Doctrinal Rationality after Woollin

William Wilson*

There will be some who breathe a sigh of relief following the House of Lords’
decision in Woollin.1 At last, it seems, the meaning of intention in the criminal law
is cogent and stable and the mens rea for murder is as close as the common law is
likely to get in providing a bright line between the culpability associated with this
crime in contrast with manslaughter. The state of the law seems now largely to
coincide with the meaning optimistically attributed to it by the majority of
academic commentators and successive reform bodies.2 The fudge, initiated in
Hancock3 and which reached its apogee in Nedrick4 as to whether intention is a
state of mind which can be inferred from foresight of probability or, if not
probability, then virtual certainty, or whether foresight of virtual certainty is a form
of intention has been eradicated. The House of Lords in Woollin has firmly nailed
its colours to the mast of the latter. Everything has fallen neatly into place. Or has
it? I hope to show here that it has not – that the present meaning of intention is still
generally unstable and that the decision renders the broad doctrinal terrain of
homicide less intelligible.

The facts
W, having lost his temper with his baby son, threw him with much force across the
room causing the infant to hit his head on a hard object. The latter later died as a
consequence of his injuries. W was charged with murder. Under interrogation W
admitted he realised there was a risk of serious injury but denied any desire to kill
or hurt the child. The prosecution case, relying on Nedrick, was that the necessary
intention to kill or cause serious injury was present if, when acting, W must have
known it was virtually certain that such injury would be caused. His defence, inter
alia, was lack of intent to cause serious injury.
The trial judge directed the jury that they must be satisfied W intended the death
of or serious injury to the child. At first, he directed them, in accordance with the
model direction in Nedrick, that they could infer intention from their belief, if they
had one, that the accused foresaw either of these consequence as a virtual certainty.
However he went on to say:
If he had not given any thought to the consequences of what he was doing then the Crown
would have failed to prove the necessary intention to cause really serious harm and you
should acquit. On the other hand if you reject that interpretation and were quite satisfied that

* Law Department, Brunel University.

1 [1998] 4 All ER 103.
2 See for example A.J. Ashworth ‘Criminal Liability in a Medical Context: The Treatment of Good
Intentions’ in A.P. Simester and A.T.H. Smith (eds) Harm and Culpability (Oxford: Clarendon, 1996)
173; JC Smith ‘A Note on Intention’ [1990] Crim LR 85; J.C. Smith and Brian Hogan Criminal Law
(London: Butterworths, 1996) 58–60; Law Commission A Criminal Code for England and Wales, No
177 cl 18, (London: HMSO, 1989).
3 Hancock and Shankland [1986] 1 All ER 641.
4 [1986] 3 All ER 1.
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May 1999] Doctrinal Rationality after Woollin

he was aware of what he was doing and must have realised and appreciated when he threw
the child that there was substantial risk that he would cause serious injury to it then it would
be open to you to find that he intended to cause serious injury to the child.
The jury convicted on this basis.

Woollin in the Court of Appeal

It was argued on appeal that the judge had misdirected the jury. The approved
direction in cases where the jury needed guidance as to what intention meant was
that appearing in Nedrick. This is as follows:
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.5
The basic defence objection was that the jury might have thought that ‘[realising
that] there was a substantial risk that he would cause serious injury’ constituted the
intention demanded by the offence definition. Clearly this is not the case and has
not been so since Moloney effectively overruled Hyam.6 In this latter case, on a
charge of murder, a majority of their Lordships had decided that a person who
acted with foresight of a consequence (here death or serious injury) to a specified
(though uncertain) degree of probability intended that consequence. This ruling
both blurred the distinction between murder and manslaughter and between
intention and recklessness. Moloney, in an attempt to recover some doctrinal
clarity, stated that what a person foresees and what he intends are different states of
mind. The former could only, therefore, operate as evidence of the latter.
The Court of Appeal, in Woollin, said that the trial judge’s direction was
acceptable since it had been made clear to the jury that they were looking for
intention and that foresight of a substantial risk was only evidence from which they
might infer such intention. The view was taken that the jury would not have
misunderstood from the direction as a whole that the judge was asking them to find
intention. This finding would have been more plausible perhaps if the trial judge
had defined intention. But he did not. As a result we have no means of knowing
whether the jury convicted because they thought that foresight of substantial risk
was enough in itself, or because, on the basis of the evidence put to them, they
were convinced that it was the accused’s purpose to cause the baby serious injury,
or because they favoured some other test of intention – say an attitude of utter
indifference. It is difficult to see, then, how the Court of Appeal could have
reached the conclusion that the jury would not have mistaken what they were
supposed to be looking for. Frustratingly, as with the trial judge and following the
example set in Hancock and Nedrick, the Court of Appeal did not specify what
intention meant and how foresight of the substantial risk related to it.
Nedrick had offered the following (equivocal) insight. Foresight of a
consequence is certainly evidence that it was intended if it is foresight of virtual/
moral certainty. If F throws his son off the top floor of the Empire State Building
he can deny the intention to kill until he is blue in the face, but nobody need take

5 Cited at [1998] 4 All ER 103, 105.

6 Hyam v DPP [1974] 2 All ER 41, Moloney [1985] 1 All ER 1025.

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the claim seriously unless, perhaps, the outcome (death or serious injury) was an
outcome he was taking this action to avoid.7
Foresight of virtual certainty may perhaps, though, be more than evidence of
intention. It may be a separate form of intention.8 Lord Lane CJ was keen to hedge
his bets in Nedrick. If so, it will make no legal difference why F threw his son from
the building, although clearly it may make a moral difference. One way or another
the jury are entitled to find the intention (proven). They need not trouble to
consider why he did it. So also, a wicked surgeon who removes another’s liver for
transplant into his dying wife may not desire the former’s death either for its own
sake or as a means to achieve his end but he would intend it if he knows it is
practically certain, barring some unforeseeable intervention by another surgeon
with a spare liver.
Nedrick has been widely criticised for not making clear whether or how foresight
of probability/high probability falling short of virtual/moral certainty may be
probative of intention. It is only clear, in line with Moloney and Hancock, that such
foresight does not constitute intention. Logically, however, in many cases it will
not even be probative. If, for example, the wicked surgeon removes only a kidney
he may, if he wantonly fails to adhere to orthodox surgical procedures, foresee the
victim’s death as probable or even highly probable, but this is not evidence that he
means her to die.9 His true motive shows this beyond any question. It is evidence –
the strongest imaginable – that he does not care whether she lives or dies but not
evidence of intent unless intent carries its pre-Moloney meaning. This is the bright
line which Lord Lane CJ tried to draw between intention and recklessness. It can
only be such evidence where the facts show that there was no room for the actor to
doubt that the consequence would not occur and so there is no room also for the
jury to doubt that he did not decide to produce the consequence. As soon, in other
words, as the consequence becomes less than morally certain doubt must creep into
the jury’s collective mind as to whether it was meant.10
How, then, did the Court of Appeal justify their decision in Woollin?
Unpersuasively, it must be admitted. At least for this commentator, attempting
to divine the merit of the court’s reasoning necessitated the unusual step of long
deliberation with eyes shut in a darkened room. The best way to cast light on its
overall cogency is to apply it to some straightforward examples. Roch LJ said that
the Nedrick direction was only necessary in cases where the sole evidence of D’s
intention is evidence of D’s actions and their consequences to the victim.

Case 1
A is found dead at the foot of a block of flats. B was seen pushing him from the
window of the fifth floor. B offers no evidence as to why he did it or his state
of mind at the time of doing so.

7 As where the building is on fire and A throws the deceased from the building in a vain attempt to save
life. See Law Commission, Legislating the Criminal Code: Offences Against the Person and General
Principles No 218 (London: HMSO 1993). For further discussion see below.
8 By analogy, though we appreciate that courgettes belong to the family of fruits they are nevertheless
designated, for gastronomic purposes, as a form of vegetable.
9 Neither, of course, will it constitute the form of intention conveyed by foresight of moral certainty. It
might conceivably corroborate an independent malicious motive for killing the ‘donor’.
10 For an extended discussion of this point see W. Wilson Criminal Law: Doctrine and Theory (London:
Longman, 1998) 126–8.

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This is a case where the judge, in accordance with Nedrick, would tell the jury that
in the absence of a motive, or other evidence of what B had in mind it was open to
them to infer that B intended to kill A only if they were sure that such a
consequence was virtually certain and that B knew this.
Roch LJ said that if there is other evidence then the jury may be invited to
consider all the evidence and from that evidence draw an inference of intent, in
accordance with section 8 Criminal Justice Act 1967.11 This would be so even
though the consequence was not virtually certain and was not foreseen as such.

Case 2
As in Case 1 except that A was dropped from the first floor and B had been
heard earlier to threaten to kill A. B had admitted that he knew there was a
substantial risk that A might suffer serious injury but denied intending to kill or
cause serious injury.

This is a case where the judge should tell the jury that they must determine intention
by reference to all the evidence, including presumably (a) the earlier threat, (b) the
admitted foresight, (c) the objective dangerousness of B’s conduct as indicated by the
height from which A was dropped. This would seem to be a permissible departure
from the spirit of Nedrick since there is evidence that B wanted to kill A. Given that
there was a substantial risk that death or serious injury would occur and he was alert
to this fact his conduct corroborates that evidence. It goes without saying that his
admission that he foresaw the consequence as probable would not be probative of the
fact that he foresaw it as morally certain unless, objectively, it was.

Case 3
As in Case 2 except that there is no evidence of B’s state of mind other than his
admission that he foresaw the substantial risk.

Case 4
As in Case 3 except that B gives, as his explanation, the fact that he wanted to
teach A a lesson by frightening him.

In Cases 3 and 4, since the evidence relied upon by the prosecution is not limited to
B’s actions and their consequences to the victim, the judge may direct the jury to
determine B’s intent by reference to all the evidence, which will include the fact
that he foresaw the consequence as a substantial risk in Case 3 and also wanted to
teach A a lesson in Case 4.
As explained above the major problem posed by the direction of the trial judge in
Woollin is that the jury were not told what they were supposed to be looking for
when determining B’s intent. They were not told what this intention is whose
existence may be inferred from B’s foresight.12 Is it aim or purpose? The jury were
told that they were not looking for this type of intention in Woollin. In theory,
however, what a person foresees is not necessarily even probative of what he
11 Which provides that what an actor intends or foresees must be determined by the jury on a
consideration of all the evidence.
12 The strong possibility is that they will infer nothing at all, but treat such foresight as constitutive of the
fault element of the offence. See Sir John Smith’s commentary on Woollin at [1997] Crim LR 519, 520–1.

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means to achieve. Direct intention and foresight are different states of mind, in the
same way that love is different from acquisitiveness. Proving that a person foresees
a consequence as probable/highly probable is no more conclusive of an intention to
produce that consequence than counting an art dealer’s acquisitions can establish
his love of art. However much the dealer acquires the possibility is that he hates
art, but loves accumulating wealth. Similarly, direct intention cannot conclusively
be inferred from mere foresight of probability. It may help us make a pretty good
guess but guesswork is not the stuff of criminal convictions. Suggesting otherwise
fatally conflates intention and recklessness. This can be seen at its most obvious in
Case 4. Why should the jury prefer to believe that B intended to kill rather than to
frighten given that the evidence equally supports both possibilities? The standard
of proof, it must be remembered, is beyond reasonable doubt.13
If we include foresight of moral certainty as a separate form of intention it might
be argued, however, that where an undesired consequence is, objectively, morally
certain then an admission that the consequence was foreseen to a lesser degree of
certainty is probative of intention as thus defined. In Case 4, assuming the victim
was pushed from the tenth floor, the jury may reasonably conclude, that (a), since
death under these circumstances was morally certain, and (b), since there is clear
evidence that B was acting as a fully sentient moral agent – he had made a risk
evaluation – then (c), B, who was not stupid, also must have known what
everybody else would have known. Death was not merely a probability; it was a
certainty. This is possibly what Roch LJ had in mind in seeking to draw a
distinction between cases where probability of the occurrence was the only
evidence the jury have to go on in deciding the accused’s (direct) intent and cases
where the accused appears to be denying the obvious, namely that the risk which
he says he only foresaw as substantial, was a risk which the rest of the world would
foresee as overwhelming.
In Woollin D had also admitted that he realised serious injury might thereby be
caused and thus left it open to the jury to conclude not merely that he foresaw the
consequence as probable but that he foresaw it as certain. As explained above, this
might be a reasonable inference where the consequence was to all intents and
purposes inevitable and must have been recognised as such. But here we do not have
a person who pushes his baby out of a window but one who throws her across the
room in a momentary loss of control. How could the jury conclude, beyond
reasonable doubt, either the objective certainty of the consequence or, indeed, that D
must have appreciated it? If they were in doubt they must give the benefit of that
doubt to the accused. It should be noted keenly that the prosecution had seen fit not to
contend at trial that the appellant had desired to kill his son or cause him serious
injury. Given this signal fact what were the jury thinking of in finding intention
proven? It seems only too obvious that they felt able, given the looseness of the
direction, to reach a conclusion that D deserved to be convicted of murder without
stretching themselves to find either direct intention or foresight of moral certainty.14

The certified questions

The Court of Appeal certified the following questions for their Lordships’
consideration:

13 cf A.P. Simester and W. Chan ‘Intention Thus Far’ [1997] Crim LR 704.
14 See A. Norrie ‘Oblique Intention and Legal Politics’ [1989] Crim LR 793 800–7.

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In murder, where there is no direct evidence that the purpose of the defendant was to kill or
inflict serious harm on the victim, is it necessary to direct a jury that they may only infer an
intent to do serious injury if they are satisfied (1) that serious bodily harm was a virtually
certain consequence of the defendant’s voluntary act and (2) the defendant appreciated that
fact? If the answer to the first question 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?

Tidying up: the House of Lords’ response

The House of Lords, in declining to answer the certified questions, showed
themselves alert to most of these problems. They disapproved of the distinction
drawn by the Court of Appeal between those cases where the Nedrick direction was
appropriate and those where it was not. Lord Steyn said that this would make the
law both complicated and unprincipled. In so doing their Lordships rejected the
Crown’s argument that the Nedrick direction was bad because, in removing fore-
sight of mere probability from the scope of probative evidence, it was inconsistent
with section 8 of the Criminal Justice Act 1967.15 Lord Steyn’s reasoning was that
Nedrick lays down a rule of law – intention can take the form of acting in the
knowledge that a consequence is certain – not a rule of evidence – (direct) intention
cannot be established by adducing evidence that the actor foresaw the result to a
lesser degree of probability than virtual certainty.16 As explained above, in most
cases foresight of probability will not be probative of direct intention and this is
why a judge should not direct them to this effect. If he/she does so it will certainly
confuse them. It may plausibly be probative of foresight of virtual certainty where
the consequence is, in fact, objectively certain if things go according to plan. In
such circumstances the jury may reasonably conclude ‘Well if you foresaw it as
likely you must have also foreseen it as certain because it was certain’.17
They also, less convincingly, rejected the argument that it was inconsistent with
Hancock. Lord Scarman had said in Hancock that the more probable the
consequence the more likely it was foreseen and, if foreseen, the greater the
probability that it was intended.18 This can only mean, it is suggested, that what A
wants to happen (direct intention) may be inferred from what he does and as the
probability of that consequence occurring as a result of his conduct increases so
also diminishes the jury’s room for doubting whether A does in fact want it to
happen. A juror who has no other evidence of what A wanted to do other than that
he dropped B out of a high window will no doubt wish and, by dint of this remark,
be emboldened to infer that A wanted to achieve that which his conduct made
highly probable.
Lord Steyn, giving the leading opinion, by no means did justice to Lord
Scarman’s remark. He might reasonably have conceded that such foresight is
probative of direct intention19 where, but only where, D has no plausible

15 In cases where there was other evidence of A’s state of mind and see footnote 11.
16 This is not what Lord Steyn said, but it is the interpretation which makes best sense of what he said.
17 cf Smith and Hogan n 2 above, at 58 who insist that this form of intention requires only that D foresees
the consequence as certain; it should not be necessary also that the consequence is, objectively, certain.
The example they give to support their conclusion (a shooting) is one where the special direction would
not be appropriate.
18 at 651.
19 Foresight, not foreseeability, is the point here as Woollin admitted he had foresight. Typically however
a defendant will make no such admission, which is where Lord Scarman’s guidelines would kick in.
See previous paragraph.

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explanation for his behaviour other than that he desired the proscribed
consequence. In such cases it seems unobjectionable, if perhaps unwise, for
judges to point out something which common sense will compel them to do
anyway, namely to decide what a person wanted to achieve by reference to what he
thought would probably happen.20
Significantly, in such cases Roch LJ had said that the Nedrick direction is
applicable. This view is particularly hard to comprehend. The special direction
should only be necessary where the jury might lose sight of what mental attitude
they were looking for. If the defendant offers no competing view of his conduct
why should one be necessary? Beyond this Lord Steyn might also have conceded
that foresight of less than certainty is probative of oblique intention (foresight of
certainty) but only if the consequence is objectively certain, barring some
unforeseen intervention.
The House concluded that the judge should not have departed from the Nedrick
model direction which was ‘a tried and tested formula’21 designed to draw a
distinct line between intention and recklessness and between murder and
manslaughter. Lord Steyn located the main source of the confusion in Nedrick as
Lord Lane CJ’s attempt to do justice to Lord Scarman’s ‘taking inferences from
probability’ statement in Hancock. This perpetuated the confusion as to whether
knowledge of virtual certainty was a form of intention or was (possibly) irresistible
evidence of (direct) intention22 and also left it unclear whether, if the latter,
foresight of a lesser degree of probability was still probative. This part of the
Nedrick guidelines should not now be put to the jury as it is confusing. Although it
may sometimes be necessary for juries to be given guidance on how foresight of
probability may relate to proof of intention, this should be exceptional. When it is
given it should be in the form of the clear statement of Lord Lane CJ in the model
direction with one qualification, namely substituting for ‘infer’ the word ‘find’. It
should conclude with the rider that ‘the decision is one for the jury to be reached
upon a consideration of all the evidence.’
The special direction, with modifications emphasised, would, then, read:
Where the charge is murder and in the rare cases where the simple direction is not enough,
the jury should be told 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. The decision is one for the jury to be reached upon a consideration of all
the evidence.

Interpreting Woollin
There are two ways of reading this adoption and modification of the Nedrick
direction. The first is that the House of Lords thought they were implementing the
standard test of intention which holds that consequences of action are intended if
they are either (a) desired or (b) foreseen as a virtual certainty. The second is that
the House of Lords consciously declined to implement the standard test,
presumably in order to perpetuate existing (desirable) doctrinal ambiguity.
Reading Woollin as a whole the most cogent interpretation is the former and is

20 And so decided the Court of Appeal in Walker and Hayles (1990) 90 Cr App R 226.
21 [1998] 4 All ER 103, 113, per Lord Steyn.
22 Or possibly some other notion of intention. We have no means of knowing as intention was not
defined.

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the one taken here. The clearest expression of the standard definition is in the form
proposed by the Law Commission and is intended largely as a restatement of the
existing law. It states that a person acts ‘intentionally’ with respect to a result when
(i) it is his purpose to cause it; or (ii) although it is not his purpose to cause that
result, he knows that it would occur in the ordinary course of events if he were to
succeed in his purpose of causing some other result.
The definition renders it clear that a person intends, for example, to kill both
when he wants to kill and also when he recognises that death is a morally certain
side effect of what he does want to achieve if things go according to plan.23
Foresight of virtual certainty is a form of intention not simply a means of proving
intention. It designates the wicked surgeon’s conduct as intentional with respect to
the death of his patient if he removes her liver but not if he removes her kidney.
This interpretation, though the most cogent, may yet be surprising since the
direction is couched in the conditional negative; it does not say ‘you must find
intention if the defendant foresaw the consequence as certain;’ rather it says ‘do not
find intention unless the defendant (desired the consequence or) foresaw the
consequence as certain’. It may thus be understood to imply that while foresight of
certainty is a precondition of this form of intention it is not reducible to it. The
major ground for rejecting this implication is the use Lord Steyn makes of the
complaint of Ashworth, J.C. Smith and Glanville Williams that the use of the word
‘infer’ detracts from the clarity of the model direction. This leads him to conclude
that ‘find’ is the mot juste. Each of these commentators gave as their reason for
rejecting ‘infer’ on grounds of ‘clarity’ the fact that the only (intending) state of
mind which could meaningfully be inferred from foresight was direct intention. As
direct intention was something other than the state of mind under consideration the
latter must be an alternative form of intention, rather than a means of proving
intention.24 This reasoning has been accepted subsequently by the articulator of the
Nedrick direction, namely Lord Lane CJ, who has conceded in the course of debate
that what he would have liked to say is that a person brings about a consequence
intentionally not only when he acts in order to bring it about but also when he
foresees it (as virtually certain). Common sense would also suggest that in
preferring ‘find’ to ‘infer’ Lord Steyn was conceding the general conceptual point
underpinning this objection rather than simply articulating a more incisive form of
words. At other parts of his judgment this impression is confirmed. Earlier he said
‘[t]he effect of the critical direction [ie the one he later adopts] is that a result
foreseen as virtually certain is an intended result’.25 At another he states ‘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 bodily harm) is
sufficient for murder’.26 The obvious conclusion to be drawn is that Lord Steyn
presumed that the Nedrick model direction gave as the (second) state of mind

23 This definition satisfies the objection lodged above at footnote 21.

24 By analogy, an untutored view of the cosmos holds that there are two basic forms taken by celestial
bodies – those which are visible and those which are not. We find the former by means of a telescope
which registers light waves. We find the latter by means of a telescope which registers radio or other
waves. In both cases we use the telescope to find the body. We do not say, in the case of invisible
bodies, that the radio signal allows us only to infer the existence of the body. We would use the
language of inference only when it was neither visible nor otherwise directly detectable as when the
existence of ‘dark matter’ (which sends out no calling card) is inferred by reason of the failure of the
universe to collapse in on itself.
25 [1998] 4 All ER 103, 110.
26 ibid at 111.

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sufficient for murder the appreciation that death or serious injury was a virtual
certainty (barring some unforeseen intervention) and his intention was to underline
this by replacing ‘infer’ with ‘find’.
The best argument for the second reading is that the direction means just what it
says. Juries are entitled to find intention where there is foresight of virtual
certainty, which is not the same as being bound to. Before discussing why the
House of Lords might have desired to leave intention ‘up in the air’ in this way is
there any evidence that they might have had this explicitly in mind? There are two
possible signals. The first is that Lord Steyn rejected the opportunity of adding the
following sentence to the model direction which Lord Lane had fashioned in
Nedrick as an aid to the jury:
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 second is that he did add, with Lord Hope’s approval, the subsequent sentence
namely that ‘the decision is one for the jury to be reached upon a consideration of
the evidence’. It is just plausible that the first sentence was rejected because it
provided an unwelcome restriction on the scope available to the jury to resist
finding that the consequence was intended. This hypothesis is in no way weakened
by their Lordships’ approval of the second sentence which also did not form part of
the original model direction. Indeed it is strengthened by it. Read as a whole the
direction may be seen as incorporating an explicit ‘get out clause’ for juries who
believe the accused to have foreseen the prohibited consequence as a virtual
certainty but nevertheless still feel able to conclude – by dint of a ‘contextualised’
usage of the word intention – that the consequence was not intended. The last
sentence might be understood as the judicial wink and the nudge which, in
appropriate circumstances, might embolden the jury to deploy common sense
before linguistic rectitude.

Doctrinal ramifications
Whichever reading we prefer it is apparent that their Lordships, following the
example set in Moloney, Hancock and Shankland, and Nedrick eschewed once
more the opportunity to present a clear and cogent definition of intention. As a
consequence whatever the House of Lords had in mind in approving the tidied-up
direction the lack of such an unequivocal definition threatens to dog rational
doctrinal development. The position now reached is that we are reminded
forcefully what intention is not, namely the state of mind of someone who foresees
a consequence to a lesser degree of probability than that of virtual certainty. We
know, moreover, that a judge must not direct the jury that they may infer intention
from foresight of probability for fear of misleading them. Intention is thus
distinguished conceptually from recklessness in a way which previously it was not.
This, in itself, is very much to be welcomed. The Nedrick guidelines were easily
deployed, consciously or unconsciously, to create the impression that extreme
cases of risk-taking constituted, in the context of murder at least, its fault element.
If, say, intention polices the boundary between murder and manslaughter it is of
key concern to ensure that this boundary is at least conceptually distinct. This is
achieved where intention’s meaning is limited to consequences desired or foreseen
as morally certain and where there is no room for a judge to present the jury with a
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form of words which allows them to apply common sense or broader penal goals
before doctrine.27
Beyond this negative definition, we can also be quite confident, on the basis of
existing authority,28 that an actor intends (to act or) bring about a consequence if he
acts in order to bring it about either for its own sake or to achieve some other
purpose. In these latter cases, it must be understood moreover that the jury does not
need to be convinced that the accused knew for certain that he would succeed in his
purpose. It is enough that they are sure he wanted to and acted in this way because
of it. That what he did was consistent with this desire is the only possible probative
value of adducing degrees of probability.
The House of Lords’ limited tidying up operation stores up two obvious
problems of application. The first involves two special cases of good motives ((a)
and (b) below) and is directly attributable to the failure to implement explicitly the
standard definition. The second, of particular significance in murder, involves
cases of wicked recklessness ((c) below) and is directly attributable to the clear
statement that juries should not be directed on the probative value of degrees of
foresight less than that of virtual certainty. The problem cases are as follows:
(a) The defendant’s motive is morally inconsistent with the criminal intention
required by the crime definition. An example is Adams.29 Does a doctor’s quite
lawful intention (pain relief for a dying cancer victim) transmute into an
unlawful intention (to kill the patient) by crossing a threshold of probability
(eg from highly probable to certain)? Another example is Gillick.30 Here the
doctor prescribed contraceptives to an under-age patient for the purpose of
preventing a disastrous pregnancy. If he knows this will facilitate the
commission of (unlawful) sexual intercourse with the patient does his lawful
intention transmute into an intention to aid and abet the offence?
(b) The defendant’s motive is conceptually inconsistent with the criminal intention
required by the crime definition. An example is given by the Law
Commission: F throws S off the top of a blazing block of flats in a vain
attempt to save S’s life. If a person acts in order to avoid the consequence does
he nevertheless intend that consequence if he foresees its occurrence as
inevitable.
(c) The evidence shows that the defendant knew the consequence, say death, was
likely to occur by reason of his action and might, therefore, have desired it. But
he has a plausible alternative reason for his action which, if true, would negate
such desire but not the contempt for the value of life which the murder
conviction condemns.31 An example is Hyam. The defendant anxious to drive
her rival out of the neighbourhood and her lover’s life had put a lighted
newspaper through her letter box. Two children of the household died in the
resulting blaze. Mrs Hyam’s conduct was consistent both with intending to kill
the occupants and also with intending to frighten the rival into leaving her
husband.

27 See A. Norrie ‘Oblique Intention and Legal Politics’ [1989] Crim LR 793 at 800–7; R.A. Duff ‘The
Politics of Intention: a Response to Norrie’ [1990] Crim LR 637.
28 See Mohan [1976] QB 1.
29 [1957] Crim LR 365.
30 Gillick v West Norfolk and Wisbech AHA [1986] AC 112.
31 This mental attitude is described in other jurisdictions as wicked recklessness or depraved heart.

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Good motives
One notable effect of the Nedrick/Hancock ambiguity is that it lent judges explicit
power, in cases involving a justifying motive such as Adams and Gillick, to let the
jury reach their own common-sensically humane decision. Effectively, then, case
law was riven by two complementary, if inconsistent, methods of constructing the
fault element designated by the word intention. In cases involving dangerous
activity disclosing no social value the fault element was routinely expressed to
include acting for the sake of a consequence and acting in the knowledge that a
consequence was virtually certain. In cases involving a justifying motive trial
judges had discretion to stress that foresight even of virtual certainty was only
evidence of intention and that the jury should make their determination on a
consideration of all the evidence. They could go further and give a direction which
excludes the standard test of intention.32 Woollin, with its preference for the word
‘find’ rather than ‘infer’ appears to have been intended to remove the possibility of
doing this. Judges, we are told, must give the unadulterated (modified) model
direction in any case where the basic direction is eschewed.
On further consideration the present position is not quite so straightforward,
however. Woollin contains no explicit suggestion that either Adams or Gillick has
been disapproved. Moreover, Lord Steyn made a studied effort to ensure that trial
judges understand that the Nedrick direction is not automatically to be given,
perhaps even in cases lying outside intention’s focal cases:
It may [my emphasis] be appropriate to give a direction in accordance with R v Nedrick in
any case in which the defendant may not have desired the result of his act. But I accept that
the trial judge is best placed to decide what direction is required by the circumstances of the
case.33
The permissive rather than imperative emphasis in this statement may well mean
that in cases where the accused’s motive contradicts definitional intention or is
morally inconsistent with it the judge will feel encouraged tactfully not to put such
directions to the jury and trust in their common sense. The bolder alternative is to
continue with the Adams/Gillick approach. In medical cases in particular, given
that we know doctors in such cases are acting lawfully it is unlikely that a trial
judge, with his back to the wall, will scruple to determine why, as a matter of
doctrinal necessity, this is so.34 And in cases of conceptually inconsistent intentions
it would clearly not make doctrinal, semantic, or moral sense to find a criminal
intention. In the example above, if F’s intention is to save S’s life, he cannot as a
matter of definition intend to kill S, whatever intention might mean.35 The two
intentions are incapable of inhabiting the same mind at the same time. Everyday
usage understands this very well.
Even if the judge chooses to give the modified Nedrick direction, moreover, it
should be remembered that this does not foreclose the possibility of a linguistically
sophisticated jury saying to themselves ‘OK, we are entitled to find intention here
but we prefer not to. People intend what they set out to achieve. They do not intend
the undesired side effects of what they are in business to achieve, particularly
32 See, for example, Lord Scarman in Gillick: ‘The bona fide exercise by a doctor of his clinical judgment
must be a complete negation of the guilty mind which is an essential ingredient of the criminal
offence’, at 190. Also Steane [1947] KB 997.
33 [1998] 4 All ER 103, 112.
34 Of course problems will still arise in cases outside the medical arena.
35 The Law Commission’s definition of intention expressly covers the case of contradictory intentions and
would render F’s conduct non-intentional as to the death of S.

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where these are inconsistent with the point of the defendant’s action’. Neither,
more importantly, does it foreclose the possibility of a similar jury embarrassing
the trial judge by asking for a further direction on this very point. How should a
judge respond to such an inquiry? The real weakness of Woollin lies in its
resounding silence on this issue. There are two obvious options available to the
judge.
The first is to bat the question of meaning back to the jury by telling them that
intention is a word with an everyday usage and it is that usage which they must
deploy. It goes without saying that in these grey areas where everyday usage lacks
clarity and focus such a response would be a dereliction of duty. It would similarly
be a dereliction of duty to avoid giving a special direction in the first place which
has always been an option for a trial judge.
The second is for the judge to grasp the juridical nettle and tell the jury that if
they find that the accused foresaw the consequence as certain then they must also
find that he intended it. But this (most obvious) option carries a nasty sting in the
tail. The standard definition converts a person’s lawful intention into an unlawful
intention not by reference to any mischievous disposition or choice but simply by
reference to the state of his knowledge. Knowledge as a fault element, unlike
recklessness, does not filter out liability for actions prompted by good motive.36
Risk-taking, on the other hand, is only culpable and so punishable if unjustified.
The House of Lords gives trial judges no guidance as to how to plug this
culpability gap and, indeed, by Woollin, might be thought to have exacerbated the
problem. For example, A is driving quite lawfully on a narrow mountain cliff road
and encounters, on turning a corner, a bunch of hikers stretched out across the
road.37 If, instead of plunging in heroic self-sacrifice off the cliff, he ploughs
through the middle of them he does not act recklessly for, say, the crime of reckless
driving if this was his only way of staying alive.38 His risk-taking is justified. The
criminal law imposes no duty of self-sacrifice in the interests of others. If, on the
other hand, a hiker died and A is charged with murder the mental element is
satisfied under the standard definition. A’s liability would, then, depend upon his
being able to raise a justificatory defence. As the law now stands, however, there is
no such defence39 and a trial judge is in no position to invent one.
This problem is seen at its most intractable in the field of accessories.40 A
gunsmith who supplies a gun, under licence, to a customer is acting lawfully. If,
however, he knows that the customer intends to use it to commit a criminal offence
he is deemed, under the standard meaning, to intend to assist the commission of the
offence. A lawful intention – to ply one’s trade – becomes unlawful not by
reference to the gunsmith’s reasons for acting but by reference to his knowledge –
knowledge it should be noted that he has no duty to do anything with. He need not
inform the police of the customer’s plans. He may sell him a holster, or a ten gallon
hat. His autonomy is respected this far. But no further. He may not sell him the
gun. In standard cases such as this we may not scruple to sympathise too much. He
is acting anti-socially after all. But doctrine must fit the non-standard case as well
and when it does, as where, say, M gives her head-strong under-age daughter,

36 See generally A.P. Simester ‘Why Distinguish Intention from Foresight?’ in Simester and Smith (eds) n
2 above.
37 For discussion of this hypothetical see W. Wilson ‘A Plea for Rationality in the Crime of Murder’
[1990] 10 LS 307; G. Williams ‘Rationality in Murder: A Reply’ (1991) 11 LS 204.
38 The modern version of this offence is dangerous driving. The point at issue is not affected.
39 Duress of circumstances which most nearly covers the case is not available to murder.
40 See most recently JF Alford Transport [1997] 2 Cr App R 326.

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contraceptives in a desperate attempt to prevent an unwanted pregnancy, doctrine

is placed under strain.41 Something has to give – doctrinal integrity or criminal
justice.42 Implementing the standard definition leaves the absence of any generally
applicable justificatory defence, such as might exculpate M – a serious lacuna.
Judges could get by without it so long as they had, in the definition of intention, a
flexible friend which, in appropriate circumstances could allow good intentions to
take doctrinal precedence over knowledge.
The broad message conveyed here is that Woollin leaves the problem posed by
defendants with justificatory motives unsolved, whether we interpret it as
instantiating the standard definition or simply as removing an undesirable source
of uncertainty. In the former case unless trial judges avoid giving the special
direction in morally troublesome cases43 or confine the standard meaning to
Woollin’s own fact configuration,44 we are in urgent need of doctrinal growth in
the field of justificatory defences stretching far beyond its present medical
confines.45 In the latter case the uncertainty remains in cases of good intentions
even if it seems to have been removed elsewhere. Woollin is by no means the end
of the story.

Risk-taking
In Woollin the Crown did not argue that, as a matter of policy, foresight of virtual
certainty is too narrow a test in murder. This is perhaps surprising given the social
opprobrium attached to killings in the course of creating terror but where there is
insufficient evidence of direct intention. By increasing doctrinal certainty we do
not, then, necessarily also increase doctrinal rationality.46 Previously, by inviting
juries to make inferences about intention from foresight judges were able, under
cover of the Nedrick fudge, to enable juries to convict of murder those particularly
wicked killers such as terrorists who, while not acting with the intention, direct or
oblique, of killing, would not necessarily consider their mission a failure if a death
did occur. In short, it brought the Hyam test back into the law of murder, but took it
out of the substantive law and hid it in the jury room discussion.47 This no longer
seems possible, although it is just possible that Woollin is just another step in a
masterful juridical ‘dialectic’.48 After all, as explained earlier, Woollin, unlike
Hyam, was a classic case of ‘act first think afterwards’. While judges have no
business skewing doctrine to convict such killers of murder the same cannot
necessarily be said for the likes of Mrs Hyam.

41 Duress of circumstances would not be available here as pregnancy is hardly a life threatening
condition; cf though Bourne [1939] 1 KB 687.
42 As it did in Gillick [1986] AC 112, Fretwell (1862) Le & Ca 161, Salford Health Authority, ex p
Janaway [1988] 2 WLR 442; Clark (1984) 80 Cr App Rep 344; for a discussion of the issues see I.
Dennis ‘The Mental Element for Accessories’ in P.F. Smith (ed) Criminal Law: Essays in Honour of
JC Smith (London: Butterworths, 1987); G.R. Sullivan ‘Intent Purpose and Complicity’ [1988] Crim
LR 641 and Ian Dennis’ reply thereto at 651–3.
43 See discussion at n 20 above.
44 ie cases where the accused does not seek to rely on his good intention.
45 See A.J. Ashworth ‘Criminal Liability in a Medical Context: The Treatment of Good Intentions’ n 2
above; W. Wilson n 10 above, 282–299; R.F. Schopp Justification Defences and Just Convictions
(Cambridge: Cambridge University Press, 1998) ch 2.
46 For discussion of this scant considered distinction between rationality and doctrinal certainty see J.
Gardner ‘Rationality and the Rule of Law in Offences Against the Person’ [1994] 14 OJLS 335.
47 cf Walker and Hayles (1990) 90 Cr App R 26; and See A. Norrie n 14 above generally.
48 See N. Lacey ‘A Clear Concept of Intention’: Elusive or Illusory’ (1993) 56 MLR 621–3.

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Lord Steyn was sanguine about this consequence, perhaps unsurprisingly in view
of the receding risk of terrorism.49 It seems, then, that in cases such as Hyam a
judge will fall into error if he gives a direction other than a Nedrick direction even,
one assumes, if he makes clear that foresight of less than virtual certainty is only
one piece of evidence which they must weigh in the scales with the others. Perhaps,
however, he reasoned, as Lord Hope also appeared to, that judges were not bound
to give the special direction in cases of murderous risk-taking. In such cases, it may
be supposed, juries will continue to draw inferences of direct intention from
degrees of probability and so moral judgments will still play a part in juries’
determinations of definitional fault. In short, Hyam will remain part of the law of
murder as it is practised50 if not as it is in theory.51 An important ramification of
this will be considered in the concluding section.

Conclusion
Woollin is not, then, the end of the story. The previous doctrinal ambiguity was
made necessary by two separate systemic features. First, sustained judicial
reluctance to articulate a workable generalised justificatory defence which would
exculpate those whose conduct is morally inconsistent with the criminal intention
required by the offence definition. Second, the structure of homicide which, in
theory, withholds the label of murderer from those such as terrorists who without
aiming to kill still, through the wicked indifference they display, appear to act in
violation of the moral injunction ‘do not kill’. Since the majority of statements
concerning the legal meaning of intention have occurred in the specific context of
murder cases, its general meaning has been consistently slewed to support the
policy goal that all such ‘wicked’ killers be labelled as murderers regardless of
their actual state of mind. The significance of Woollin is that it makes these
features of greater practical concern than hitherto. With regard to the first feature
Woollin may well act as a stimulus for the development of a broadly applicable
justificatory defence of good motive if judges, as is quite conceivable, interpret
Woollin as having incorporated the standard definition of intention in English
criminal law. Or, the courts will be forced to further refine the meaning of intention
so as to exclude from the scope of criminal intentions those who, with full
knowledge but without purpose, bring about an undesired side effect of action
taken in support of a legal right or duty. This latter option is likely to have no lesser
impact than the former.52 But without such developments doctrinal rationality will
once again be the loser and the juridical ‘dialectic’ will continue.53
With regard to the second feature, doctrinal rationality has already been
compromised, if by rationality we mean the process by which the scope of our
social obligations are successfully instantiated and articulated in rules. The present
crime of murder is both under and over-inclusive. It is over-inclusive by
condemning some we might prefer to stigmatise as manslaughterers or not
stigmatise at all. It is under-inclusive by finding no place for the terrorist or Mrs
Hyam. It is glib to suppose that, as Lord Steyn put it: ‘Such cases ought to cause no

49 [1998] 4 All ER 103, 112. Lord Hope was less so, at 114.
50 See N. Lacey ‘Philosophy, History and Criminal Law Theory’ (1998) 1 Buffalo Criminal Law Review
295, generally.
51 A.P.Simester and W. Chan ‘Intention Thus Far’ [1997] Crim LR 704, and see n 27 above.
52 For example, it would change the fault element in accessoryship from knowledge to purpose.
53 See n 48 above.

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substantial difficulty since immediately below murder there is available a verdict

of manslaughter which may attract in the discretion of the court a life sentence’.54
Conviction labels are as important as justice in the distribution of punishment.
They identify a precise social obligation dishonoured in the infraction.55 This is, of
course, why we also have various crimes of reckless endangerment56 to deal with
death caused in the course of acting dangerously rather than just manslaughter, as
well as crimes of ulterior intent.57
Perhaps – is this just the optimism of the rationalist asserting itself? – Lord Steyn
has it in mind that the fault element in murder will later be returned to something
akin to its pre-1957 position. After all, the House of Lords has shown itself
increasingly uncomfortable with implied malice58 and is wont to give hints on
occasions that, when push comes to shove, it will be abandoned.59 Here Lord Steyn
could not resist saying (murder) ‘is a species of constructive crime . . . 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 assumption upon which any analysis must proceed’.60 If it is
abandoned, and the reference to the ‘House of Lords’ suggests it may be on the
agenda, the obvious replacement is a return to the pre-1957 notion of implied
malice. This included (i) an intention to inflict injury so serious as to put the
victim’s life in peril and (ii) an intention to do an act intrinsically likely to kill but
without an intention to cause any physical injury.61 Such a return would greatly
reduce the tendency – to ensure that terrorists and other wicked risk-takers get their
just deserts – for judges to play around with the meaning of intention, with
beneficial consequences for doctrinal stability and rationality generally.62
Unhappily, the only other indication Lord Steyn gave that he was alert to the
wider consequences of the decision also indicated he was reconciled to them. In a
statement which will send a shiver down the backs of those who esteem general
doctrinal consistency and stability as much definitional clarity Lord Steyn said:
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.63
It may seem then that optimism is somewhat misplaced. The House of Lords in
Woollin gave no hint that it was committed to restructuring the rules governing
criminal liability so as to ensure that those undeserving of the stigma of conviction
54 [1998] 4 All ER 103, 112.
55 In murder that obligation is articulated in the biblical injunction ‘Thou shalt not kill’ rather than Lord
Atkin’s watered down version ‘Take care not to injure your neighbour’.
56 For example causing death by dangerous driving and arson with intent to endanger life.
57 For a persuasive argument to this effect see J. Horder ‘Crimes of Ulterior Intent’ in A. Simester and
A.T.H. Smith (eds) n 2 above.
58 That is, the intention to cause really serious injury. Their discomfort is due to the fact that having the
intention to cause serious injury does not necessarily express contempt for the value of life. It does so
only if the intention is to cause life endangering, and not merely serious, injury.
59 See for example Lord Goff ‘The Mental Element in Murder’ [1988] 104 LQR 40 at 47. Lord Mustill in
A–G’s Reference (no 3 of 1994) [1997] 3 All ER 936, at 945; Lord Steyn in R v Powell [1997] 4 All
ER 545, 551–2 as well as in the instant case.
60 [1998] 4 All ER 103, 107.
61 See Kenny Outlines of the Criminal Law (Cambridge: Cambridge University Press, 1962) 153–7;
Russell On Crime (London: Stevens, 1965) ch 29.
62 Wilson n 10 above, 368–374.
63 [1998] 4 All ER 103, 107–108. For support for a differentiated meaning in cases such as complicity,
attempt, and crimes of ulterior intent see G. Williams ‘Oblique Intention’ [1987] C LJ 417, at 435 et
seq. R.A. Duff ‘Intentions Legal and Philosophical’ (1989) 9 OJLS 76.

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avoid liability through the demands of a system constituted by mutually supportive

and internally consistent rules. That is, more simply, that they do so as a result of a
legal rather than a political determination. And in the particular case of homicide, it
manifested no deeper commitment than to draw a distinct line between murder and
manslaughter. The terrain of criminal homicide is beset with greater problems than
this. Perhaps such caution was inevitable. Sketching out the framework for a
cogent and workable justificatory defence such as might rationally temper the
implementation of a universally applicable standard meaning of intention would,
on the facts of Woollin and in the light of the specified question, be very obiter
indeed. It would take a Gillick or an Adams to justify the wielding of such a broad
brush. Similarly, if the House of Lords is interested in returning the fault element
in murder to its earlier state, a precondition for its intervention will surely be a case
involving a clear-sighted decision to subject another, by violence or otherwise, to
the serious risk of death. However, as doctrinal ambiguity decreases so mounts the
tension between different parts of the structure of criminal liability and so also
increases the pressure for such a development. In this light, the decision in Woollin
is one small, if equivocal, step in the right direction.

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