. in reply. There is only one clear course: either the Crown are right and
the judge should decline to give the jury any assistance at all regarding probability of
consequences or he must in every case give proper guidance. If, following the
Crown's submission, the jury are to be left simply with section 8 of the Act of 1967,
there remains the diffficulty as to *87 what they are to be told if they come back and
ask for guidance on certain aspects of intention. There must be scope in section 8(b)
for him to give them guidance as to what are the proper inferences to draw in the
circumstances of the case, otherwise they could determine liability in murder on the
basis of a very low probability of consequences.
There is a real possibility that the jury, properly directed, would have acquitted the
appellant of murder.
[Lord Browne-Wilkinson. The appeal will be allowed for reasons to be given later.]
On 25 June 1998 the House of Lords gave judgment allowing the appeal for reasons
to be given later.
22 July. Lord Browne-Wilkinson.
My Lords, I have read in draft the speeches prepared by my noble and learned
friends, Lord Steyn and Lord Hope of Craighead. I, too, assented to this appeal
being allowed, the conviction for murder quashed, the conviction for manslaughter
substituted and the matter remitted to the Court of Appeal to pass sentence.
Lord Nolan.
My Lords, I have had the advantage of reading in draft the speeches prepared by my
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noble and learned friends, Lord Steyn and Lord Hope of Craighead. I agree with
them, and I have nothing to add.
Lord Steyn.
My Lords, by an order made on 25 June 1998 your Lordships' House allowed this
appeal; quashed the conviction of murder and substituted a conviction of
manslaughter; and remitted the matter to the Court of Appeal to pass sentence. I
now give my reasons for assenting to that course.

The case in a nutshell

The appellant lost his temper and threw his three-month-old son on to a hard
surface. His son sustained a fractured skull and died. The appellant was charged
with murder. The Crown did not contend that the appellant desired to kill his son or
to cause him serious injury. The issue was whether the appellant nevertheless had
the intention to cause serious harm. The appellant denied that he had any such
intention. Subject to one qualification, the Recorder of Leeds (Judge Savill Q.C.)
summed up in accordance with the guidance given by Lord Lane C.J. in Reg. v.
Nedrick [1986] 1 W.L.R. 1025 . The guidance of Lord Lane, at p. 1028, had been:

"Where the charge is murder and in the rare cases where the simple
direction [that it is for the jury simply to decide whether the defendant
intended to kill or to do serious bodily harm (p. 1027)] is not enough, the
jury should be directed that they are not entitled to infer 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." (Words in brackets added.) *88

But towards the end of his summing up the judge directed the jury that if they were
satisfied that the appellant

"must have realised and appreciated when he threw that child that there
was a substantial risk that he would cause serious injury to it, then it
would be open to you to find that he intended to cause injury to the child
and you should convict him of murder."
The jury found that the appellant had the necessary intention; they rejected a
defence of provocation; and they convicted the appellant of murder. On appeal to the
Court of Appeal (Criminal Division) the appellant's principal ground of appeal was
that by directing the jury in terms of substantial risk the judge unacceptably enlarged
the mental element of murder. The Court of Appeal [1997] 1 Cr.App.R. 97 rejected
this ground of appeal and dismissed the appeal. Giving the judgment of the Court of
Appeal Roch L.J. observed about Nedrick , at p. 107:

"although the use of the phrase 'a virtual certainty' may be desirable and
may be necessary, it is only necessary where the evidence of intent is
limited to the admitted actions of the accused and the consequences of
those actions. It is not obligatory to use that phrase or one that means
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the same thing in cases such as the present where there is other
evidence for the jury to consider."
The Court of Appeal certified the following questions as of general importance:

"1. In murder, where there is no direct evidence that the purpose of a

defendant was to kill or to inflict serious injury on the victim, is it
necessary to direct the jury that they may only infer an intent to do
serious injury if they are satisfied (a) that serious bodily harm was a
virtually certain consequence of the defendant's voluntary act and (b) that
the defendant appreciated that fact? 2. If the answer to question 1 is
'Yes,' is such a direction necessary in all cases or is it only necessary in
cases where the sole evidence of the defendant's intention is to be found
in his actions and their consequence to the victim?"
On appeal to your Lordships' House the terrain of the debate covered the
correctness in law of the direction recommended by Lord Lane C.J. in Nedrick and, if
that direction is sound, whether it should be used only in the limited category of
cases envisaged by the Court of Appeal. and counsel for the appellant renewed his
submission that by directing the jury in terms of substantial risk the judge
illegitimately widened the mental element of murder.

The directions of the judge on the mental element

The facts of the case are fully set out in the careful judgment of Roch L.J. Given that
the appeal is concerned with questions of law it is unnecessary at this stage to add
to what I have already said about the state of the evidence when the judge came to
sum up. But it is necessary to set out the judge's relevant directions of law with a
brief explanation of the context and implications. The judge reminded the jury that
the Crown *89 did not allege an intention to kill. He accordingly concentrated on
intention to do really serious bodily harm. He further reminded the jury that the
Crown accepted that the appellant did not want to cause the child serious injuries.
The judge then directed the jury:

"In looking at this, you should ask yourselves two questions and I am
going to suggest that you write them down. First of all, how probable was
the consequence which resulted from his throw, the consequence being,
as you know, serious injury? How probable was the consequence of
serious injury which resulted from his throw? Secondly, did he foresee
that consequence in the second before or at the time of throwing? The
second question is of particular importance, members of the jury,
because he could not have intended serious harm, could he, if he did not
foresee the consequence and did not appreciate at the time that serious
harm might result from his throw? If he thought, or may have thought,
that in throwing the child he was exposing him to only the slight risk of
being injured, then you would probably readily conclude that he did not
intend to cause serious injury, because it was outside his contemplation
that he would be seriously injured. But the defence say here that he
never thought about the consequence at all when he threw the child. He
did not give it a moment's thought. Again, if that is right, or may be right,
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you may readily conclude that he did not appreciate that serious harm
would result. It follows from that, if that is how you find, that you cannot
infer that he intended to do Karl really serious harm unless you are sure
that serious harm was a virtual certainty from what he was doing and he
appreciated that that was the case. So, members of the jury, that is how
you should approach this question - and it is a vital question in the case -
'Are we sure that the prosecution have established that the defendant
intended to cause Karl serious harm at the time that he threw him?'" (My
emphasis added.)
The first two questions identified by the judge appear in Lord Lane C.J.'s guidance in
Nedrick [1986] 1 W.L.R. 1025 , 1028b-d. The emphasised passage is a classic
direction in accordance with Nedrick , at p. 1028f.
After an overnight adjournment the judge continued his summing up. He returned to
the mental element which had to be established in order to find the appellant guilty of
murder. On this occasion the judge did not use the Nedrick direction. Instead the
judge directed the jury:

"If you think that he had not given any thought to the consequences of
what he was doing before he did it, then the Crown would have failed to
prove the necessary intent, the intent to cause really serious harm, for
murder and you should acquit him of murder and convict him of
manslaughter. If, on the other hand, you reject that interpretation and are
quite satisfied that he was aware of what he was doing and must have
realised and appreciated when he threw that child that there was a
substantial risk that he would cause serious injury to it, then it would be
open to you to find that he intended to cause injury to the child and you
should convict him of murder."
It is plain, and the Crown accepts, that a direction posing an issue as to appreciation
of a "substantial risk" of causing serious injury is wider than *90 a direction framed in
terms of appreciation of a "virtual certainty (barring some unforeseen intervention)."
If Lord Lane C.J. correctly stated the law in Nedrick , the judge's direction in terms of
substantial risk was wrong. But the Crown argued, as I have indicated, that Nedrick
was wrongly decided or, alternatively, that the principle as enunciated by Lord Lane
does not apply to the present case.

The premises of the appeal

The first premise of any examination of the issues raised by this appeal is that it is at
present settled law that a defendant may be convicted of murder if it is established
(1) that he had an intent to kill or (2) that he had an intent to cause really serious
bodily injury: Reg. v. Cunningham [1982] A.C. 566 . In regard to (2) the intent does
not correspond to the harm which resulted, i.e. the causing of death. It is a species
of constructive crime: see my speech in Reg. v. Powell (Anthony) [1999] A.C. 1 ,
14h-15h and Lord Mustill's concurring observations, at p. 11c. This feature of the law
of murder may have contributed to the problems which courts have experienced with
mens rea in murder. But, unless the House of Lords or Parliament have occasion to
revisit this point, the sufficiency of an intent to cause serious harm is the basic
15/07/2020 Delivery | Westlaw India Page 11

assumption upon which any analysis must proceed. Secondly, I approach the issues
arising on this appeal on the basis that it does not follow that "intent" necessarily has
precisely the same meaning in every context in the criminal law. The focus of the
present appeal is the crime of murder.

The context of the decision in Nedrick

My Lords, since the early 1960s the House has on a number of occasions
considered the mens rea required to establish murder. It would be right to
acknowledge that none of these decisions satisfactorily settled the law. In Director of
Public Prosecutions v. Smith [1961] A.C. 290 the defendant tried to avoid arrest and
killed a policeman by driving off with the policeman clinging to the car. The House
ruled (1) that the defendant committed murder because death or grievous bodily
harm was foreseen by him as a "likely" result of his act and (2) that he was deemed
to have foreseen the risk a reasonable person in his position would have foreseen.
There was widespread and severe criticism of the second part of the decision in
Smith . In retrospect it is now clear the criminal law was set on a wrong course. By
section 8 of the Criminal Justice Act 1967 Parliament reversed the effect of Smith .
Since then one thing at least has been clear: the mental element of murder is
concerned with the subjective question of what was in the mind of the man accused
of murder. In Reg. v. Hyam [1975] A.C. 55 the House of Lords had an opportunity to
consider what state of mind, apart from the case where a defendant acts with the
purpose of killing or causing serious injury, may be sufficient to constitute the
necessary intention. The defendant had burnt down the house of her rival in love,
thereby killing her children. The judge directed the jury to convict the defendant of
murder if she knew that it was highly probable that her act would cause death or
serious bodily harm. The jury convicted her of murder. The House upheld the
conviction by a majority of three to two. *91 But the Law Lords constituting the
majority gave different reasons: one adopted the "highly probable" test; another
thought a test of probability was sufficient; and a third thought it was sufficient if the
defendant realised there was a "serious risk." The law of murder was in a state of
disarray. The decision in Hyam was not only criticised by academic writers but was
badly received in the profession. The next opportunity for the House of Lords to
examine the mental element of murder came in Reg. v. Moloney [1985] A.C. 905 .
The clear effect of Moloney was to narrow down the broad approach to mens rea
adopted in Hyam . In the leading judgment Lord Bridge of Harwich observed in
Moloney with the approval of all the Law Lords, at p. 925:

"But looking on their facts at the decided cases where a crime of specific
intent was under consideration, including Reg. v. Hyam [1975] A.C. 55
itself, they suggest to me that the probability of the consequence taken to
have been foreseen must be little short of overwhelming before it will
suffice to establish the necessary intent." (My emphasis added.)
Lord Bridge paraphrased this idea, at p. 926f, in terms of "moral certainty." In the
result the House adopted a narrower test of what may constitute intention which is
similar to the "virtual certainty" test in Nedrick : see also the answer to the certified
question in Moloney , at pp. 908d and 929h. It is true that Lord Bridge said, at p. 929,
that in the "rare cases" in which it might be necessary to direct a jury by reference to
foresight of consequences it would be sufficient to place the two questions before
15/07/2020 Delivery | Westlaw India Page 12

the jury:

"First, was death or really serious injury in a murder case (or whatever
relevant consequence must be proved to have been intended in any
other case) a natural consequence of the defendant's voluntary act?
Secondly, did the defendant foresee that consequence as being a natural
consequence of his act? The jury should then be told that if they answer
yes to both questions it is a proper inference for them to draw that he
intended that consequence."
It seems clear that Lord Bridge used "natural consequence" as implicitly conveying
the concept of a high probability. But the guidance did not make that clear. The
suggested direction soon caused practical difficulties. The problems caused by the
guidance arose a year later in acute form in Reg. v. Hancock [1986] A.C. 455 . Two
miners on strike had pushed a concrete block from a bridge on to a three-lane
highway on which a miner was being taken to work by taxi. The concrete block hit
the taxi and killed the driver. The defendants were charged with murder. The
defendants said that they merely intended to block the road and to frighten the
non-striking miner. Following the guidance in Moloney the judge (see at pp. 458-459)
directed the jury to ask themselves: "Was death or serious injury a natural
consequence of what was done? Did a defendant foresee that consequence as a
natural consequence?" The jury convicted the defendants of murder. The Court of
Appeal held that the Moloney guidelines, and the judge's direction in terms of those
guidelines, were defective and potentially misleading. The conviction of murder was
*92 quashed. There was an appeal to the House of Lords. In the only speech Lord
Scarman accepted that the Moloney guidelines were misleading since they omitted
any reference to probability. Lord Scarman observed, at p. 473:

"They also require an explanation that the greater the probability of a

consequence the more likely it is that the consequence was foreseen and
that if that consequence was foreseen the greater the probability is that
that consequence was also intended. But juries also require to be
reminded that the decision is theirs to be reached upon a consideration of
all the evidence."
In the Court of Appeal in Hancock Lord Lane C.J., at p. 461d-g, had formulated
guidelines for the assistance of the juries. Lord Scarman, at p. 473g, was not
persuaded that guidelines were desirable. The House did not, however, rule out
guidelines but emphasised that they should be sparingly used.

The problem facing the Court of Appeal in Nedrick

In Hancock Lord Scarman did not express disagreement with the test of foresight of
a probability which is "little short of overwhelming" as enunciated in Moloney. Lord
Scarman also did not express disagreement with the law underlying Lord Lane C.J.'s
model direction in Hancock which was based on a defendant having "appreciated
that what he did was highly likely to cause death or really serious bodily injury." Lord
Scarman merely said that model directions were generally undesirable. Moreover,
Lord Scarman thought that where explanation is required the jury should be directed
as to the relevance of probability without expressly stating the matter in terms of any
15/07/2020 Delivery | Westlaw India Page 13

particular level of probability. The manner in which trial judges were to direct juries
was left unclear. Moreover, in practice juries sometimes ask probing questions which
cannot easily be ignored by trial judges. For example, imagine that in a case such as
Hancock the jury sent a note to the judge to the following effect: "We are satisfied
that the defendant, though he did not want to cause serious harm, knew that it was
probable that his act would cause serious bodily harm. We are not sure whether a
probability is enough for murder. Please explain." One may alter the question by
substituting "highly probable" for "probable." Or one may imagine the jury asking
whether a foresight of a "substantial risk" that the defendant's act would cause
serious injury was enough. What is the judge to say to the jury? Hancock does not
rule out an answer by the judge but it certainly does not explain how such questions
are to be answered. It is well known that judges were sometimes advised to deflect
such questions by the statement that "intention" is an ordinary word in the English
language. That is surely an unhelpful response to what may be a sensible question.
In these circumstances it is not altogether surprising that in Nedrick the Court of
Appeal felt compelled to provide a model direction for the assistance of trial judges.
In Nedrick [1986] 1 W.L.R. 1025 the appellant poured paraffin through the front door
of a house and set it alight. In the fire a child died. The facts were remarkably similar
to those in Hyam [1975] A.C. 55 . The trial judge in Nedrick framed his direction in
terms of foresight of a high *93 probability that the act would result in serious bodily
injury. Lord Lane C.J. observed, at p. 1028:

"When determining whether the defendant had the necessary intent, it

may therefore by helpful for a jury to ask themselves two questions. (1)
How probable was the consequence which resulted from the defendant's
voluntary act? (2) Did he foresee that consequence? If he did not
appreciate that death or serious harm was likely to result from his act, he
cannot have intended to bring it about. If he did, but thought that the risk
to which he was exposing the person killed was only slight, then it may
be easy for the jury to conclude that he did not intend to bring about that
result. On the other hand, if the jury are satisfied that at the material time
the defendant recognised that death or serious harm would be virtually
certain (barring some unforeseen intervention) to result from his voluntary
act, then that is a fact from which they may find it easy to infer that he
intended to kill or do serious bodily harm, even though he may not have
had any desire to achieve that result . . . Where the charge is murder and
in the rare cases where the simple direction is not enough, the jury
should be directed that they are not entitled to infer 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. Where a man realises that it is for all practical purposes inevitable
that his actions will result in death or serious harm, the inference may be
irresistible that he intended that result, however little he may have
desired or wished it to happen. The decision is one for the jury to be
reached upon a consideration of all the evidence." (My emphasis added.)
While I have thought it right to give the full text of Lord Lane's observations, it is
obvious that the italicised passage contains the critical direction. The effect of the
15/07/2020 Delivery | Westlaw India Page 14

critical direction is that a result foreseen as virtually certain is an intended result.

The direct attack on Nedrick

It is now possible to consider the Crown's direct challenge to the correctness of

Nedrick . First, the Crown argued that Nedrick prevents the jury from considering all
the evidence in the case relevant to intention. The argument is that this is contrary to
the provisions of section 8 of the Act of 1967. This provision reads:

"A court or jury, in determining whether a person has committed an

offence - (a) shall not be bound in law to infer that he intended or foresaw
a result of his actions by reasons only of its being a natural and probable
consequence of those actions; but (b) shall decide whether he did intend
or foresee that result by reference to all the evidence, drawing such
inferences from the evidence as appear proper in the circumstances."
Paragraph (a) is an instruction to the judge and is not relevant to the issues on this
appeal. The Crown's argument relied on paragraph (b) which *94 is concerned with
the function of the jury. It is no more than a legislative instruction that in considering
their findings on intention or foresight the jury must take into account all relevant
evidence: see Professor Edward Griew, "States of Mind, Presumptions and
Inferences," in Criminal Law: Essays in Honour of J. C. Smith (1987), pp. 68, 76-77.
Nedrick is undoubtedly concerned with the mental element which is sufficient for
murder. So, for that matter, in their different ways were Smith, Hyam, Moloney and
Hancock . But, as Lord Lane C.J. emphasised in the last sentence of Nedrick , at p.
1028: "The decision is one for the jury to be reached upon a consideration of all the
evidence." Nedrick does not prevent a jury from considering all the evidence: it
merely stated what state of mind (in the absence of a purpose to kill or to cause
serious harm) is sufficient for murder. I would therefore reject the Crown's first
argument.
In the second place the Crown submitted that Nedrick is in conflict with the decision
of the House in Hancock . Counsel argued that in order to bring some coherence to
the process of determining intention Lord Lane C.J. specified a minimum level of
foresight, namely virtual certainty. But that is not in conflict with the decision in
Hancock which, apart from disapproving Lord Bridge's "natural consequence" model
direction, approved Moloney [1985] A.C. 905 in all other respects. and in Moloney
Lord Bridge said, at p. 925, that if a person foresees the probability of a
consequence as little short of overwhelming, this "will suffice to establish the
necessary intent." Nor did the House in Hancock rule out the framing of model
directions by the Court of Appeal for the assistance of trial judges. I would therefore
reject the argument that the guidance given in Nedrick was in conflict with the
decision of the House in Hancock .
The Crown did not argue that as a matter of policy foresight of a virtual certainty is
too narrow a test in murder. Subject to minor qualifications, the decision in Nedrick
was widely welcomed by distinguished academic writers: see Professor J. C. Smith
Q.C.'s commentary on Nedrick [1986] Crim.L.R. 742 , 743-744; Glanville Williams,
"The Mens Rea for Murder: Leave it Alone" (1989) 105 L.Q.R. 387 ; J. R. Spencer,
"Murder in the Dark: A Glimmer of Light?" [1986] C.L.J. 366-367 ; Ashworth,
Principles of Criminal Law , 2nd ed. (1995), p. 172. It is also of interest that it is very
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similar to the threshold of being aware "that it will occur in the ordinary course of
events" in the Law Commission's draft Criminal Code (see Criminal Law: Legislating
the Criminal Code: Offences against the Person and General Principles, Law Com.
No. 218 (1993) (Cm. 2370), Appendix A (Draft Criminal Law Bill with Explanatory
Notes), pp. 90-91): compare also Professor J. C. Smith Q.C., "A Note on 'Intention'"
[1990] Crim.L.R. 85 , 86. Moreover, over a period of 12 years since Nedrick the test
of foresight of virtual certainty has apparently caused no practical difficulties. It is
simple and clear. It is true that it may exclude a conviction of murder in the often
cited terrorist example where a member of the bomb disposal team is killed. In such
a case it may realistically be said that the terrorist did not foresee the killing of a
member of the bomb disposal team as a virtual certainty. That may be a
consequence of not framing the principle in terms of risk-taking. Such cases ought to
cause no substantial difficulty since immediately below murder there is available a
verdict of manslaughter which may attract in *95 the discretion of the court a life
sentence. In any event, as Lord Lane C.J. eloquently argued in a debate in the
House of Lords, to frame a principle for particular difficulties regarding terrorism
"would produce corresponding injustices which would be very hard to eradicate:"
Hansard (H.L. Debates), 6 November 1989, col. 480. I am satisfied that the Nedrick
test, which was squarely based on the decision of the House in Moloney , is pitched
at the right level of foresight.

The argument that Nedrick has limited application.

The Court of Appeal [1997] 1 Cr.App.R. 97 , 107 held that the phrase a "virtual
certainty" should be confined to cases where the evidence of intent is limited to
admitted actions of the accused and the consequences of those actions. It is not
obligatory where there is other evidence to consider. The Crown's alternative
submission on the appeal was to the same effect. This distinction would introduce
yet another complication into a branch of the criminal law where simplicity is of
supreme importance. The distinction is dependent on the vagaries of the evidence in
particular cases. Moreover, a jury may reject the other evidence to which the Court
of Appeal refers. and in preparing his summing up a judge could not ignore this
possibility. If the Court of Appeal's view is right, it might compel a judge to pose
different tests depending on what evidence the jury accepts. For my part, and with
the greatest respect, I have to say that this distinction would be likely to produce
great practical difficulties. But, most importantly, the distinction is not based on any
principled view regarding the mental element in murder. Contrary to the view of the
Court of Appeal, I would also hold that section 8(b) of the Act of 1967 does not
compel such a result.
In my view the ruling of the Court of Appeal was wrong. It may be appropriate to give
a direction in accordance with Nedrick in any case in which the defendant may not
have desired the result of his act. But I accept the trial judge is best placed to decide
what direction is required by the circumstances of the case.

The disposal of the present appeal

It follows that the judge should not have departed from the Nedrick direction. By
using the phrase "substantial risk " the judge blurred the line between intention and
recklessness, and hence between murder and manslaughter. The misdirection
15/07/2020 Delivery | Westlaw India Page 16

enlarged the scope of the mental element required for murder. It was a material
misdirection. At one stage it was argued that the earlier correct direction "cured" the
subsequent incorrect direction. A misdirection cannot by any means always be cured
by the fact that the judge at an earlier or later stage gave a correct direction. After all,
how is a jury to choose between a correct and an incorrect direction on a point of
law? If a misdirection is to be corrected, it must be done in the plainest terms:
Archbold, Criminal Pleading, Evidence & Practice, 1998 ed., p. 411, para. 4-374.
That is, however, not the end of the matter. For my part, I have given anxious
consideration to the observation of the Court of Appeal that, if the judge had used
the phrase "a virtual certainty," the verdict would have *96 been the same. In this
case there was no suggestion of any other ill treatment of the child. It would also be
putting matters too high to say that on the evidence before the jury it was an
open-and-shut case of murder rather than manslaughter. In my view the conviction
of murder is unsafe. The conviction of murder must be quashed.

The status of Nedrick

In my view Lord Lane C.J.'s judgment in Nedrick provided valuable assistance to trial
judges. The model direction is by now a tried-and-tested formula. Trial judges ought
to continue to use it. On matters of detail I have three observations, which can best
be understood if I set out again the relevant part of Lord Lane's judgment. It was:

"(A) When determining whether the defendant had the necessary intent, it
may therefore be helpful for a jury to ask themselves two questions. (1)
How probable was the consequence which resulted from the defendant's
voluntary act? (2) Did he foresee that consequence? If he did not
appreciate that death or serious harm was likely to result from his act, he
cannot have intended to bring it about. If he did, but thought that the risk
to which he was exposing the person killed was only slight, then it may
be easy for the jury to conclude that he did not intend to bring about that
result. On the other hand, if the jury are satisfied that at the material time
the defendant recognised that death or serious harm would be virtually
certain (barring some unforeseen intervention) to result from his voluntary
act, then that is a fact from which they may find it easy to infer that he
intended to kill or do serious bodily harm, even though he may not have
had any desire to achieve that result . . . (B) Where the charge is murder
and in the rare cases where the simple direction is not enough, the jury
should be directed that they are not entitled to infer 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. (C) Where a man realises that it is for all practical purposes
inevitable that his actions will result in death or serious harm, the
inference may be irresistible that he intended that result, however little he
may have desired or wished it to happen. The decision is one for the jury
to be reached upon a consideration of all the evidence." (Lettering
added.)
First, I am persuaded by the speech of my noble and learned friend, Lord Hope of
15/07/2020 Delivery | Westlaw India Page 17

Craighead, that it is unlikely, if ever, to be helpful to direct the jury in terms of the two
questions set out in (A). I agree that these questions may detract from the clarity of
the critical direction in (B). Secondly, in their writings previously cited Glanville
Williams, Professor Smith and Andrew Ashworth observed that the use of the words
"to infer" in (B) may detract from the clarity of the model direction. I agree. I would
substitute the words "to find." Thirdly, the first sentence of (C) does not form part of
the model direction. But it would always be right for the judge to say, as Lord Lane
C.J. put it, that the decision is for the jury upon a consideration of all the evidence in
the case. *97

The certified questions

Given my conclusions the certified questions fall away.

Lord Hoffmann.
My Lords, I have had the advantage of reading in draft the speeches prepared by my
noble and learned friends, Lord Steyn and Lord Hope of Craighead. I agree with
them that this appeal should be allowed, the conviction for murder quashed, the
conviction for manslaughter substituted and the matter remitted to the Court of
Appeal to pass sentence.
Lord Hope of Craighead.
My Lords, I have had the advantage of reading in draft the speech which has been
prepared by my noble and learned friend, Lord Steyn. I agree with it, and I wish to
add only these brief comments.
I attach great importance to the search for a direction which is both clear and simple.
It should be expressed in as few words as possible. That is essential if it is to be
intelligible. A jury cannot be expected to absorb and apply a direction which attempts
to deal with every situation which might conceivably arise. I think that the Nedrick
direction, which is (B) in Lord Steyn's analysis, fulfils this requirement admirably. But
the substitution of the word "find" for "infer" is an improvement, in the interests of
clarity, and I also would make this change to it. However I regard the questions in
(A), which are derived from Lord Scarman's speech in Reg. v. Hancock [1986] A.C.
455 , 473f, as detracting from the clarity of the critical direction. I would prefer to say
therefore that it is unlikely, if ever, to be helpful to tell the jury that they should ask
themselves these questions. I think that it would be better to give them the critical
direction, and then to tell them that the decision was theirs upon a consideration of
all the evidence.
As for the terrorist example, I think that Lord Mustill's observations in Attorney
General's Reference (No. 3 of 1994) [1998] A.C. 245 , 261d-f are also relevant. In
that passage he gave as an example of "indiscriminate malice," which belongs to the
category of deliberate murder where the defendant consciously intended to kill the
victim, the example of the terrorist who hides a bomb in an aircraft. As he explained,
the intention is aimed at the class of potential victims of which the actual victim forms
part, even although the identity of the ultimate victim is not yet fixed at the start when
the intent is combined with the actus reus which ultimately causes the explosion.
The answer to the question whether those who attempt to dispose of the bomb are
within that class will depend on the circumstances. All that needs to be said is that it
15/07/2020 Delivery | Westlaw India Page 18

may not be necessary in every such case to rely on the alternative verdict of
manslaughter.
Representation
Solicitors: Cousins Tyrer, Leeds; Crown Prosecution Service (London Branch 2,
Central Casework).
Appeal allowed. Conviction of murder quashed. Conviction of manslaughter
substituted. Cause remitted to Court of Appeal (Criminal Division) for sentencing. (M.
G.)

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