R. v. Moloney and the Demise of Foresight?
| Author | Steve Uglow |
| DOI | 10.1177/002201838504900407 |
| Published date | 01 November 1985 |
| Date | 01 November 1985 |
| Subject Matter | Article |
R. v.
MOLONEY
AND
THE
DEMISE
OF
FORESIGHT?
Steve Uglow*
After
the House of Lords' decisions in Hyam' and
Cunninghamf
the law on the mental element in murder seemed, if not wholly
satisfactory, at least well settled.3Proof that the defendant foresaw
death or serious harm as a probable consequence was sufficient to
constitute malice aforethought. Now Moloney" casts doubt on this,
since Lord Bridge suggests that malice aforethought is
only
constituted by the intent to kill or to cause serious harm. Foresight
of consequences is at best evidence of intent. While this relaxation
of
Hyam
is to be welcomed, it is difficult to see why the House did
not regard itselfas bound by that case. Moreoverthe
other
strand of
the judgment appears to undermine this
reform-while
treating
foresight as evidence of intention, it also presents it as a
(conclusive?) presumption of intention in a manner that brings back
echoes of D. P. P. v. Smith:5
"In
the rare case inwhich itis necessary
to direct ajury by reference to foresight of consequences, I do not
believe it is necessary for the judge to do more than invite the jury to
consider two questions. First, was death or really serious injury in a
murder
case (or whatever relevant consequences must be proved to
have been intended in any
other
case) a natural consequence of the
defendant's voluntary act? Second, did the defendant foresee that
consequence as being a natural consequence of his act?
The
jury
should then be told that if they answer yes to both questions it is a
proper
inference for them to draw that he intended the
consequence.
,,6
The
defendant was on good terms with his step-father but they
both
drank
heavily at a family anniversary and late in the evening
•Lecturer in Law, University of Kent, Canterbury.
1. (1975) x.c. 55; (1974) 2 All
E.R.
41.
2. (1981) 2 All
E.R.
863.
3. Smith and Hogan, Criminal Law (5th
ed.,
1983), pp. 291-297 (though they
regard the rule in Hyam as a strict one)
4. (1985) 1All
E.R.
1025.
5. (1961)
A.C.
290; (1960) 3 All
E.R.
161.
6. (1985) I All
E.R.
1025at 1039
e-g.
376
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