Legal Interpretations of Murder

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“Moreover, over a period of twelve years since Nedrick, the test of foresight of virtual certainty has apparently caused no practical difficulties. It is simple and clear. It is true that it may exclude a conviction of murder in the often cited terrorist example where a member of a bomb disposal team is killed. In such a case it may realistically be said that the terrorist did not forsee the killing of a member of the bomb disposal team as a virtual certainty. That may be a consequence of not framing the principle in terms of risk taking. Such cases ought to cause no substantial difficulty since immediately below murder there is available a verdict of manslaughter which may attract the discretion of the court a life sentence.” Per Lord Steyn, ‘Woollin’ (1998) Discuss critically.

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“Legal Interpretations of Murder”

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THE MODERN INTERPRETATION OF INTENTION – IS IT REALLY CLEAR? “Intention” is not a legal term of art. Arguably, that is the most palatable reason for the perennial problems surrounding the interpretation of what is tantamount to intention. This paper seeks to examine the modern interpretation of intention especially in light of Lord Steyn’s prophetic utterances during the judgment of the House of Lords in the seminal case of R. v. Woollin.[1] Lord Steyn has suggested that the present formulation of inferred intention (his reference to the ‘test of foresight of virtual certainty’) for the purposes of substantiating murder has caused no practical difficulties – it is simple and clear. Moreover the writer will analyse whether the availability of manslaughter as an alternative charge is sufficient juristically to address any shortcomings that the present formulation may pose.

What exactly is intention?

For legal purposes, ‘intention’ loosely connotes the requirement on the part of the accused to perform the action and create the ultimate consequences for which he has been charged. Ergo, when an accused loads a gun, removes the gun’s safety attachment, points the gun at another individual, takes aim, informs that he is going to shoot that person and fires at that person; the accused’s intention is presumed to have been to shoot the individual. As in the above example, it is comparatively easy to make a determination of intention where the individual has expressed that intention and it is unequivocal what he intended to do. This may be termed ‘direct intention’. The problem, juristically, arises relative to the instances where the accused has not made any such admission and the jury is left to infer from the accused’s actions, the jury’s own understanding of the realities of the world, their own moral compasses and the ultimate consequences of the accused’s actions, whether the accused intended the murder with which he is charged. This may be called ‘inferred intention’.

Legislative Genesis of the Modern Position

The earliest stated standard equated foresight of the natural and probable consequences of an action with the intention to elicit the consequences.[2] The Criminal Justice Act of 1967 drew upon this interpretation in permitting the jury to draw the reasonable determinations of intention from all the evidence at their disposal. Wein J [3]. noted the mischief that the Criminal Justice Act, 1967 enabled. He suggested that although the evidence may lead to a finding of foresight and even recklessness, this was not in itself sufficient to justify a finding of intent. Essentially then, his submission was that intent was a rule of law and not one of evidence. In the controversial suit of R v. Maloney [4] the Court adopted a radical view suggesting that intent was in actuality based on the law of evidence, where if an accused forsaw that the death was a natural consequence of his act then this was sufficient for a finding of intent. In the ensuing case of R v. Hancock and Shankland[5] the Court sought to elucidate intention by noting that the higher the probability of an outcome, the likelier that it was foreseeable – the more likely that it was foreseeable, the more convincing that it was intended. The seminal case of R v. Nedrick[6] elevated the standard to its modern height. In that case the rather ‘a little likelier than even’ probability was ditched in preference of the standard that the accused’s recognition must have been of virtually certain death or serious injury. R v. Woollin[7] confirmed the high standard as espoused in R. v. Nedrick[8] of recognition of virtual certainty of death or serious injury in substantiating a finding of intent.


The Clarity Debate

In the wake of the finding of the House of Lords in the case of R v. Woollin[9] , as juidicially affirmed in the following suit of R v. Matthews and Alleyne[10] , the present standard remains that of accused recognition of virtual certainty of death or serious injury. Legal jurists propose that the ruling in R v. Woolin represented “…(that) the meaning of intention in the criminal law is cogent and stable and the mens rea for murder is as close as the common law is likely to get in providing a bright line between the culpability associated with this crime in contrast with manslaughter”[11] But is this really so? The example of the terrorist may prove instructive at this juncture. Let us take for example a terrorist who hijacks a commercial airliner, changes the flight plan, holds the passengers hostage, informs the hostages and the authorities that he intends to crash the airplane into a specified destination, as retribution for perceived governmental wrongs. What if then, the target lay in the middle of a populated metropolis with schools, hospitals and workplaces as its immediate neighbors? Could one satisfy oneself that the terrorist had really had the intention of killing the schoolchildren, hospital occupants and persons in the vicinity? According to the test of ‘Woollin’ a person is guilty of homicide where it is his intention either to cause the specific outcome or where he recognizes that in the ordinary course (without the interruption of some factor which is completely unforeseeable or unknown) the virtually certain outcome of his actions is death or serious injury. Applying the ‘Woollin’ finding to the present example, the terrorist would have indubitably been guilty of crimes, but do those crimes include murder? In hijacking the airplane, imprisoning the occupants thereof and taking control of the flight, the hijacker demonstrated the intention of committing serious crimes, assuredly. However, how is one to reconcile this with the death of those in the vicinity of the target? The answer, according to ‘Woollin’ lies in whether the actions undertaken by the terrorist were done with the understanding that in hijacking the plane and crashing it, there will morally certainly be deaths. In undertaking his actions the terrorist recognized that death would have been the sure result of what he had set about to do? Is it reasonable to assume that the terrorist knew that crashing a plane would certainly have led to death or serious injury? Suppose his intention had to been to crash the airplane into the top of the building harming only himself in the process? Were the deaths of others then a virtual certainty? Reason dictates that it is extremely probable that in crashing an airplane into a building in a metropolis would result in death. But the virtually certain element is arguably not there. The terrorists act, legally then, may have been very reckless to substantiate a finding of manslaughter, but presumably not of sufficiency for a finding of murder. In the post ‘Woollin’ era, it is clear that the degree of foresight needed is that of virtual moral certainty. Moreover, the judge may not direct the jury to infer intention from the foresight of a probable result. It is submitted here, that it is only from drawing inferences on the probability that death would have occurred as a result of his intention to crash the airplane at its target, that a finding of murder could have been substantiated on these facts. As Lord Steyn noted in the quote stated at the introduction of this piece, the new standard would appear to exculpate those, like our terrorist, who may have been proven to have acted with extreme recklessness, but for whom the intention mantle cannot be affixed. Does this represent clarity in the development of the law of homicide? Or is it regression?


Lord Steyn suggests that life sentence under a finding of manslaughter is sufficient to sate one’s desire for justice where acts of terrorism are concerned. The writer is genuinely surprised by the honorable Lord’s finding in this respect. Society requires justice to be done. Societal perception is that murder is much more heinous than its ‘excusable killing’ counterpart of manslaughter. Are we then to accept that due to the anomalous development of the law of intention that those whose actions would have in all likelihood resulted in death or serious injury be excused because, as with our example the hijacking and crashing of the airplane was not virtually sure to have ended in death, when reason teaches us that it probably would have. It is indeed a sad day when the legal fraternity absolves itself from the requirement to mete out appropriate sanction to those deserving of it. Where the accused’s intention is to have caused mayhem and destruction in a situation where the actions would have in all likelihood resulted in death, is murder not appropriate? Manslaughter is not murder. Legally accepting the lesser is not a sufficient replacement for the greater.



Allen M., Textbook on Criminal Law, (OUP, London, 9th ed., 2007) DPP v. Smith [1961] AC 290 Law Commission, Legislating the Criminal Code: Offences Against the Person and General Principles No. 218, (HMSO, London, 1993) Norrie, A., Oblique Intent and Legal Politics [1989] Crim L R 793 Omerod D, Smith and Hogan Criminal Law (OUP, London, 11th ed., 2005) Pedain A., Intention and the Terrorist Example, [2003] Crim L R 579 R v. Belfon [1976] 3 All E R 46 R v. Hancock and Shankland [1986] 1 All E R 641 R v. Maloney [1985] 1 All E R 1025 R v. Matthews and Alleyne [2004] 1 All E R 148 R v. Nedrick (1986) 83 Crim App Rep 267 R v. Woollin [1998] 4 All E R 103 Wilson, W, Doctrinal Rationality after Woollin, Modern Law Review (Volume 62, 1999), 448 1


[1] R. v. Woollin (1998) 4 All E R 103 [2] DPP v. Smith [1961] AC 290 [3] R v. Belfon (1976) 3 All E R 46 [4] R v. Maloney (1985) 1 All E R 1025 [5] R v. Hancock and Shankland (1986) 1 All E R 641 [6] R v. Nedrick (1986) 83 Crim App Rep 267 [7] R v. Woollin (1998) 4 All E R 103 [8] R v. Nedrick, n.(6) [9] R v. Woollin , n.(7) [10] R v. Matthews and Alleyne (2004) 1 All E R 148 [11] Wilson, William, Doctrinal Rationality after Woollin, Modern Law Review (Volume 62, 1999), 448

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Legal interpretations of murder. (2017, Jun 26). Retrieved November 28, 2022 , from

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