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Indirect intention (sometimes known as oblique intention) is less straightforward. It applies where the accused did not desire a particular result but in acting as he or she did, realised that it might occur. For example, a mother wishes to frighten her children and so starts a fire in the house. She does not want to kill her children, but she realises that there is a risk that they may die as a result of the fire. The courts are now quite clear that oblique intention can be sufficient for murder: people can intend deaths that they do not necessarily want. But in a line of important cases, they have tried to specify the necessary degree of foresight required in order to provide evidence of intention.

In R v Moloney (1985) the defendant was a soldier who was on leave at the time of the inci- dent that gave rise to his prosecution. He was staying with his mother and stepfather, with whom he was apparently on very good terms. The family held a dinner party, during which the appellant and his stepfather drank rather a lot of alcohol. They stayed up after everyone else had left or gone to bed; shortly after 4.00 am a shot was fired and the appellant was heard to say, ‘I have shot my father’.

The court was told that Moloney and his stepfather had had a contest to see who could load his gun and be ready to fire first. Moloney had been quicker, and stood pointing the gun at his step- father, who teased him that he would not dare to fire a live bullet; at that point Moloney, by his own admission, pulled the trigger. In evidence he said, ‘I never conceived that what I was doing might cause injury to anybody. It was just a lark.’ Clearly he did not want to kill his stepfather, but could he be said to have intended to do so? Lord Bridge pointed out that it was quite possible to intend a result which you do not actually want. He gave the example of a man who, in an attempt to escape pursuit, boards a plane to Manchester. Even though he may have no desire to go to Manchester – he may even hate the place for some reason – that is clearly where he intends to go.

Foresight is merely evidence of intention

Moloney established that a person can have intention where they did not want the result but

merely foresaw it, yet the courts are not saying that foresight is intention. Foresight is merely evi- dence from which intention can be found.

Before Moloney, in the case of Hyam v DPP (1975), it had looked as though foresight was actually intention, though the judgment in that case was not very clear. The defendant, Pearl Hyam, put blazing newspaper through the letterbox of the house of a Mrs Booth, who was going on holiday with Pearl Hyam’s boyfriend; Mrs Booth’s two children were killed in the fire. On the facts it appeared that Pearl Hyam did not want to kill the two children; she wanted to set fire to the house and to frighten Mrs Booth. The court held that she must have foreseen that death or grievous bodily harm were highly likely to result from her conduct, and that this was sufficient

mens rea for murder. In Moloney, the House of Lords held that Hyam had been wrongly decided,

and that nothing less than intention to kill or cause grievous bodily harm would constitute malice aforethought: merely foreseeing the victim’s death as probable was not intention, though it could be evidence of it.

Lord Bridge suggested that juries might be asked to consider two questions: was death or really serious injury a ‘natural consequence’ of the defendant’s act, and did the defendant foresee that one or the other was a natural consequence of their act? If the answer was ‘Yes’ the jury might infer from this evidence that the death was intended.

This guidance for juries in turn proved to be problematic. In R v Hancock and Shankland (1986), the defendants were striking miners who knew that a taxi, carrying men breaking the strike to work, would pass along a particular road. They waited on a bridge above it, and dropped a concrete block which hit the taxi as it passed underneath, killing the driver. At their trial the judge had given the direction suggested by Lord Bridge in Moloney and they were convicted of murder. On appeal, the House of Lords held that this had been incorrect, and a verdict of manslaughter was substituted. Their Lordships agreed with Lord Bridge that conviction for murder could result only from proof of intention, and that foresight of consequences was not in itself intention; but they were concerned that the question of whether the death was a ‘natural consequence’ of the defendants’ act might suggest to juries that they need not consider the degree of probability. The fact that there might be a ten-million-to-one chance that death would result from the defendants’ act might still mean that death was a natural consequence of it, in the sense that it had happened

without any interference, but, with this degree of likelihood, there would seem to be little evidence of intention.

Lord Scarman suggested that the jury should be directed that: ‘. . . the greater the probability of a consequence, the more likely it is that the consequence was foreseen and that if that conse- quence was foreseen the greater the probability is that that consequence was also intended . . . But juries also need to be reminded that the decision is theirs to be reached upon a consideration of all the evidence.’

Thus if a person stabs another in the chest, it is highly likely this will lead to death or grievous bodily harm, and since most people would be well aware of that, it is likely that they would foresee death or serious injury when they acted. If they did foresee this then that is evidence of intention, from which a jury might conclude that the death was intended. But if you cut someone’s finger, that person could die as a result – from blood poisoning for example – but since this is highly unlikely, the chances are that you would not have foreseen that they might die when you cut the finger, and your lack of foresight would be evidence that you did not intend the death.

The concept of indirect intention was clarified in R v Nedrick (1986) which established what has become known as the ‘virtual certainty’ test. The defendant had a grudge against a woman, and poured paraffin through the letterbox of her house and set it alight. The woman’s child died in the fire. Lord Lane CJ said:

Where the charge is murder and in the rare cases where the simple direction 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.

Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen . . . The decision is one for the jury to be reached on a consideration of all the evidence.

In other words, Lord Lane considered that even if death or grievous bodily harm is not the defendant’s aim or wish, the jury may infer intention if they decide that death or grievous bodily harm were virtually certain to result from what the defendant did, and the defendant foresaw that that was the case. Such foresight was still only evidence from which they might infer intent, and not intent itself, although it would be difficult not to infer intent where the defendant foresaw that death or grievous bodily harm was practically inevitable as a result of his or her acts.

R v Nedrick (1986)

Key Case

Legal Principle

A jury is entitled to conclude that a defendant intended something if it was virtually certain to happen

and the defendant realised this.

The virtual certainty test in Nedrick became the key test on indirect intention. Then confusion was thrown into this area of the law by the Court of Appeal judgment in R v Woollin in 1998. Having given various explanations for his three-month-old son’s injuries in the ambulance and in the first two police interviews, Woollin eventually admitted that he had ‘lost his cool’ when his son

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had choked on his food. He had picked him up, shaken him and thrown him across the room with considerable force towards a pram standing next to a wall about five feet away. He stated that he had not intended or thought that he would kill the child and had not wanted the child to die. The judge directed the jury that it was open to them to convict Woollin of murder if satisfied that he was aware there was a ‘substantial risk’ he would cause serious injury. On appeal the defence argued that the judge had misdirected the jury by using the term ‘a substantial risk’ which was the test for recklessness and failing to use the phrase ‘virtual certainty’ derived from Nedrick for indirect intention. The appeal was rejected by the Court of Appeal which held that in directing a jury a judge was obliged to use the phrase ‘virtual certainty’ if the only evidence of intention was the actions of the accused constituting the actus reus of the offence and their consequences on the victim. Where other evidence was available, the judge was neither obliged to use that phrase, nor a phrase that meant the same thing. The Court of Appeal felt that otherwise the jury function as laid down in s. 8 of the Criminal Justice Act 1967 would be undermined. This section (discussed at p. 32) states:

A court or jury in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Thus Parliament had recognised in that provision that a court or jury could infer that a defendant intended a result of their actions by reason of its being a natural and probable result of those actions. In deciding whether the defendant intended the natural and probable result of their actions, s. 8 stated that the court or jury was to take into account all the evidence, drawing such inferences as appeared proper. Section 8 contained no restrictive provision about the result being a ‘virtual certainty’. The facts of Woollin fell within the category of cases where there was more evidence of intention than purely the conduct of the defendant constituting the actus reus of the offence and the result of the conduct, for in addition there was the conduct of the defendant in the first two interviews and his description of events to the ambulance controller.

A further appeal was made in the Woollin case to the House of Lords. This ruled that the Court of Appeal and the trial judge had been mistaken. It said that the Nedrick direction was always required in the context of indirect intention. Otherwise there would be no clear distinction between intention and recklessness as both would be concerned simply with the foresight of a risk. The Nedrick direction distinguishes the two concepts by stating that intention will only exist when the risk is foreseen as a virtual certainty. Accordingly, a conviction for manslaughter was substituted.

Thus the Nedrick ‘virtual certainty’ direction was approved, though two amendments were made to it. First, the original Nedrick direction told the jury that ‘they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty’. The House of Lords substituted the word ‘find’ for the word ‘infer’. This change was to deal with the criticism that the jury were told in the past that they could ‘infer’ intention from the existence of the foresight and this suggested that intention was something different from the foresight itself, but did not specify what it was. But the difficulties are not completely resolved by the change from ‘infer’ to ‘find’ as the jury are

Woollin (1998)

Key Case

Despite the House of Lords’ amendments to the Nedrick direction, in R v Matthews and

Alleyne the Court of Appeal still stated that a finding of indirect intention was ‘irresistible’ on the

facts of the case. An 18-year-old A-level student had been robbed and then thrown over a bridge. He had told his attackers that he did not know how to swim and he drowned. The two appellants appealed against their conviction for murder on the basis that the jury had been misdirected on the law of intent. The guidance on indirect intention had been presented as a rule of law (the jury was told they must find intention when foresight as a virtual certainty was established) rather than as a rule of evidence (the jury should have been told that they were entitled to find intention where foresight as a virtual certainty was established). The Court of Appeal stated ‘there is very little to choose between a rule of evidence and one of substantive law’ and that on the facts a finding of intention was ‘irresistible’.

still only ‘entitled’ to make this finding, and it is still a question of evidence for the jury – it is not clear when this finding should be made. It might be more logical to oblige a jury to conclude that there is intention where a person foresaw a result as a virtual certainty. The change of wording from ‘infer’ to ‘find’ was expressly followed by the Court of Appeal in R v Matthews and Alleyne (2003).

The second amendment was that the majority of the House of Lords felt that the first sentence of the second paragraph of Lord Lane’s statement in Nedrick quoted above (‘Where a man realises . . .’) did not form part of the model direction. So the jury will not normally be pressurised into finding inten- tion by being told that a finding of intention ‘may be irresistible’. Thus the model direction now reads as follows:

Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are 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. The decision is one for the jury to be reached on a consideration of all the evidence.

The House of Lords wanted less pressure to be put on the jury to find intention.

Legal Principle

A jury is entitled to find intention when the defendant foresaw a result as virtually certain.

It is also slightly puzzling that in the high-profile case of Re A (Children) (2000), concerning the legality of an operation to separate Siamese twins, the Court of Appeal included as part of the direction on intention that should be given to a jury the statement from Nedrick which the major- ity of the House of Lords had said no longer formed part of the model direction. The decision of the Court of Appeal had to be given under significant time constraints due to the urgent need to carry out the operation and, with due respect, it is suggested that this part of the Court of Appeal judgment is misleading.

It is wrong to give a Woollin/Nedrick direction if the prosecution case is that the defendant’s purpose was to achieve the relevant result. In R v MD (2004) the defendant was the victim’s mother. The prosecution alleged that over a number of years she had pretended that her children suffered from serious illnesses in order to attract attention and sympathy. On the day her younger child died, she had dangerously administered medication through a tube. She was initially pro- secuted for murder, but as the prosecution could not prove that her actions caused the death, this was changed to attempted murder and the jury were given a direction on intention in accordance with Woollin. This was found to be a misdirection because on the facts of the case, the pro- secution were arguing that she had direct not indirect intention – that the purpose of her actions was to kill.