Criminal law / Mens rea
A man lost his temper, threw his three-month-old son on to a hard surface, and the child died. The House of Lords had to decide what a jury may find he intended when he said he never thought about the consequence at all. This page tells the case as a story, then follows intention and recklessness from 1957 to 2003.
Built by a law student, with the students who use it.
Woollin lost his temper and threw his three-month-old son on to a hard surface. His son sustained a fractured skull and died. The trial judge was the Recorder of Leeds.
The Crown did not allege that he desired to kill or seriously injure the child. His case was that he "never thought about the consequence at all when he threw the child".
The Recorder told the jury that if Woollin "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 convicted him of murder, and Woollin appealed. The question for the House of Lords was what a jury may find about a man's intention when he says he never thought about the consequence. Five Lords of Appeal heard the case, and the order was made on 25 June 1998.
Five Lords heard the appeal: Lords Browne-Wilkinson, Nolan, Steyn, Hoffmann and Hope of Craighead. The certified question was: "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?"
Lord Steyn's direction, at page 96, as Law Com CP 177 quotes it: "Where the charge is murder and in the rare case 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 the defendant appreciated that such was the case."
The House of Lords "allowed this appeal; quashed the conviction of murder and substituted a conviction of manslaughter".
The Recorder's direction turned on a "substantial risk" of serious injury, which Woollin must have realised and appreciated.
Lord Steyn's direction turns on a "virtual certainty" of death or serious bodily harm, which the defendant appreciated. It asks the jury whether they feel sure of that before they find the necessary intention.
In paraphrase, Lord Steyn held that a test of substantial risk blurred intention and recklessness.
Seven cases, from 1957 to 2003. Open each stop to read what happened, what the court did and what it left open.
[1957] 2 QB 396, Court of Criminal Appeal, 1957
He tore a gas meter from a cellar wall to steal the money in it, eight shillings. Gas seeped into the house next door, and a woman asleep in her bedroom there was "partially asphyxiated". He was charged under section 23 of the Offences against the Person Act 1861.
What "maliciously" required in that section. The trial judge had directed the jury: "'Malicious' for this purpose means wicked, something which he has no business to do and perfectly well knows it."
The Court of Criminal Appeal quashed the conviction. Byrne J, approving Kenny, said malice requires an actual intention to do the particular kind of harm, or recklessness as to whether such harm should occur or not.
"the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it"
Byrne J, on recklessness, approving Kenny
Whether the same test governed "reckless" in statutes that did not use "maliciously". In Caldwell the House of Lords said it did not.
As the law currently stands in England and Wales, the Crown Court Compendium (Part I, July 2024) says intention is "an ordinary English word. It is quite distinct from 'motive'". A defendant intends a result "if they act in order to bring it about", and "it is immaterial that the defendant (D)'s chances of success are small". That is direct intent.
For oblique intent, the Compendium says a jury "may find" intention where the result was a virtual certainty and the defendant knew it. Citing Royle [ 2013] EWCA Crim 1461, it says the test is "virtual certainty", not "high probability". Woollin applies in terms to murder, but the Compendium says it "appears to be applied across the criminal law". Citing Allen [ 2005] EWCA Crim 1344, it says the direction is needed "only in an exceptional case". Section 8 of the Criminal Justice Act 1967 provides that a jury "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 result of those actions".
On recklessness, the Compendium calls R v G "the leading authority". In paraphrase, a person is reckless when aware of a risk that a circumstance exists or that a result will occur, and it is unreasonable, in the circumstances known to him, to take it. The Compendium says "It is likely that this subjective definition of recklessness applies for all statutory offences of recklessness, unless Parliament has explicitly provided otherwise". It also gives Lord Lane CJ in Stephenson [ 1979]: knowledge "must have entered the defendant's mind even though he may have suppressed it or driven it out".
Intoxication has its own caveat. Under DPP v Majewski [ 1977] AC 443, as the Compendium records it, voluntary intoxication is no defence to a basic intent offence, and "A basic intent offence encompasses, inter alia, crimes of recklessness". For a crime of specific intent such as murder, intent must still be proved: "A drunken intent is nevertheless an intent" (Lane LJ, Sheehan and Moore).
Law Com 304 (November 2006) recommended codifying intention, at paragraph 3.27, and said at paragraph 3.9 that the law "has now reached a reasonably stable state". That is a recommendation, not law.
The Criminal Justice Act 1964 provides, in section 4(1): "Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not." Section 4(2) provides: "The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted."
In The People (DPP) v Murray [ 1977] IR 360, Walsh J said at page 386: "To intend to murder, or to cause serious injury... is to have in mind a fixed purpose to reach that desired objective." At page 387 he said that one who intends neither, but "does an act which exposes others to the risk of death or serious injury would not be guilty of murder". At page 403 Henchy J adopted the Model Penal Code: "consciously disregards a substantial and unjustifiable risk..."
The Law Reform Commission's report of January 2008 (LRC 87-2008) makes recommendations. At paragraph 6.04 it recommends that murder embrace "reckless killing manifesting an extreme indifference to human life". At paragraph 6.08(3) it recommends that a result is intended if "(i) It is the defendant's conscious object or purpose to cause it; or (ii) He is aware that it is virtually certain that his conduct will cause it..." These are the Commission's recommendations, not the law.
Court of Criminal Appeal, 1957. [1957] 2 QB 396
A man tore a gas meter from a cellar wall to steal its money, and gas seeped into the house next door. His conviction under section 23 of the Offences against the Person Act 1861 was quashed.
House of Lords, 1981. [1982] AC 341
Lord Diplock gave a two limb test for recklessness in criminal damage, which the Victorian Law Reform Commission says generated tremendous controversy.
House of Lords, 1985. [1985] AC 905
A soldier shot his stepfather at close range. The House of Lords set aside the verdict of murder and substituted manslaughter.
House of Lords, 1986. [1986] AC 455
Two striking miners pushed a concrete block from a bridge onto a road and a taxi driver was killed. The House of Lords dismissed the Crown's appeal.
Court of Appeal (Criminal Division), 1986. [1986] 1 WLR 1025
A man poured paraffin through a letterbox and set it alight, and a child died. The Court of Appeal substituted manslaughter.
House of Lords, 1998. [1999] 1 AC 82
A man threw his three-month-old son on to a hard surface and the child died. The House of Lords quashed the conviction of murder and substituted manslaughter.
House of Lords, 2003. [2003] UKHL 50
Two boys aged 11 and 12 lit newspapers in a yard and about £1m of damage was caused. The House of Lords departed from Caldwell and quashed the convictions.
Supreme Court of Ireland, 1977. [1977] IR 360
Walsh J and Henchy J are quoted on this page on what intention to murder requires and on recklessness.
Open a case to read the full analysis, then save it to your Library from there.
The defendant set fire to a wheelie bin against a wall, the fire spread to a building and killed a sleeping resident. Build the prosecution case that the defendant had the mens rea for murder.
LexCases will turn this into a search and show you the cases on each side.
Check every case against the report before you rely on it in formal work. The law moves.
On this page