R v Nedrick and R v Woollin: intention in murder.

Lettie Smythers: Tutorial Group 9 3rd January 2003

R v Nedrick and R v Woollin: intention in murder.

Many offences require 'intent' as an essential part of the crime, not only in murder but also in criminal attempts, grievous bodily harm and many other offences. The fundamental idea is that the defendant's purpose in his or her acts is to bring about the specific result. Murder and manslaughter have the same actus reus – the unlawful killing of a reasonable creature (i.e. a natural person) within the Queens Peace - but murder is distinguished from manslaughter by the presence or absence of malice aforethought. Since the passing of the Homicide Act 1957 it has generally been accepted that the mens rea is not restricted to an intention to kill; an intention to cause grievous bodily harm will also suffice and constitute malice aforethought (R v Vickers [1957] 2 QB 664).

However this apparently simple formula conceals several issues about mens rea generally that have been the subject of a series of House of Lords decisions over the last 20 years. The mental element required for murder has varied over the centuries, from when judges were prepared to treat killing by any unlawful act as murder, there has been a steady contraction of the definition of murder. Section 1 of the Homicide Act 1957 provided for the abolition of constructive malice, whereby a person would be guilty of murder if they caused death whilst undertaking any other violent felony. This has left two principal kinds of malice aforethought which constitute the mental element of murder: ‘express’ and ‘implied’.

It would be reasonable to assume that the definition of such a fundamental term as ‘intent’ would have long been clearly determined, but the matter has in fact only recently been (substantially) resolved. However, the meaning of ‘intent’, which is required by these two types of malice to constitute murder, has been the subject of much controversy. Judicial disparity has occurred in the application of the elusive ‘true nature’ of intent, which is reflected in the case law regarding murder. Section 1 of the Homicide Act 1957 did nothing to expressly settle the meaning of ‘malice aforethought’; it remains a question of common law. The most recent authorities on determining whether the defendant had the necessary intent, and how the jury should be directed on this issue, are the cases on R v Nedrick and R v Woollin. However, to gain the full extent of the history and arguments behind the current decisions, it is necessary to give a brief examination of the prior judicial decisions.

In Hyam v. Director of Public Prosecutions, a woman deliberately set fire to her rival in love's house without warning. It was noted that she took steps to ensure that her lover was not in the house at the time. The other woman's two daughters died in the fire. Lord Hailsham, giving judgement in the House of Lords, said that if the jury were satisfied that the defendant realised that is was highly probable that one (or more) of the occupants would suffer at least really serious bodily harm from her actions but nevertheless she had deliberately chosen to expose them to that risk then she would be guilty of murder. In effect, in Hyam intention is equated with foresight of a likely result, even where it is not the accused’s purpose or object to achieve that result. The House of Lords by a majority of 3:2 upheld Mrs Hyams’s conviction for murder, though they did not produce a coherent judgment which clearly defined the requirement for intention.

Eleven years later, the House of Lords again had to consider what direction a jury should be given on the meaning of intention, in R v. Moloney. This case involved a soldier home on leave for his grandparents' ruby wedding anniversary party, after which he blew his stepfather's head off with a shotgun. The two men who, it was claimed, always had a "close and loving relationship", were having a drunken contest about who could load and fire the fastest. Moloney won. This was a difficult case, as there appeared to be no reason why Moloney should want to even hurt ...

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'judge should normally avoid an elaboration or paraphrase of what is meant by intent...and should leave to the jury's good sense the question whether the accused acted with the necessary intent'

If pressed, however, the judge should tell the jury to consider two things:

i) whether death or really serious injury was a natural consequence of the accused's voluntary act; and

ii) whether the accused foresaw that it would be a natural consequence of his act.

If so, the jury could, if they so chose, draw the inference that the defendant intended that consequence.

The objective of Moloney was to place a stricter "test" upon the finding of intention than Hyam, which, because it only required foresight of a likely result as equalling intention, was wrong in two ways. Firstly, because foresight of a likely result (and deciding to continue with that act) is more akin to recklessness than intention. Secondly, the jury can only infer intention from the evidence. It is they who decide how much "weight" to attach to it. It is not a question for the substantive (eg criminal) law to tell them that they should equate (or accept) something else with intention. This point was made clear in s.8 of the Criminal Justice Act 1967: 'A jury ...shall not be bound in law to infer [intention] but shall decide...by reference to all the evidence...'.

The so-called Moloney "guidelines" are themselves also dubious, however. This is because they mention a 'natural consequence' and 'natural' could easily be mistaken for 'direct consequence', and as the jury are considering the facts with the benefit of hindsight, there is a very real danger that because something has happened, they may feel compelled to infer that the accused (and anyone else) could have foreseen that it would happen.

Further, the case of Moloney was difficult in other respects because there was no apparent motive. It is difficult to imagine why this case was used as an example of determining intention, because without any motive, the jury's task was difficult in the extreme.

In R v. Hancock and Shankland, the Moloney guidelines were qualified. In this case, two striking miners pushed a concrete block and post from a bridge into the path of a convoy taking a working miner to the pit. The taxi driver, in whose cab the working miner was travelling, was killed by the concrete post.

In the Court of Appeal, Lord Lane (the Lord Chief Justice), specifically addressing the Moloney guidelines, said that directions to juries should not merely refer to the natural consequences of the accused's voluntary act, but should also refer to the probable consequences of his act. When the case came before the House of Lords, however, Lord Scarman advised that Lord Lane's reformulation of the Moloney guidelines should not be used by trial judges when summing up to a jury because 'their elaborate structure [could] create difficulty'.

Instead, Lord Scarman suggested that:

"guidelines should avoid generalisation so far as is possible and encourage the jury to exercise their common sense in reaching what is their decision on the facts".

Lord Scarman felt that jurors should receive specific guidance on the issue of probability, and should be informed that the greater the probability of a consequence occurring, the more likely it is that the consequence was foreseen, and thus the greater probability that the consequence was intended. In Moloney Lord Bridge ascertained that the jury would be entitled to infer intention only when the accused foresaw the probability of the result occurring as a ‘moral certainty’ or ‘little short of overwhelming’. However, in Hancock and Shankland the Court of Appeal spoke of the ‘high likelihood’ of the consequence occurring. Lord Bridge in Moloney suggested that the jury should be as whether the accused foresaw the consequence as a 'natural' result of his actions whereas Lord Lane in Hancock retreated from this position - did the defendant appreciate that there was a high degree of likelihood of death or serious injury? If so, then the jury were entitled to draw the conclusion that the defendant intended death or serious injury.

The case of R v Nedrick [1986] took steps to clarify the law and produced the model direction on intention wherever a simple direction is not appropriate. The facts of the case are very similar to those in Hyam. In this instance, a man poured paraffin through the letterbox of a woman against whom he bore a grudge, and lit it. He gave no warning. The woman's twelve-year-old son died in the resulting fire. Again (as in Moloney), the jury were asked to consider two questions:

How probable was the consequence which resulted from the defendant's voluntary act?

ii. Did he foresee that consequence?

If the jury are satisfied in the affirmative in both parts of this test, then they may infer intention, but that is all. Intention is not proven. If the jury accept that the defendant intended the action from that inference, by reference to all the evidence, then (and only then) is intention proved. It is the jury's acceptance of this fact that is equivalent to proof that it existed, nothing else. Lane suggests that, where a simple direction on intent is insufficient;

“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 defendants actions and that the defendant appreciated that such was the case.”

In many ways, this is a stricter test than Hancock, limiting the aspect of probability to ‘a virtual certainty’.

The 'virtual certainty' test in Nedrick has now been followed by the House of Lords but simplified in Woollin. The appellant lost his temper and threw his three-month-old son on to a hard surface. His son sustained a fractured skull and died. The appellant was charged with murder. The trial judge directed the jury along the lines of Nedrick but also said

If you.....are quite satisfied that he was aware of what he was doing and must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder

The appellant’s substantial point of appeal was that in directing the jury in terms of ‘substantial risk’, the judge unacceptably enlarged the mental element of murder. Giving judgment in the Court of Appeal, Roch LJ observed about Nedrick at page 107, that although the use of the phrase ‘a virtual certainty’ may be desirable and necessary,

“it is only necessary where the evidence of intent is limited to the admitted actions of the accused and the consequences of those actions.”

The House of Lords is Woollin did not agree with the Court of Appeals decision, and concluded that giving a direction in accordance with Nedrick would be appropriate in any case in which the defendant may not have desired the result of his act. The House of Lords approved the model direction in Nedrick, holding that the trial judge had made a material misdirection in the terms of “substantial risk”. However they did seek to make three observations as to the alteration of the test. Lord Steyn thought that the 2 questions suggestion by Lord Lane that the jury might find it useful to ask themselves (how probable the consequences resulting from the defendants voluntary act were, and if they had been foreseen by the accused) only detracted from the clarity of the direction and would rarely, if ever, be useful. The words ‘to infer’ in the model direction were to be replaced by the ‘words to find’. Thirdly, in the paragraph which states:

“Where a man realises that it is for all practicable 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 decision is one for the jury to be reached upon a consideration of all the evidence.”

Lord Hope stated that whereas the last sentence should always be made to the jury and is clearly correct, the remainder of the paragraph formed no part of the model direction.

It would therefore appear that the present state of the law is a consolidation of the Nedrick test, subject to the alterations made by Woollin. Despite clarifying how the meaning of intention should be directed to the jury, the courts have still refrained from providing an actual definition of intention, despite the fact that the ordinary, everyday meaning of the word provides a very narrow concept of murder.

Since the decision is Nedrick the law concerning intention has been considered in several reports. The terms used by the Law Commission in the Draft Criminal Code:

'a person acts "intentionally" with respect to ... a result when he acts in order to bring it about or being aware that it will occur in the ordinary course of events'.

Following Professor J.C. Smith's argument in his article, 'A Note on Intention', this definition has been altered. The ‘latest’ definition of intention, as endorsed by the Law Commission, is now to be found in the Draft Criminal Law Bill clause 14(1)(6), which states that intention can be attributed to a person 'although it is not his purpose to cause it, 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'. If this was enacted, then statute would supersede the judicial definition of intention. Until such times as the meaning of intention is enacted in a statute, then the law at present is as stated in Nedrick. The jury will retain its central role, deciding in each case whether a defendant intended to kill or intended to cause grievous bodily harm, regardless of whether the legal definition of intention is settled by the judiciary or the legislature. Nedrick makes it clear that there is a need to prove intention and that the test is a subjective one. "Intention", however, remains undefined and is to be determined by the jury through the operation of this subjective test.