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R v Woollin  AC 82
Murder is a common law offence. The actus reus elements are an act or omission resulting in the unlawful killing of a reasonable person under the Queen’s peace, and the two alternative mens rea elements are either an intention to kill or an intention to cause grievous bodily harm (GBH) 1. Whilst the actus reas elements are normally easy to establish, there has been much debate over the mens rea elements – specifically the meaning of intention2. On occasions where a defendant argues that killing or causing GBH was not his main intention and he therefore does not fulfil the mens rea requirements for murder, the courts must consider the surrounding case law concerning indirect or oblique intention3.
In R v Moloney4, the court directed that a defendant who foresaw death or serious injury as ‘natural consequences’ had oblique intention, yet in Hancock v Shankland5 it was held that a jury should consider the ‘probability of a consequence’ when establishing if a defendant had intent. Furthermore, it was held in R v Nedrick6 that the court should consider two questions; did the jury consider that death or serious injury was virtually certain to occur as a result of the defendants actions, and did the defendant foresee the death or injury as virtually certain? If the jury answered ‘yes’ to both these questions, there would be enough evidence from which intention could be inferred7.
These decisions left the legal meaning of intention and the correct approach to giving directions to a jury unclear8, however the position was clarified in R v Woollin9.
The facts of Woollin10 comprised of the defendant throwing his three month old baby to the ground in frustration when it would not stop crying, leading to the baby dying from a fractured skull. The court accepted that the defendant did not intend to cause death or harm to the child but that the defendant foresaw there was a risk of causing serious harm to the baby as a result of his actions.
The original trial judge directed the jury that oblique intention exists if there is ‘an appreciation of a substantial risk of injury’, which resulted in the jury deciding that exposing somebody to a risk of harm was sufficient to amount to intention11. The case was referred to the Court of Appeal and then the House of Lords to consider whether this was the correct way to define intention.
The Court of Appeal upheld the murder conviction; however upon appeal, the House of Lords overturned the conviction for murder and substituted it for manslaughter, holding that the original trial judge had enlarged the mens rea element for murder by introducing the question of whether the defendant foresaw a substantial risk12. The term ‘substantial risk’ blurred the lines between intention and recklessness, and as recklessness is not a state of mind sufficient to convict a defendant of murder it is important to keep them distinct13. The House of Lords confirmed that the ‘virtual certainty’ test introduced in Nedrick14 should instead be used when considering oblique intention15.
However the House of Lords also amended one word in the Nedrick test; rather than intention being inferred by a positive answer to the two questions, it only allows the jury to find intention16. This has been presumed to mean that whilst a jury are able to find that the defendant had intention, they are not obliged to find that the defendant actually acted with intent when the offence was committed17. It has been suggested that this is to allow juries some ‘moral elbow-room’ when considering complex cases18; however Ashworth19 argues that, for serious offences such as murder, the courts should be aiming to introduce a tighter definition for intention, and allowing the more complex cases to be dealt with by way of defences or partial defences.
It has been said that the direction in Woollin20 does not provide a definition of intention and the law still remains slightly unclear21. In Matthews and Elleyne22, Rix LJ stated, ‘we do not regard Woollin as yet reaching or laying down a substantive rule of law’23. The ruling has also been criticised by Kaveny24, who believes the difficulties in establishing a defendant’s foresight means that the jury should instead be focusing on the defendant’s purpose when carrying out the action.
Woollin25 was recently followed in Smith v Criminal Injuries Compensation Authority26, in which a cyclist who had been riding dangerously fast through a busy pedestrian area argued that it wasn’t his intention to injure the victim. The court held that the defendant foresaw it was a ‘virtual certainty’ that a pedestrian would be injured; he had saw pedestrians using a crossing, but rather than stopping at the red light he sped up and this amounted to oblique intention. Similarly, in R v Royle27 the defendant attempted to argue his intention was to steal a handbag rather than cause death or injury to the victim, however the court held that by stamping on the elderly victims head it was a ‘virtual certainty’ that serious harm would be caused.
However in R v Hales28, the court gave different direction to that established in Woollin, instead suggesting that the jury should consider the defendant’s actions before, at the time of, and after the alleged offence. There was no need to establish foresight because a jury could infer from the defendant deliberately reversing into the officer that there was clearly evidence he intended to kill29.This has been distinguished from Woollin on the basis that the defendant had previous admitted that, although it was not his motive to kill the officer, he was ‘prepared to kill in order to escape’30.
Despite the criticisms discussed above, it is clear that Woollin31 remains the leading precedent used when the courts and juries are considering oblique intention; Norrie32 states that that ‘Woollin constitutes the last word on the indirect intention for murder’.
1Coke, 3 Inst 47
2Michael J. Allen, Textbook on Criminal Law (13th Edition, Oxford 2015)
3Andrew Ashworth & Jeremy Horder, Principles of Criminal Law (7th Edition, Oxford 2013)
4 AC 905
5 1 AC 445
6 1 WLR 1025
8Andrew Ashworth & Jeremy Horder, Principles of Criminal Law (7th Edition, Oxford 2013)
9 1 AC 82
11Michael J. Allen, Textbook on Criminal Law (13th Edition, Oxford 2015)
12R v Woollin  1 AC 82
14R v Nedrick  1 WLR 1025
15R v Woollin  1 AC 82
17Gerard Coffey, Codifying the Meaning of ‘Intention’ in the Criminal Law  J.Crim L. 394
18Andrew Ashworth, Principles, Pragmatism and the Law Commission’s Recommendations on Homicide Law Reform  Crim. L.R. 333
20R v Woollin  1 AC 82
21Michael J. Allen, Textbook on Criminal Law (13th Edition, Oxford 2015)
22 EWCA Crim 192
23Matthews and Elleyne  EWCA Crim 192, para 43
24M. Cathleen Kaveny, Inferring Intention from Foresight  L.Q.R. 81
25R v Woollin  1 AC 82
26Unreported, March 24, 2015
27 EWCA Crim 1461
28 EWCA Crim 1118
30Jonathan Herring, Criminal Law – Text, Cases and Materials (6th Edition, Oxford, 2014)
31R v Woollin  1 AC 82
32Alan W. Norrie, After Woollin  Crim L.R. 532
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