R v Moloney

For murder, the prosecution must prove a subjective intention to kill or cause really serious bodily injury. Foresight of death or serious injury, however probable, is evidence from which intention may be inferred. It is not an equivalent or alternative mental element.

Ordinarily, a jury should decide intention according to its ordinary meaning without further definition. If explanation is strictly necessary, the jury should consider whether the prohibited consequence was a natural consequence of the defendant’s voluntary act and whether the defendant foresaw it as such. An affirmative answer permits, but does not compel, an inference of intention. Recklessness alone does not establish murder.

During a drunken contest with his stepfather, the appellant loaded a shotgun and pulled its trigger. The shot killed his stepfather. The appellant maintained that he had neither aimed the gun nor appreciated that it was pointing at the deceased.

Although the magistrates committed him for manslaughter and he tendered a plea to that offence, he was indicted for and convicted of murder at Birmingham Crown Court. The Court of Appeal (Criminal Division) dismissed his appeal and certified a question asking whether malice aforethought was established by an intention to kill or cause serious harm, or by foresight that either consequence would probably occur.

The central issues were whether the jury had been properly directed on intention and what relationship foresight of consequences bears to the intention required for murder.

1. Appeal allowed unanimously. Lord Bridge of Harwich delivered the leading speech. Lord Hailsham of St Marylebone LC, Lord Fraser of Tullybelton, Lord Edmund-Davies and Lord Keith of Kinkel agreed with it. The murder verdict was unsafe and unsatisfactory. It was set aside and a verdict of manslaughter substituted.

2. Per Lord Bridge, murder requires proof of an intention to kill or cause really serious bodily injury. On the appellant’s evidence, the decisive factual question was whether he appreciated, when pulling the trigger, that the loaded gun was pointing at his stepfather’s head. If he did, an intention to kill was inescapable. If that possibility had never entered his mind, his conduct was highly reckless but the intention required for murder was absent.

3. The trial judge’s direction equating intention with foresight that a consequence would probably happen was unsatisfactory and potentially misleading. The later directions did not put the appellant’s actual case before the jury unmistakably. The jury’s request for clarification demonstrated its difficulty with the issue.

4. Per Lord Bridge, foresight of probable consequences is not a rule of substantive law equivalent to intention. It belongs to the law of evidence. Section 8 of the Criminal Justice Act 1967 leaves the issue with the jury, which must decide intention from all the evidence and draw only such inferences as are proper.

5. The ordinary direction should avoid defining or paraphrasing intention. Elaboration is appropriate only where strictly necessary to prevent misunderstanding. In the exceptional case requiring a foresight direction, the jury should ask whether death or really serious injury was a natural consequence of the defendant’s voluntary act and whether the defendant foresaw it as such. Affirmative answers permit, but do not require, an inference of intention.

6. Lord Bridge rejected the general usefulness of asking whether the act was “aimed at” someone. He also rejected a formulation based merely on deliberately exposing another to a serious risk of death or grievous bodily harm, because it could confuse murderous intention with recklessness.

7. The certified question was answered in the negative. The case was remitted to the Court of Appeal (Criminal Division) for the earliest possible determination of the appropriate sentence.

1. House of Lords: The appeal was allowed unanimously. The murder verdict was set aside, manslaughter was substituted, and the certified question was answered in the negative. Sentence was remitted to the Court of Appeal (Criminal Division).

2. Court of Appeal (Criminal Division): The appeal against the murder conviction was dismissed on 16 December 1983. The court subsequently certified a point of law of general public importance.

3. Birmingham Crown Court: On 17 September 1982, Stephen Brown J and a jury convicted the appellant of murder, notwithstanding his tendered plea of guilty to manslaughter.

4. St Neots Magistrates’ Court: The justices found no prima facie case of murder and committed the appellant for trial on a charge of manslaughter.