R v Woollin

Where a defendant did not act with the purpose of killing or causing serious bodily harm, a jury may find the intention required for murder only if death or serious bodily harm was a virtual certainty, barring unforeseen intervention, from the defendant’s voluntary act and the defendant appreciated that fact. The decision remains for the jury on all the evidence.

Foresight of a substantial risk is insufficient. Such a direction blurs the boundary between intention and recklessness, and therefore between murder and manslaughter. The virtual-certainty direction may be appropriate whenever the defendant did not desire the prohibited result, although the trial judge decides what direction the circumstances require.

The appellant lost his temper and threw his three-month-old son onto a hard surface. The child sustained a fractured skull and died. The Crown did not allege that the appellant desired death or serious injury, but contended that he intended to cause really serious bodily harm.

The Recorder directed the jury correctly in terms of virtual certainty, but later stated that an appreciation of a substantial risk could permit a finding of intention. The jury convicted the appellant of murder. The Court of Appeal (Criminal Division) dismissed his appeal in [1997] 1 Crim App R 97, holding that a virtual-certainty direction was unnecessary where evidence of intention extended beyond the accused’s acts and their consequences.

The central issues were whether the virtual-certainty direction in R v Nedrick was correct and whether its use was confined to cases in which the accused’s actions and their consequences provided the sole evidence of intention.

1. Appeal allowed unanimously. Lord Steyn delivered the leading speech. Lord Hope of Craighead agreed and added observations. Lord Browne-Wilkinson, Lord Nolan and Lord Hoffmann agreed with both speeches. The murder conviction was quashed, a manslaughter conviction substituted, and the matter remitted to the Court of Appeal for sentence.

2. Per Lord Steyn, the established mental element of murder is an intention to kill or an intention to cause really serious bodily injury. Where the defendant did not desire either result, the tried-and-tested direction in R v Nedrick correctly fixed the necessary level of foresight. The jury should not be entitled to find the necessary intention unless sure that death or serious bodily harm was a virtual certainty, barring unforeseen intervention, from the defendant’s actions and that the defendant appreciated this.

3. Lord Steyn held that the direction accords with Criminal Justice Act 1967, section 8. It does not prevent the jury from considering all relevant evidence. It identifies the state of mind sufficient for murder where there is no purpose to kill or cause serious harm. The ultimate decision remains for the jury on all the evidence.

4. Per Lord Steyn, the Court of Appeal’s limitation of the direction to cases where intention could be inferred only from the accused’s acts and their consequences was wrong. The distinction lacked principle and would create practical difficulty. A virtual-certainty direction may be appropriate whenever the defendant may not have desired the result, although the trial judge remains best placed to decide what direction the case requires.

5. Lord Steyn and Lord Hope considered that the preliminary questions about the probability and foresight of the consequence were unlikely ever to assist and could detract from the critical direction’s clarity. They also approved replacing “infer” with “find”. A simple direction should be given in as few words as possible, followed by a reminder that the decision belongs to the jury upon all the evidence.

6. The Recorder’s later direction based on appreciation of a “substantial risk” materially enlarged the mental element of murder. It blurred the line between intention and recklessness, and therefore between murder and manslaughter. The earlier correct direction did not cure this error because the jury was left to choose between inconsistent legal directions. The evidence did not make murder an inevitable verdict, so the conviction was unsafe.

7. Lord Hope added that some terrorist cases may involve a direct intention aimed at a class of potential victims. In such circumstances it may be unnecessary to rely upon indirect intention or the alternative verdict of manslaughter.

1. House of Lords: By order dated 25 June 1998, unanimously allowed the appeal, quashed the murder conviction, substituted manslaughter and remitted the matter to the Court of Appeal to pass sentence. Reasons were delivered on 22 July 1998: [1998] UKHL 28; [1999] 1 AC 82.

2. Court of Appeal (Criminal Division): Dismissed the appeal, holding that the virtual-certainty formulation was not obligatory where evidence of intention extended beyond the accused’s acts and their consequences: [1997] 1 Crim App R 97.

3. Crown Court at Leeds: The Recorder directed the jury in terms both of virtual certainty and substantial risk. The jury rejected provocation and convicted the appellant of murder.