Doctrinal Rationality after Woolin

Published date01 May 1999
Date01 May 1999
AuthorWilliam Wilson
Doctrinal Rationality after Woollin
William Wilson*
There will be some who breathe a sigh of relief following the House of Lords’
decision in Woollin.1At last, it seems, the meaning of intention in the criminal law
is cogent and stable and the mens rea for murder is as close as the common law is
likely to get in providing a bright line between the culpability associated with this
crime in contrast with manslaughter. The state of the law seems now largely to
coincide with the meaning optimistically attributed to it by the majority of
academic commentators and successive reform bodies.2The fudge, initiated in
Hancock3and which reached its apogee in Nedrick4as to whether intention is a
state of mind which can be inferred from foresight of probability or, if not
probability, then virtual certainty, or whether foresight of virtual certainty is a form
of intention has been eradicated. The House of Lords in Woollin has firmly nailed
its colours to the mast of the latter. Everything has fallen neatly into place. Or has
it? I hope to show here that it has not – that the present meaning of intention is still
generally unstable and that the decision renders the broad doctrinal terrain of
homicide less intelligible.
The facts
W, having lost his temper with his baby son, threw him with much force across the
room causing the infant to hit his head on a hard object. The latter later died as a
consequence of his injuries. W was charged with murder. Under interrogation W
admitted he realised there was a risk of serious injury but denied any desire to kill
or hurt the child. The prosecution case, relying on Nedrick, was that the necessary
intention to kill or cause serious injury was present if, when acting, W must have
known it was virtually certain that such injury would be caused. His defence, inter
alia, was lack of intent to cause serious injury.
The trial judge directed the jury that they must be satisfied W intended the death
of or serious injury to the child. At first, he directed them, in accordance with the
model direction in Nedrick, that they could infer intention from their belief, if they
had one, that the accused foresaw either of these consequence as a virtual certainty.
However he went on to say:
If he had not given any thought to the consequences of what he was doing then the Crown
would have failed to prove the necessary intention to cause really serious harm and you
should acquit. On the other hand if you reject that interpretation and were quite satisfied that
ßThe Modern Law Review Limited 1999 (MLR 62:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
* Law Department, Brunel University.
2 See for example A.J. Ashworth ‘Criminal Liability in a Medical Context: The Treatment of Good
Intentions’ in A.P. Simester and A.T.H. Smith (eds) Harm and Culpability (Oxford: Clarendon, 1996)
173; JC Smith ‘A Note on Intention’ [1990] Crim LR 85; J.C. Smith and Brian Hogan Criminal Law
(London: Butterworths, 1996) 58–60; Law Commission A Criminal Code for England and Wales,No
177 cl 18, (London: HMSO, 1989).
3Hancock and Shankland [1986] 1 All ER 641.
he was aware of what he was doing and must have realised and appreciated when he threw
the child that there was substantial risk that he would cause serious injury to it then it would
be open to you to find that he intended to cause serious injury to the child.
The jury convicted on this basis.
Woollin in the Court of Appeal
It was argued on appeal that the judge had misdirected the jury. The approved
direction in cases where the jury needed guidance as to what intention meant was
that appearing in Nedrick. This is as follows:
Where the charge is murder and in the rare cases where the simple direction . . . is not
enough, 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 defendant’s actions and that the defendant
appreciated that such was the case.5
The basic defence objection was that the jury might have thought that ‘[realising
that] there was a substantial risk that he would cause serious injury’ constituted the
intention demanded by the offence definition. Clearly this is not the case and has
not been so since Moloney effectively overruled Hyam.6In this latter case, on a
charge of murder, a majority of their Lordships had decided that a person who
acted with foresight of a consequence (here death or serious injury) to a specified
(though uncertain) degree of probability intended that consequence. This ruling
both blurred the distinction between murder and manslaughter and between
intention and recklessness. Moloney, in an attempt to recover some doctrinal
clarity, stated that what a person foresees and what he intends are different states of
mind. The former could only, therefore, operate as evidence of the latter.
The Court of Appeal, in Woollin, said that the trial judge’s direction was
acceptable since it had been made clear to the jury that they were looking for
intention and that foresight of a substantial risk was only evidence from which they
might infer such intention. The view was taken that the jury would not have
misunderstood from the direction as a whole that the judge was asking them to find
intention. This finding would have been more plausible perhaps if the trial judge
had defined intention. But he did not. As a result we have no means of knowing
whether the jury convicted because they thought that foresight of substantial risk
was enough in itself, or because, on the basis of the evidence put to them, they
were convinced that it was the accused’s purpose to cause the baby serious injury,
or because they favoured some other test of intention – say an attitude of utter
indifference. It is difficult to see, then, how the Court of Appeal could have
reached the conclusion that the jury would not have mistaken what they were
supposed to be looking for. Frustratingly, as with the trial judge and following the
example set in Hancock and Nedrick, the Court of Appeal did not specify what
intention meant and how foresight of the substantial risk related to it.
Nedrick had offered the following (equivocal) insight. Foresight of a
consequence is certainly evidence that it was intended if it is foresight of virtual/
moral certainty. If F throws his son off the top floor of the Empire State Building
he can deny the intention to kill until he is blue in the face, but nobody need take
5 Cited at [1998] 4 All ER 103, 105.
May 1999] Doctrinal Rationality after Woollin
ßThe Modern Law Review Limited 1999 449

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