R v Hancock (R v Shankland)

For murder, the prosecution must prove an intention to kill or cause really serious bodily harm. Foresight of death or serious injury is evidence from which intention may be inferred, rather than intention itself.

Where foresight is relevant, the jury should consider the probability of the consequence. The greater that probability, the stronger the possible inferences that the accused foresaw and intended it. Probability remains one factor to be assessed with all the evidence.

General jury guidelines are not rules of law. A trial judge should tailor the directions to the particular evidence, explain the burden of proof and preserve the jury’s responsibility for deciding the facts.

Two striking miners dropped concrete objects from a bridge as a convoy carrying a working miner approached. The objects struck a taxi and killed its driver. The accused maintained that they intended to obstruct the road and frighten the miner, without killing or seriously injuring anyone.

They were convicted of murder after the trial judge directed the jury in accordance with the foresight guidelines in R v Moloney [1985] AC 905. The Court of Appeal (Criminal Division), reported at [1985] 3 WLR 1014, quashed the murder convictions and substituted manslaughter verdicts because the direction did not explain the significance of probability.

The Director of Public Prosecutions appealed. The certified question was whether the two questions suggested in Moloney required amplification.

1. The appeal was dismissed unanimously and the certified question was answered in the affirmative. Lord Scarman delivered the leading speech. Lord Keith of Kinkel, Lord Roskill, Lord Brightman and Lord Griffiths agreed with his reasons. The Court of Appeal’s orders quashing the murder convictions and substituting manslaughter verdicts were affirmed.

2. Per Lord Scarman, R v Moloney [1985] AC 905 had authoritatively clarified three matters. Murder requires a specific intention to kill or inflict serious bodily harm. Foresight of consequences is evidence of intention and must be assessed with all the other evidence. The probability of the consequence is an important, and sometimes critical, consideration when the jury decides whether intention may be inferred.

3. The two-question guidance in Moloney was nevertheless defective if used without amplification. Its reference to a “natural consequence” did not adequately direct attention to probability. The jury should be told that the greater the probability of a consequence, the more likely it was foreseen. If foreseen, greater probability also strengthens the inference that it was intended. Even a very high probability remains a factor to be considered with all the evidence.

4. The distinction between the offence and the evidence used to prove it is vital. Foresight must not become a legal presumption of intention. Section 8 of the Criminal Justice Act 1967 restored the matter to one of inference for the jury in all the circumstances.

5. General guidelines for jury directions should be issued sparingly and are not rules of law. A trial judge should explain the offence and applicable law, identify the burden and standard of proof, put both sides’ cases, assist the jury to evaluate the particular evidence and make clear that the facts are for the jury. The omission concerning probability may have misled the jury in this case.

1. House of Lords: Dismissed the Director of Public Prosecutions’ appeal, answered the certified question affirmatively and affirmed the Court of Appeal’s orders. Costs were ordered from central funds under section 10 of the Costs in Criminal Cases Act 1973.

2. Court of Appeal (Criminal Division): In the decision reported at [1985] 3 WLR 1014, quashed the murder convictions and substituted verdicts of manslaughter because the foresight direction might have misled the jury. It refused leave to appeal but certified a point of general public importance.

3. Crown Court at Cardiff: Convicted both respondents of murder after the judge directed the jury by reference to the guidance in R v Moloney [1985] AC 905.