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Indirect Intention

R v Woollin

Woollin remains the leading precedent used when the courts and juries are considering oblique intention; Norrie states that that 'Woollin constitutes the last word on the indirect intention for murder'

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Hyam v DPP [1975] AC 55

The defendant, in order to frighten Mrs Booth, her rival for the affections of Mr X, put burning newspaper through the letterbox of Booth's house and caused the death of two of her children. She claimed that she had not meant to kill but had foreseen death or grievous bodily harm as a highly probable result of her actions. Ackner J directed the jury that the defendant was guilty if she knew that it was highly probable that her act would cause at least serious bodily harm.

Although Lord Hailsham LC stated that he did not think that foresight of a high degree of probability is at all the same thing as intention, and it is not foresight but intention which constitiutes the mental element in murder, the House of Lords (by a 3-2 majority), held that foresight on the part of the defendant that his actions were likely, or highly likely, to cause death or grievous bodily harm was sufficient mens rea for murder.

R v Hancock and Shankland [1986] 2 WLR 257.

The defendants were striking miners who threw a concrete block from a bridge onto the motorway below. It struck a taxi that was carrying a working miner and killed the driver. The defendants argued that they only intended to block the road but not to kill or cause grievous bodily harm. The trial judge directed the jury on the basis of Lord Bridge's statements in Moloney (ie, was death or grievous bodily harm a natural consequence of what was done, and did the defendants foresee that consequence as a natural consequence?) and the defendants were convicted of murder.

On appeal a verdict of manslaughter was substituted by the House of Lords who reaffirmed that the prosecution has to establish an intention to kill or do grievous bodily harm on the part of the defendant. Lord Scarman felt that the Moloney guidelines on the relationship between foresight and intention were unsatisfactory as they were likely to mislead a jury. Lord Scarman expressed the view that intention was not to be equated with foresight of consequences, but that intention could be established if there was evidence of foresight. The jury should therefore consider whether the defendant foresaw a consequence. It should be explained to the jury that the greater the probability of a consequence occurring, the more likely that it was foreseen, and the more likely that it was foreseen, the more likely it is that it was intended. In short, foresight was to be regarded as evidence of intention, not as an alternative form of it.

R v Nedrick (1986) 83 Cr App 267.

A child had burned to death in a house where the defendant had, without warning, put a petrol bomb through the letter box. He admitted to starting the fire but stated that he only wanted to frighten the owner of the house. The Court of Appeal overturned the murder conviction and substituted a verdict of manslaughter as the judge had misdirected the jury.

Lord Lane CJ provided a model direction for a jury about intent in a murder case where the defendant did a manifestly dangerous act and someone died as a result. Lord Lane CJ suggested that when determining whether the defendant had the necessary intent, it might be helpful for a jury to ask themselves two questions: (1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence?

* If he did not appreciate that death or serious bodily harm was likely to result from his act, he cannot have intended to bring it about.
* If he did, but thought that the risk to which he was exposing the person killed was only slight, then it might be easy for the jury to conclude that he did not intend to bring about the result.
* On the other hand, if the jury were satisfied that at the material time the defendant recognised that death or serious bodily harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result.

R v Walker and Hayles (1990) 90 Cr App R 226.

The defendants threw their victim from a third floor balcony. At their trial for attempted murder the trial judge directed the jury that they could infer intention if there was a high degree of probability that the victim would be killed and if the defendants knew "quite well that in doing that there was a high degree of probability" that the victim would be killed. The defendants appealed on the ground that the trial judge was confusing foresight of death with an intention to kill and should have directed the jury in the Nedrick terms of "virtual certainty".

The Court of Appeal did not accept that the reference to "very high degree of probability" was a misdirection. However, Lloyd LJ stated that in the rare cases where an expanded direction is required in terms of foresight, courts should continue to use virtual certainty as the test, rather than high probability.

R v Scalley [1995] Crim LR 504.

The defendant was alleged to have murdered a 5 year old boy by setting fire to a house in which the defendant had once lived. The defendant was convicted of murder following the trial judge's direction to the jury to the effect thy could convict if they were sure that the defendant intended death or grievous bodily harm in the sense that he foresaw either consequence as virtually certain to result from his actions.

The Court of Appeal quashed the conviction and substituted a conviction for manslaughter. The direction did not make it clear that foresight of the virtual certainty of death or serious injury is not intention but merely evidence from which the jury are entitled to infer intention. The jury should have been told that if they were satisfied that the defendant did see either death or serious injury as virtually certain, then they could go on to infer intention but were not obliged to do so.


R v Cunningham [1957] 2 QB 396.

The defendant had broken a gas meter to steal the money in it with the result that gas escaped into the next-door house. The victim became ill and her life was endangered. The defendant was charged under s23 of the Offences Against the Person Act 1861 with "maliciously administering a noxious thing so as to endanger life". The Court of Appeal, allowing the defendant's appeal held that for a defendant to have acted "maliciously" there had to be proof that he intended to cause the harm in question, or had been reckless as to whether such harm would be caused. In this context recklessness involved the defendant in being aware of the risk that his actions might cause the prohibited consequence.

MPC v Caldwell [1982] AC 341.

The defendant, who had been sacked from his employment at an hotel, became drunk and returned at night to the hotel, setting it on fire. There were ten people resident in the hotel at the time, but the fire was discovered and extinguished before any serious harm could be caused. The defendant pleaded guilty to criminal damage but pleaded not guilty to the more serious charge of criminal damage with intent to endanger life or recklessness as to whether life would be endangered. he argued that due to his drunken state it had never crossed his mind that lives might be endangered by his actions, he had simply set fire to the hotel because of his grudge against his former employer.

The House of Lords re-affirmed Cunningham as a form of recklessness in criminal law, but introduced an alternative form of recklessness based upon the defendant's failure to advert to a risk which would have been obvious to the reasonable person. Lord Diplock held that a defendant was reckless as to whether he damaged property if he created a risk of damage which would have been obvious to the reasonable man and either -

* had not given any thought to the possibility of such a risk when he carried out the act in question, or
* had recognised that there was some risk involved and nonetheless went on to carry it out.

Elliot v C [1983] 1 WLR 939.

The defendant, an educationally subnormal 14-year-old schoolgirl, had entered a neighbour's garden shed, poured white spirit on the floor and ignited it. The defendant then fled as the shed burst into flames. The magistrates dismissed the charge of criminal damage on the basis that she gave no thought to the risk of damage, and that even if she had, she would not have been capable of appreciating it. The prosecution appealed and the Divisional Court, allowing the appeal, held that this was irrelevant to the issue of recklessness. When the court in Caldwell had talked about an "obvious" risk, they had meant obvious to the reasonable man if he had thought about it, and not obvious to the defendant if he had thought about it.

R v Coles [1994] Crim LR 820.

The defendant, aged 15 at the time of the offence and of lower than average mental capacity, had been playing in a hay barn with other children. The evidence was that he had tried to set fire to the hay whilst other children were in the barn. The children escaped unhurt. The defendant was charged with arson, being reckless as to whether the lives of others would be endangered. During the trial it was submitted that the Caldwell direction should be amended so that the assessment of whether or not the appellant had, by his actions, created an obvious risk of harm, should be made more subjective. The trial judge rejected this submission stating that the test was whether or not the risk would have been obvious to the reasonable prudent adult person.

The Court of Appeal dismissed the defendant's appeal. It was held that the first limb of the Caldwell direction was objective and the state of mind of the accused was irrelevant to the question of whether or not he had, by his act or omission, created an obvious risk of harm to persons or property. On appeal, the argument put forward on behalf of the appellant had been broadened to encompass the proposition that the second limb of the Caldwell test should have some regard to the defendant's capacity to foresee risk. The appeal court took the view that such an argument had failed in Elliot v C [1983] 1 WLR 939 and that that decision had been confirmed by the Court of Appeal in R v R (Stephen Malcolm) (1984) 79 Cr App R 334. It was not predisposed to depart from its own previous decision.

Chief Constable of Avon and Somerset v Shimmen (1987) 84 Cr App R 7.

The defendant was a martial arts expert who was demonstrating his skill to friends by performing a move which he anticipated would bring his foot within inches of a shop window. He had miscalculated the risk, and he broke the window. The argument that he was not reckless because he had given thought to the risk but mistakenly believed that he had minimised it, was rejected by the Divisional Court because he knew there was some risk. The defendant was found guilty of causing criminal damage.

R v Merrick [1996] 1 Cr App R 130.

The defendant visited householders and offered to remove certain old cable TV cabling if they were not being paid wayleave payments by the owner of the cables with whom he had fallen out. When the defendant removed the cable he inevitably damaged it. He also inevitably left a live cable exposed for a short time until he could make it safe (about six minutes). He was charged with intentionally damaging property being reckless as to whether life was endangered thereby. At his trial, he argued that he knew that it would have been dangerous to leave the cable exposed, that he had come with materials to make it safe and that he did not believe that there was any risk of endangering life whilst he was doing so. The judge ruled that precautions to eliminate the risk of endangering life must be taken before the damage was caused.

On appeal the defendant argued that he was not reckless since he fell within the lacuna as having thought about it and decided that there was no risk. The Court of Appeal dismissed the appeal and held that there is a difference between (a) avoiding a risk and (b) taking steps to remedy one which has already been created. The defendant could only have succeeded if he had done or believed he had done the former rather than the latter.

R v Lawrence [1981] AC 510.

The defendant motor cyclist, who had collided with and killed a pedestrian, was charged with causing death by reckless driving. The House of Lords held that the test of recklessness was the same for reckless driving as for criminal damage, but used the words, based on an "obvious and serious risk" (as opposed to an "obvious risk" in Caldwell).

R v Seymour [1983] 2 AC 493.

The defendant had an argument with his common law wife. In an effort to move her car out of his way by pushing it with his truck, he had jammed her body between his truck and her car, as a result of which she sustained severe injuries from which she later died. The prosecution brought a charge of common law manslaughter and the defendant was convicted. The trial judge had directed the jury that they should convict if they were satisfied that the defendant had caused the death, and had been reckless in so doing, recklessness here having the meaning attributed to it by the House of Lords in Lawrence. The House of Lords held that the conviction should stand. Thus Caldwell recklessness applied to manslaughter.

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