R v Woollin
| Jurisdiction | UK Non-devolved |
| Judge | LORD BROWNE-WILKINSON,LORD NOLAN,LORD STEYN,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD |
| Judgment Date | 22 July 1998 |
| Judgment citation (vLex) | [1998] UKHL J0722-1 |
| Date | 22 July 1998 |
| Court | House of Lords |
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
[1998] UKHL J0722-1
Lord Browne-Wilkinson
Lord Nolan
Lord Steyn
Lord Hoffmann
Lord Hope of Craighead
HOUSE OF LORDS
My Lords,
I have read in draft the speeches prepared by my noble and learned friends, Lord Steyn and Lord Hope of Craighead. I too assented to this appeal being allowed, the conviction for murder quashed, the conviction for manslaughter substituted and the matter remitted to the Court of Appeal to pass sentence.
My Lords,
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Steyn and Lord Hope of Craighead. I agree with them, and I have nothing to add.
My Lords,
By an order made on 25 June 1998 your Lordships' House allowed this appeal; quashed the conviction of murder and substituted a conviction of manslaughter; and remitted the matter to the Court of Appeal to pass sentence. I now give my reasons for assenting to that course.
The case in a nutshell
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 Crown did not contend that the appellant desired to kill his son or to cause him serious injury. The issue was whether the appellant nevertheless had the intention to cause serious harm. The appellant denied that he had any such intention. Subject to one qualification, the Recorder of Leeds summed up in accordance with the guidance given by Lord Lane, C.J. in Nedrick [1986] 1 W.L.R. 1025. The guidance of Lord Lane had been as follows (at 1028F):
"Where the charge is murder and in the rare cases where the simple direction [that it is for the jury simply to decide whether the defendant intended to kill or to do serious bodily harm (p. 1027)] 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." (Words in brackets added.)
But towards the end of his summing up the judge directed the jury that if they were satisfied that the appellant "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 jury found that the appellant had the necessary intention; they rejected a defence of provocation; and they convicted the appellant of murder. On appeal to the Court of Appeal (Criminal Division) the appellant's principal ground of appeal was that by directing the jury in terms of substantial risk the judge unacceptably enlarged the mental element of murder. The Court of Appeal rejected this ground of appeal and dismissed the appeal: [1997] 1 Crim.App.R. 97. Giving the judgment of the Court of Appeal Roch L.J. observed about Nedrick (107F) that:
"… although the use of the phrase 'a virtual certainty' may be desirable and may be 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. It is not obligatory to use that phrase or one that means the same thing in cases such as the present where there is other evidence for the jury to consider."
The Court of Appeal certified the following questions as of general importance:
"1. In murder, where there is no direct evidence that the purpose of a defendant was to kill or to inflict serious injury on the victim, is it necessary to direct the jury that they may only infer an intent to do serious injury, if they are satisfied (a) that serious bodily harm was a virtually certain consequence of the defendant's voluntary act and (b) that the defendant appreciated that fact?
"2. If the answer to question 1 is 'yes,' is such a direction necessary in all cases or is it only necessary in cases where the sole evidence of the defendant's intention is to be found in his actions and their consequence to the victim?"
On appeal to your Lordships' House the terrain of the debate covered the correctness in law of the direction recommended by Lord Lane C.J. in Nedrick and, if that direction is sound, whether it should be used only in the limited category of cases envisaged by the Court of Appeal. And counsel for the appellant renewed his submission that by directing the jury in terms of substantial risk the judge illegitimately widened the mental element of murder.
The directions of the judge on the mental element
The facts of the case are fully set out in the careful judgment of Roch L.J: [1997] 1 Crim.App.R. 97. Given that the appeal is concerned with questions of law it is unnecessary at this stage to add to what I have already said about the state of the evidence when the judge came to sum up. But it is necessary to set out the judge's relevant directions of law with a brief explanation of the context and implications. The judge reminded the jury that the Crown did not allege an intention to kill. He accordingly concentrated on intention to do really serious bodily harm. He further reminded the jury that the Crown accepted that the defendant did not want to cause the child serious injuries. The judge then directed the jury as follows:
"In looking at this, you should ask yourselves two questions and I am going to suggest that you write them down. First of all, how probable was the consequence which resulted from his throw, the consequence being, as you know, serious injury? How probable was the consequence of serious injury which resulted from his throw? Secondly, did he foresee that consequence in the second before or at the time of throwing?
"The second question is of particular importance, members of the jury, because he could not have intended serious harm could he, if he did not foresee the consequence and did not appreciate at the time that serious harm might result from his throw? If he thought, or may have thought, that in throwing the child he was exposing him to only the slight risk of being injured, then you would probably readily conclude that he did not intend to cause serious injury, because it was outside his contemplation that he would be seriously injured. But the defence say here that he never thought about the consequence at all when he threw the child. He did not give it a moment's thought. Again, if that is right, or may be right, you may readily conclude that he did not appreciate that serious harm would result. It follows from that, if that is how you find, that you cannot infer that he intended to do Karl really serious harm unless you are sure that serious harm was a virtual certainty from what he was doing and he appreciated that that was the case.
"So, members of the jury, that is how you should approach this question-and it is a vital question in the case-'Are we sure that the prosecution have established that the defendant intended to cause Karl serious harm at the time that he threw him?'" (My emphasis added.)
The first two questions identified by the judge appear in Lord Lane's guidance in Nedrick: at p. 1028B-D. The underlined passage is a classic direction in accordance with Nedrick: at p. 1028F.
After an overnight adjournment the judge continued his summing up. He returned to the mental element which had to be established in order to find the appellant guilty of murder. On this occasion the judge did not use the Nedrick direction. Instead the judge directed the jury as follows:
"If you think that he had not given any thought to the consequences of what he was doing before he did it, then the Crown would have failed to prove the necessary intent, the intent to cause really serious harm, for murder and you should acquit him of murder and convict him of manslaughter.
"If, on the other hand, you reject that interpretation and 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."
It is plain, and the Crown accepts, that a direction posing an issue as to appreciation of a "substantial risk" of causing serious injury is wider than a direction framed in terms of appreciation of a "virtual certainty (barring some unforeseen intervention)." If Lord Lane correctly stated the law in Nedrick, the judge's direction in terms of substantial risk was wrong. But the Crown argued, as I have indicated, that Nedrick was wrongly decided or, alternatively, that the principle as enunciated by Lord Lane does not apply to the present case.
The premises of the appeal
The first premise of any examination of the issues raised by this appeal is that it is at present settled law that a defendant may be convicted of murder if it is established (1) that he had an intent to kill or (2) that he had an intent to cause really serious bodily injury: Reg. v. Cunningham [1982] A.C. 566. In regard to (2) the intent does not correspond to the harm which resulted, i.e. the causing of death. It is a species of constructive crime: see my speech in Reg. v. Powell (Anthony) [1997] 3 W.L.R. 959, 966D-967C and Lord Mustill's concurring observations, at p. 963H. This feature of the law of murder may have contributed to the problems which courts have experienced with mens rea in murder. But, unless the House of Lords or Parliament have occasion to revisit this point, the...
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