"The Nedrick/Woolin direction on intention manages to produce a clear distinction between intention and recklessness - Explain and discuss.
"The Nedrick/Woolin direction on intention manages to produce a clear distinction between intention and recklessness. However, such clarity carries the price of both (a) not being able to convict people who ought to be regarded as having the culpability for murder and (b) unjust convictions for murder."
Explain and discuss.
Nedrick1 updated the law surrounding intention by constructing a model direction which states that a jury should be directed by the judge '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 realised that such was the case'2 Woollin3 extended the verdict given in Nedrick after the 'entitled to infer' intention on the part of the jury was updated to 'entitled to find' by the judges in the Woollin case. Woollin upheld Nedrick's test after the House of Lords stated that the trial judge enlarged the scope of the mental element required for murder and had misdirected the jury. The trial judge told the jury that a 'substantial risk' as to the consequences was only required to infer intention, but the House of Lords declared that the consequences have to be (a) virtually certain and (b) known to be of virtual certainty by the defendant for a conviction of murder to be upheld. Judges have always been reluctant to define the meaning of the word 'intention' as can be seen in Moloney4 when the House of Lords argued that judges should only explain that intention differs from 'desire and motive' and Lord Steyn put forward the view that 'it does not follow that "intent" necessarily has the same meaning in every context in the criminal law'. Although the Nedrick/Woollin direction on intention manages to produce a clear distinction between intention and recklessness, many leading writers such as Alan Norrie have questioned the nature of this clarity 'I argue that the law of indirect intent may still remain unclear after the recent House of Lords decision in Woollin'5
The decision reached in Nedrick and Woollin allows for those who should be regarded as having the culpability of murder to only be convicted of manslaughter. Lord Styen acknowledged the much-cited 'terrorist example'6 did not falling within the Woollin law of indirect intention. A terrorist who plants a bomb, which subsequently detonates and kills a member of the bomb disposal team, would not be guilty of murder under the Nedrick/Woollin direction on indirect intention. In order for a defendant to be convicted of murder under the Nedrick/Woollin direction, the consequences of their actions must have been virtually certain ...
This is a preview of the whole essay
The decision reached in Nedrick and Woollin allows for those who should be regarded as having the culpability of murder to only be convicted of manslaughter. Lord Styen acknowledged the much-cited 'terrorist example'6 did not falling within the Woollin law of indirect intention. A terrorist who plants a bomb, which subsequently detonates and kills a member of the bomb disposal team, would not be guilty of murder under the Nedrick/Woollin direction on indirect intention. In order for a defendant to be convicted of murder under the Nedrick/Woollin direction, the consequences of their actions must have been virtually certain and they must have known them to be. In the terrorist example, 'it might realistically be said that the terrorist did not foresee the killing of a member of the bomb disposal team as a virtual certainty' and therefore would not be classified as a murderer. The terrorist would be convicted of manslaughter under the Nedrick/Woollin direction, which although may result in the terrorist being sentenced to life, still does not seem acceptable. Therefore, the Nedrick/Woollin direction on intent does allow those who should be convicted of murder, to escape the charge of murder in favour of manslaughter. This is contrary to Scots law, whereby acts of 'wicked recklessness' do fall within the boundaries of murder, rather than manslaughter. In Scotland, the terrorist bomber would therefore be convicted of murder because although the consequences were not virtually certain, the act portrayed the characteristics of a wickedly reckless crime. A House of Lords Select Committee rejected the inclusion of such a consideration into English law, largely based on the premise that those convicted of manslaughter can still receive a life sentence. As Lord Steyn said in Woollin 'Immediately below murder there is available a verdict of manslaughter which may attract in the discretion of the court a life sentence'7
Over-inclusiveness is something which has to be considered in the direction on intent encompassed by the Nedrick/Woollin model. Alan Norrie suggests that there are cases which would fall within the Nedrick/Woollin model as murder, but which should not. '[There] are cases where there is a 'moral threshold' such that even though the accused could foresee a result as virtually certain, it is so at odds with his moral conception of what he was doing that it could not be conceived as a result that he intended'8 The case of Steane9 shows how someone who foresees the consequences of their action as being virtually certain, would fall within the Nedrick/Woollin direction on intention, even though the intent was one of innocence. Norrie argues that it 'is plausible to argue that at the nub of the case lies a moral gap between what Steane did, broadcasting to assist the enemy, and his purpose, to save his family.'10 Motive is not something to be considered when deciding if a defendant has intent to commit a crime or not. This had been illustrated in the cases of Yip Chiu-Cheung v R11 and R v Latif12 where the Nedrick/Woollin test for oblique intention would not make allowances for those whose 'motive for pursuing their primary purpose is morally inconsistent with the mens rea for the offence'13 An example given by the Law Commission is where someone throws their child from the top of a blazing block of flats in a vain attempt to save the child's life. The individual would foresee that the chances of death were virtually certain, but morally speaking, he did not intend to kill the child, rather, to save the child. Following the Nedrick/Woollin direction on intent, he would still be convicted of murder because the defendant realised that death or serious bodily harm was a virtual certainty of his actions. In cases of conjoined twins, the courts have followed the line of Nedrick/Woollin in that an operation cannot go ahead if the consequences of that operation will be the virtual certain death of one of the twins. This is illustrated in Re A (Children) (Conjoined twins) where the judge stated 'however little they desired that end...her death would inevitably follow' The death of one of the children was virtually certain and the surgeon would have known this to be the case and therefore under the Nedrick/Woollin model on intention, the surgeon would have the intent for murder if he went ahead with the operation despite his intentions clearly not sharing the same characteristics as that of a murderer. This does raise the question as to whether the Nedrick/Woollin model provides for unjust convictions of murder.
Their Lordships have yet 'to present a clear and cogent definition of intention'14 which will inevitably lead to queries arising as to whether defendants had the necessary mens rea to be convicted of murder. Lord Steyn, in R v Woollin added 'that the trial judge is best placed to decide what direction is required by the circumstances of the case' showing that the law is still open for interpretation. Nedrick and Woollin did add clarity to the meaning of oblique intention in concluding that a jury can infer the necessary intention if 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 realised that such was the case. However, although this does provide a clear framework to which intention can be ascertained, it could be said to be over-inclusive in that it can be used to convict those who do not appear to be guilty of murder as well as being under-inclusive in other circumstances as it lacks the scope to convict those who should be convicted of murder, as can be seen in the terrorist example by those who act with 'wicked recklessness'
Word count = 1,249
Word count including footnotes = 1,343
(1986) 1 W.L.R. 1025
2 (1986) 83 Cr App R 267 - Lord Steyn
3 (1999) 1 A.C. 82
4 (1985) A.C. 905
5 Alan Norrie - 'After Woollin' (1999) Crim LR 532
6 1 of the 5 Law Lords presiding over the case
7 (1998) 4 All ER 103, 112
8 Alan Norrie - 'After Woollin' (1999) Crim LR 532
9 (1947) K.B. 997
0 Alan Norrie - 'After Woollin' (1999) Crim LR 532
1 (1994) 3 W.L.R. 514
2 (1996) 1 All E.R.
3 Michael J Allen - 'Elliot and Wood's Cases and Materials on Criminal Law (Eighth Edition)'
4 William Wilson - 'Doctrinal Rationality after Woollin' (1999) 62 M.L.R 448
James Moore
