Worksheet 1 ( Murder)

Rance v Mid-Downs Health Authority (1991) 1 All E.R. 801, 817

Facts
The plaintiffs were the parents of a child born with severe spina bifida and hydrocephalus. After
the birth they learned that an ultrasound scan performed on the child's mother during her
pregnancy had given rise to a suspicion of spinal abnormality in the unborn child. They alleged
that the defendants, a health authority and a doctor, had been negligent in failing to diagnose the
child's handicap when a foetus of about 26 weeks and that but for their negligence the mother
would have had an abortion under the provisions of section 1(1)(b) of the Abortion Act 1967.1
They claimed damages for the mother's pain and suffering and for the cost of raising and caring
for the child. The defendants denied negligence and contended that at the material time the child
was capable of being born alive so that any termination would have been unlawful under section
1 of the Infant Life (Preservation) Act 1929.2

Held
dismissing the action, (1) that before the enactment of section 1 of the Infant Life (Preservation)
Act 1929, the common law did not protect a child at the time of birth; that the intention of
Parliament in section 1 was to protect a child capable of being born alive if it could breathe and
live by reason of its own breathing without deriving any of its living or power of living by or
through any connection with its mother; that a "viable" foetus in section 5(1) of the Abortion Act
1967 had the same meaning and, therefore, under that provision an abortion could not be
lawfully carried out if section 1 of the Act of 1929 applied (post, pp. 620A, E,621A-B, 622A

2) That at 26 to 27 weeks gestation the plaintiffs' child had been capable of being born alive
within the meaning of section 1 of the Act of 1929 and, therefore, although the evidence showed
clearly that there were responsible medical practitioners at hospitals other than the defendants'
who would have been willing to carry out an abortion in the circumstances, such an abortion
would have been illegal and, therefore, the plaintiffs' claim that they had lost the opportunity of
having the foetus aborted failed; and that, in any event, the plaintiffs had no tproved that the
defendants had been negligent .

Per curiam. (i) There would have been no grounds on which the plaintiffs' child could have
lawfully been deprived of the chance to live, whatever his parents' wishes, even if the necessary
treatment involved operative treatment (post, p. 617A).
(ii) Once the court was satisfied that the plaintiffs could only have turned their lost opportunity to
value by termination of the life of a child, who, on the balance of probabilities, was capable of
being born alive, it would be the duty of the court on policy grounds to deny them relief 
R v Poulton (1832) 5 C & P 329

Facts
The defendant strangled her baby to death. The issue was when a foetus is a ‘human being’ for
the purposes of murder and manslaughter.

Held
The foetus must be killed after fully expelled from the mother’s body if a murder or
manslaughter conviction is to be possible. Since there was no evidence that this had been the
case, the mother was not guilty. According to Littledale J, ‘With respect to the birth, the being
born must mean that the whole body is brought into the world; and it is not sufficient that the
child respires in the progress of the birth. Whether the child was born alive or not depends
mainly upon the evidence of the medical men. None of them say that the child was born alive;
they only say that it had breathed: and if there is all this uncertainty among these medical men,
perhaps you would think it too much for you to say that you are satisfied that the child was born
alive.’

Key principle
It appears that a ‘human being’ must be born alive and fully expelled from the mother for a
murder or manslaughter conviction to stand.

Attorney General’s Reference (No. 3 of 1994) (1997) 3 All ER 936

Facts
The respondent stabbed his girlfriend in the stomach knowing at the time that she was pregnant.
The wound penetrated the uterus and the abdomen of the foetus but when the girlfriend was
admitted to hospital it was not realised that the foetus had been injured and treatment was limited
to care of her wounds. She made a good recovery and was discharged from hospital but three
weeks later, as a result of her wounds, she gave premature birth to a baby daughter at 26 weeks
gestation. It then became apparent that the foetus had been injured by the stab wound. The baby
had a 50% chance of survival and did so for 121 days under intensive care but then died. The
stab wound made no direct contribution to her death, the cause of death being the premature birth
and the complications associated with that. Prior to the attack by the respondent the girlfriend’s
pregnancy had been uneventful and there was nothing in her history to suggest that she would
not proceed to full term.
The Attorney General referred to the Court of Appeal the questions (i) whether, subject to proof
of the requisite intent, the deliberate infliction of injury to a child in utero or to its mother could
amount to murder or manslaughter where the child was born alive but subsequently died either
wholly or partly as a result of the injuries inflicted on it or its mother while it was in utero, and
(ii) whether the fact that the death of the child resulted solely from the injury to the mother rather
than direct injury to the foetus negatived liability for murder or manslaughter of the child. The
Court of Appeal answered the first question in the affirmative and the second in the negative but
referred both to the House of Lords.

Held
Overturning the CA decision, the HL held that  that an intention to kill or cause serious injury to
a pregnant woman could not be transferred from the mother to the foetus . Conviction would
require ‘a double “transfer” of intent: first from the mother to the foetus and then from the foetus
to the child as yet unborn’ and that was impermissible. Murder would only be possible if (a) D
intended to kill or cause serious harm to the foetus itself or the child it would become after birth,
and (b) the foetus was born alive and died subsequently as a result of the injuries inflicted by D
on the foetus and/ or the mother.
Key principle
It is not possible to transfer malice from a pregnant woman to the foetus.
.

R v Dyson (1908) 2 K.B. 454

Facts
D killed his baby son; he threw him down, and beat him until the child was unconscious,
fracturing his skull. The child died some months later from that injury.
 
Held: Lord Alverstone
"... the proper question ... was whether the prisoner accelerated the child's death by the injuries
which he inflicted ... the fact that the child was already suffering from meningitis from which it
would in any event have died before long would afford no answer."
 Guilty

R v Adams (1957) Crim. L.R. 365

Facts
The defendant, John Bodkin Adams, was a doctor who was charged with murder by "easing the
passing" of elderly patients by giving drugs calculated to hasten their deaths (one had left a
bequest - including a Rolls-Royce - to him in her will).

Held
It was said that a doctor has no special defence, but "he is entitled to do all that is proper and
necessary to relieve pain even if the measures he takes may incidentally shorten life" (i.e. as a
secondary intention). On these grounds, the defendant was acquitted. This case was the first to
formulate a "double effect" in respect of the "mens rea" of murder. Liability for murder can be
avoided if medicine which is beneficial to the patient is given, despite the knowledge that death
will occur as a side effect.

R v White (1910) 2 K.B. 124; 22 Cox C.C. 325

Facts
The defendant put some poison in his mother's milk with the intention of killing her. The mother
took a few sips and went to sleep and never woke up. Medical reports revealed that she died
from a heart attack and not the poison.

Held

 The defendant was not liable for her murder as his act of poisoning the milk was not the cause
of death. He was liable for attempt.

This case established the 'but for' test. I.e would the result have occurred but for the actions of
the defendant? If the answer is yes the defendant is not liable.

R v Jordan (1956) 40 Cr. App. Rep. 152

Facts

D stabbed P in the intestines twice, P was admitted quickly to hospital and the wound was
stitched. The wound was mainly healed when doctors decided to administer antibiotics to prevent
infection. Sadly P was allergic to the antibiotic used and died after two doctors had given him it.
There were also other medical errors in the case.
 Held
Death resulting from any normal medical treatment for a criminally-inflicted injury can be
regarded as caused by the injury. But this had not been normal treatment;  it had been ‘palpably
wrong’ in at least two separate ways. Hence the original attack could not be regarded as the
cause of death.

Key principle
Medical treatment which is ‘palpably wrong’ may break the chain of causation from an original
attack.

R v Smith (1959) 2 Q.B. 35; (1959) 2 All E.R. 193; (1959) 2 W.L.R. 623; 43 Cr.
App. Rep. 121

Facts

P, a soldier, had been stabbed twice with a bayonet. One wound was more serious than anyone
realised. A series of errors and accidents led to his death; another soldier tripped and dropped
him twice while carrying him off for medical treatment, and since the seriousness of P’s
condition had not been realised, on reaching the medical centre he joined the end of a long
queue. He was then given medical treatment described by the court as ‘thoroughly bad’. If he had
been treated promptly and correctly then his chances of recovery might have been as high as
75%.

Held
Death resulted from the original wound. According to Lord Parker CJ, ‘if at the time of death the
original wound is still an operating cause and a substantial cause, then the death can properly be
said to be the result of the wound, albeit that some other cause of death is also operating. Only if
it can be said that the original wounding is merely the setting in which another cause operates
can it be said that the death does not result from the wound. Putting it in another way, only if the
second cause is so overwhelming as to make the original wound merely part of the history can it
be said that the death does not flow from the wound. . . .’
Key principle
D’s act must be the operative and substantial cause of a death for him to be liable for that death.
Bad medical treatment will not necessarily break a chain of causation.

R v Blaue (1975) 1 W.L.R. 1411; (1975) 3 All E.R. 446; 61 Cr. App. Rep.

269
Facts
D stabbed P repeatedly, piercing her lung. P refused a blood transfusion because she was a
Jehovah’s Witness and died. Medical evidence established that she would have lived had she had
the transfusion. D appealed against his conviction for manslaughter, claiming he had not caused
P’s death, and that P’s decision to refuse the transfusion had been unreasonable.
Held
The stab wound had caused the death, not the girl’s beliefs. According to Lawton LJ, ‘It has long
been the policy of the law that those who use violence on other people must take their victims as
they find them. This in our judgment means the whole man, not just the physical man. It does not
lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited him
from accepting certain kinds of treatment were unreasonable. The question for decision is what
caused her death. The answer is the stab wound. The fact that the victim refused to stop this end
coming about did not break the causal connection between the act and death.’
Key principle
D must take his victim as he finds him, including his beliefs.

R v Cheshire (1991) 3 All E.R. 670

Facts
D shot P in the leg and stomach, seriously wounding him, after an argument at the ‘Ozone’ fish
and chip shop in Greenwich. P developed breathing difficulties and a tracheotomy tube had to be
inserted in his windpipe. It was in place for four weeks. Some two months after the shooting, P
died whilst still in hospital because his windpipe became obstructed due to a constriction where
the tracheotomy had been performed. This was a rare but not unknown complication. There was
medical evidence that the initial wounds were no longer life-threatening and that death was due
to a negligent failure of the hospital staff to diagnose and treat the problem caused by the
tracheotomy.
Held
According to Beldam LJ, ‘[W]hat we think does emerge from . . . the . . . cases is that when the
victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff
attempting to repair the harm done, it will only be in the most extraordinary and unusual case
that such treatment can be said to be so independent of the acts of the accused that it could be
regarded in law as the cause of the victim’s death to the exclusion of the accused’s acts.’ Medical
negligence may not prevent the original attacker bearing criminal responsibility for the death.
Key principle
‘Even though negligence in the treatment of the victim was the immediate cause of his death, the
jury should not regard it as excluding the responsibility of the accused unless the negligent
treatment was so independent of his acts, and in itself so potent in causing death, that they regard
the contribution made by his acts as insignificant.’

AIREDALE NATIONAL HEALTH SERVICE TRUST v BLAND [1993] 1 All

ER 821 (HL)

Facts
As a result of a crush at the Hillsborough football stadium, B suffered irreversible brain damage
and was left in a persistent vegetative state with no hope of recovery of any functions at the
conscious level. The hospital authority with the support of B’s parents sought a declaration that it
was lawful for its doctors to discontinue life-sustaining treatment and feeding through a nasal
tube, without which B, as subsequently happened would die within a matter of days.
Held
The House of Lords unanimously confirmed the grant of the declaration sought but recognised
that this civil decision would not be binding on a criminal court. A doctor’s decision to
discontinue methods of life support could properly be categorised as an omission, and was in the
best interests of the patient. According to Lord Mustill, ‘Now that the time has come when
Anthony Bland has no further interest in being kept alive, the necessity to do so, created by his
inability to make a choice, has gone; and the justification for the invasive care and treatment
together with the duty to provide it have also gone. Absent a duty, the omission to perform what
had previously been a duty will no longer be a breach of the criminal law.’
Key principle 
The doctor-patient relationship: discontinuing treatment is an omission and so, if no duty is
breached by doing so, then it will be unlawful.

R v Cato (1981) 73 Cr. App. R. 173

Facts
The appellant purchased some heroin took it to his home which he shared with Anthony Farmer
and two others. He invited them all to use the heroin. They each prepared their own solution and
then paired off to inject each other. Farmer prepared his own solution and the appellant injected
him. This was repeated during the night. The following day Farmer was found dead. The
appellant was convicted of manslaughter and administering a noxious thing under s.23 OAPA
1861. 
Held: Appeal was dismissed. Conviction for manslaughter upheld.

It was held that there had been an unlawful act of administering a noxious thing and that that act
had caused death. However, Lord Widgery went further:

Lord Widgery CJ:

"had it not been possible to rely on the charge under section 23 of the Offences against the
Person Act, we think that there would have been an unlawful act here and we think the unlawful
act would be described as injecting the deceased Farmer with a mixture of heroin and water
which at the time of the injection and for the purposes of the injection the accused had
unlawfully taken into his possession."

R v Williams (1992) 2 All E.R. 183 C.A.

Facts

The defendants picked up a hitchhiker on the way to Glastonbury festival. The hitchhiker jumped
out of the car when it was travelling at 30 mph, hit his head and died. The prosecution alleged
that the defendants were in the course of robbing him when he jumped out and thus their actions
amounted to constructive manslaughter. The trial judge directed the jury:

‘... what he was frightened of was robbery, that this was going to be taken from him by
force, and the measure of the force can be taken from his reaction to it. The prosecution
suggest that if he is prepared to get out of a moving car, then it was a very serious threat
involving him in the risk of, as he saw it, serious injury.’

The jury convicted and the defendant appealed

Held:

Conviction was quashed as there was an almost total lack of evidence as to the nature of the
threat. The prosecution invited the jury to infer the gravity of the threat from the action of the
deceased.On the issue of novus actus interveniens Stuart Smith LJ stated:

"The nature of the threat is of importance in considering both the foreseeability of harm to the
victim from the threat and the question whether the deceased’s conduct was proportionate to the
threat, that is to say that it was within the ambit of reasonableness and not so daft as to make it
his own voluntary act which amounted to a novus actus interveniens and consequently broke the
chain of causation. It should of course be borne in mind that a victim may in the agony of the
moment do the wrong thing."
 
R v Dear (1996) Crim LR 595

Facts
The defendant's daughter accused a man of sexually abusing her. The defendant went after man
and repeatedly slashed him with a Stanley knife. The victim received medical treatment but later
re-opened his wounds in what was thought to be a suicide and died two days after the initial
attack. The defendant argued the man's actions in opening the wounds amounted to a novus actus
inerveniens.

Held:
The defendant's conviction was upheld. The wound was still an operating and substantial cause
of death.

R v Corbett (1996) Crim. L.R. 594 CA

Facts
The appellant had been out drinking with a friend, Eric Bishop, a man of low intelligence and
suffering mental illness. They were both heavily intoxicated. Bishop accidentally urinated on the
appellant's foot. The appellant chased Bishop down the middle of a road and on catching him
punched him and head butted him. Another friend pulled the appellant off Bishop and held him
back. Bishop ran off, tripped and landed in the gutter of the road. He sat up but had his head
protruding into the road. He was then hit by a passing car which killed him. The jury convicted
him of constructive manslaughter. He appealed contending the chain of causation had been
broken.

Held:
Appeal dismissed. The chain of causation was not broken. The actions of Bishop were within the
foreseeable range of events particularly given the intoxicated state he was in at the time.

Re A (Conjoined Twins) (2000) 4 All E.R. 961

Facts
Mary and Jodie were conjoined twins joined at the pelvis. Jodie was the stronger of the two and
capable of living independently. However, Mary was weaker, she was described as having a
primitive brain and was completely dependent on Jodie for her survival. According to medical
evidence, if the twins were left as they were, Mary would eventually be too much of a strain on
Jodie and they would both die. If they operated to separate them, this would inevitably lead to
the death of Mary, but Jodie would have a strong chance of living an independent life. The
parents refused consent for the operation to separate them. The doctors applied to the court for a
declaration that it would be lawful and in the best interests of the children to operate. The High
court granted the declaration on the grounds that the operation would be akin to withdrawal of
support ie an omission rather than a positive act and also the death of Mary, although inevitable,
was not the primary purpose of the operation. The parents appealed to the Court of Appeal on the
grounds that the learned judge erred in holding that the operation was (i) in Mary's best interest,
(ii) that it was in Jodie's best interest, and (iii) that in any event it would be legal.

Held:

The appeal was dismissed. The operation could be lawfully carried out by the doctors.

LJ Robert Walker:

(i)            The feelings of the twins' parents are entitled to great respect, especially so far as they
are based on religious convictions. But as the matter has been referred to the court the court
cannot escape the responsibility of deciding the matter to the best of its judgment as to the twins'
best interests.
(ii) The judge erred in law in equating the proposed surgical operation with the discontinuance of
medical treatment (as by disconnecting a heart-lung machine). Therefore the Court of Appeal
must form its own view.
(iii) Mary has a right to life, under the common law of England (based as it is on Judeo-Christian
foundations) and under the European Convention on Human Rights. It would be unlawful to kill
Mary intentionally, that is to undertake an operation with the primary purpose of killing her.
(iv) But Jodie also has a right to life.
(v) Every human being's right to life carries with it, as an intrinsic part of it,
rights of bodily integrity and autonomy - the right to have one's own body
whole and intact and (on reaching an age of understanding) to take decisions about one's own
body.
(vi) By a rare and tragic mischance, Mary and Jodie have both been deprived of the bodily
integrity and autonomy which is their natural right. There is a strong presumption that an
operation to separate them would be in the best interests of each of them.
(vii) In this case the purpose of the operation would be to separate the twins and so give Jodie a
reasonably good prospect of a long and reasonably normal life. Mary's death would not be the
purpose of the operation, although it would be its inevitable consequence. The operation would
give her, even in death, bodily integrity as a human being. She would die, not because she was
intentionally killed, but because her own body cannot sustain her life. 
(viii) Continued life, whether long or short, would hold nothing for Mary except possible pain
and discomfort, if indeed she can feel anything at all.
(ix) The proposed operation would therefore be in the best interests of each of the twins. The
decision does not require the court to value one life above another.
(x) The proposed operation would not be unlawful. It would involve the positive act of invasive
surgery and Mary's death would be foreseen as an inevitable consequence of an operation which
is intended, and is necessary, to save Jodie's life. But Mary's death would not be the purpose or
intention of the surgery, and she would die because tragically her body, on its own, is not and
never has been viable.
I would therefore dismiss this appeal.

LJ Brooke:

If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like

these, there need be no room for the concern felt by Sir James Stephen that people would be too
ready to avail themselves of exceptions to the law which they might suppose to apply to their
cases (at the risk of other people's lives). Such an operation is, and is always likely to be, an
exceptionally rare event, and because the medical literature shows that it is an operation to be
avoided at all costs in the neonatal stage, there will be in practically every case the opportunity
for the doctors to place the relevant facts before a court for approval (or otherwise) before the
operation is attempted.

According to Sir James Stephen, there are three necessary requirements for the application of the
doctrine of necessity:

(i) the act is needed to avoid inevitable and irreparable evil;

(ii) no more should be done than is reasonably necessary for the purpose to be achieved;
(iii) the evil inflicted must not be disproportionate to the evil avoided.
Given that the principles of modern family law point irresistibly to the conclusion that the
interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three
of these requirements are satisfied in this case.
R v Cunningham (1957) 2 Q.B. 396

Facts
D stole the gas meter from the cellar of an unoccupied house owned by his future mother-in-law,
which was intended to be his home after the marriage. In so doing he wrenched the gas pipes
from the wall and gassed the next-door neighbour, whose life was endangered. He was convicted
of maliciously administering a noxious substance so as to endanger life under s.23 OAPA 1861.
The key issue was the meaning of ‘maliciously’.

Held
‘Maliciously’ in this context does not have its ordinary everyday meaning of ‘wickedly’; it
means ‘intentionally or recklessly.’ The form of recklessness in question is subjective, ie
foresight of consequences.
Key principle
A person is subjectively reckless when he foresees that the particular type of harm might occur
and yet goes on to take the risk of it.

R v Caldwell (1981) 1 All E.R. 96

Facts

D had been working for the owner of a hotel and, having a grievance against him, drunkenly set
fire to the hotel. The fire was put out before any serious damage was caused. At trial for arson
reckless as to endangering life he said that he had been so drunk that the thought that there might
be people at the hotel whose lives might be endangered by the fire had never crossed his mind. D
was convicted.

Held
A person might also be guilty of an offence of recklessness by being objectively reckless, ie
doing an act which creates an obvious risk of the relevant harm and at that time failing to give
any thought to the possibility of there being any such risk. Appeal dismissed.
Key principle
From 1981-2003, objective recklessness was applied to many offences, but the tide has turned
and now since G and R the Caldwell test for recklessness should no longer be followed.

R v G and R (2003) UKHL 50 (overruling Caldwell)

Facts
The 11 and 12 year old defendants were messing around in the early hours with some bundles of
old newspapers which they had found in the back yard of the Co-op store in Newport Pagnell.
They lit some of the newspapers and threw them on the concrete floor underneath a large plastic
wheelie bin. Adjacent was another similar bin which was next to the wall of the shop. The
accused left the yard with the papers still burning. The fire spread to the first bin, then to the
second and then to the guttering and fascia board on the overhanging eave. It penetrated the roof
space and set alight to the roof and adjoining buildings causing about £1m worth of damage. The
defendants were charged with damaging by fire ‘commercial premises . . .being reckless as to
whether such property would be damaged.’ The issue therefore turned on whether they were
reckless as to damaging thebuildings.  At the trial, it was accepted that the boys thought the fire
would extinguish itself on the concrete floor and that neither appreciated that it might spread to
the buildings. Nonetheless the boys were convicted and the Court of Appeal, basing itself on
Caldwell, affirmed the conviction because the boys gave no thought to a risk of damaging the
buildings which would have been obvious to any reasonable adult. The defendants appealed to
the House of Lords.
Held
The convictions were quashed. Recklessness for the purposes of the Criminal Damage Act 1971
is subjective; D must have foreseen the risk of the harm and gone on to take that risk. The
Caldwell direction was capable of leading to obvious unfairness, had been widely criticised by
academics judges and practitioners, and was a misinterpretation of the CDA 1971. According to
Lord Steyn, ‘The surest test of a new legal rule is not whether it satisfies a team of logicians but
how it performs in the real world. With the benefit of hindsight the verdict must be that the rule
laid down by the majority in Caldwell failed this test. It was severely criticized by academic
lawyers of distinction. It did not command respect among practitioners and judges. Jurors found
it difficult to understand: it also sometimes offended their sense of justice. Experience suggests
that in Caldwell the law took a wrong turn.’
Key principle
Caldwell recklessness no longer applies to criminal damage, and probably has no place in
English criminal law unless expressly adopted by Parliament in a statute.

Hyam v D.P.P. (1975) A.C. 55

Facts
D sought to frighten an occupant of a house by pouring petrol though the letterbox and then
igniting it, resulting in the death of two occupants by asphyxia.
 
Held:
Intention is to be distinguished from desire and foresight of probable consequences.
Lord Hailsham LC:
 ‘[A] man may desire to blow up an aircraft in flight in order to obtain insurance moneys. But if
any passengers are killed he is guilty of murder, as their death will be a moral certainty if he
carries out his intention.’
Therefore, intention is established
‘where the defendant knows that there is a serious risk that death or grievous bodily harm will
ensue from his acts, and commits those acts deliberately and without lawful excuse ... It does not
matter in those circumstances whether the defendant desires those consequences to ensue or not,
and in none of these cases does it matter that the act and the intention were aimed at a potential
victim other than the one who succumbed.’
 
‘A man may do an act with a number of intentions. If he does it deliberately and intentionally,
knowing when he does it that it is highly probable that grievous bodily harm will result ... [then]
whatever other intentions he may have had as well, he at least intended grievous bodily harm.’

R v Moloney (1985) A.C. 905

Facts
The defendant shot his step father killing him. Evidence was produced that the pair had a good
relationship. They had been celebrating the defendant's grandparents’ ruby wedding anniversary
and had consumed a quantity of alcohol. The rest of the family had retired to bed and the two
stayed up drinking. The defendant told his step father that he wanted to leave the army. The step
father was not happy at the news and berated the defendant. He told him he could load, draw and
shoot a gun quicker than him and told him to get the guns. The defendant returned with two guns
and took the challenge. The defendant was first to load and draw and the step father said, "I don't
think you have got the guts but if you have pull the trigger". The defendant pulled the trigger but
in his drunken state he did not believe the gun was aimed at the step father. The trial judge
directed on oblique intent and the jury convicted. The Court of Appeal dismissed the appeal and
the defendant appealed to the House of Lords.

Held

Lord Bridge:

"The golden rule should be that, when directing a jury on the mental element necessary in
a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is
meant by intent, and leave it to the jury's good sense to decide whether the accused acted
 with the necessary intent, unless the judge is convinced that, on the facts and having
regard to the way the case has been presented to the jury in evidence and argument, some
further explanation or elaboration is strictly necessary to avoid misunderstanding."

Lord Bridge also gave guidance on the approach for the test on oblique intent:

"In the rare cases in which it is necessary to direct a jury 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 consequence must be proved to have been intended in any other case) a natural
consequence of the defendant's voluntary act? Secondly, 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 that
consequence."
 

R v Hancock & Shankland (1986) A.C. 455

Facts
The defendants were miners who had been pushing concrete blocks from a bridge during the 80's
miner strikes, to try andscare other workers from continuing to go to work. One of the slabs was
thrown towards a taxi carrying the victims, but the slab hit the taxi and killed the miner and the
taxi driver. The defendants did not desire to kill the taxi driver, but they were still convicted of
manslaughter using the jury directions formulated in Maloney.

Held
On appeal to the House of Lords, Lord Scarman said: "In a murder case where it is necessary to
direct a jury on the issue of intent by reference to foresight of consequences the probability of
death or serious injury resulting from the act done may be critically important. Its importance
will depend on the degree of probability. If the likelihood that death or serious injury will result
is high, the probability of that result may be seen as overwhelming evidence of the existence of
the intent to kill or injure".

In doing so, the test in Maloney was replaced by a test that meant that the more probable the
result would occur from the defendants actions, the more stronger the evidence that the
defendant intended his actions.
R v Nedrick (1986) 3 All E.R. 1

Facts
The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the
night poured paraffin through her letter box and set light to it. A child died in the fire. The trial
was held before the judgment was delivered in Moloney. The judge directed the jury as follows:
 
"If when the accused performed the act of setting fire to the house, he knew that it was
highly probable that the act would result in serious bodily injury to somebody inside the
house, even though he did not desire it - desire to bring that result about - he is guilty or
murder."

The jury convicted of murder and the defendant appealed on the grounds of a mis-direction. 

Held:

There was a clear misdirection. The Court of Appeal reviewed the cases
of Moloney  and Hancock & Shankland and formulated a new direction from the two decisions.

Lord Lane CJ:

"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."

R v Woolin (1998) 4 All E.R. 103

Facts
D, in anger and frustration, threw his three-month old son with considerable force causing fatal
brain injuries to the baby when his head hit something hard. The prosecution accepted that D did
not aim to kill or cause grievous bodily harm to his son but alleged murder on the basis that he
foresaw serious injury was virtually certain to result which would entitle the jury to conclude that
he intended serious bodily harm. The trial judge made a misdirection, referring to D foreseeing a
‘substantial risk’ of serious injury. D appealed  to the House of Lords against his conviction for
murder.

Held
The appeal was successful and a conviction for manslaughter was substituted. In most cases, a
simple direction on intention is enough, without referring to foresight. But, where direct intention
cannot be shown, a jury is not entitled to find 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.
Key principle
Where D foresaw death or serious injury to be virtually certain from his actions, the jury may
find that he had the necessary intention for murder.

 
R v Matthews and R v Alleyne (2003) 2 Cr. App. R. 30

Facts
The defendants attacked and kidnapped the victim and eventually took him to a bridge over the
River Ouse. They threw him off the bridge into the river below despite hearing the victim say
that he could not swim. The victim drowned. One issue which arose concerned the accuracy of
the trial judge’s direction on the requirements of Woollin non-purpose intention and this led the
Court of Appeal to review previous case law.
Held
The trial judge had gone further than the present law allowed in redrafting the Nedrick/Woollin
direction on virtual certainty, but on the facts there was an irresistible inference or finding of
intention to kill once the jury were sure that Ds appreciated the virtual certainty of V’s death
from their acts and had no intentions of saving him. Appeal dismissed.
Key principle 
Once convinced that D foresaw death or serious harm to be virtually certain from his actions, the
jury may convict of murder, but does not have to do so. However, in some cases, it will be
almost impossible to find that intention did not exist.