Woollin: more on foresight and all that

• Author: C. G. Hall
• Position: Of the Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 93-112

WOOLLIN: MORE ON FORESIGHT

AND

ALL

THAT

C. G. HALL*

Things are seldom as they seem. In Woollin,1 the House of Lords considered

once again the mental element in murder. The leading speech was delivered by

Lord Steyn. As a consequence, there seems little doubt that Woollin will be

perceived as a 'landmark' decision in the manner of

D.P.P.

v. Smith2 and Hyam v.

D.P.P.3 For, on one analysis, what Woollin has done is to compound the errors

bedeviling the mens red of murder for nearly four decades; this since Lord Steyn,

with the dexterity of those with great creative power, ingenuously, unaffectedly and

imaginatively contrived to re-write two House of Lords and a larger number of

Court of Appeal decisions in the name of consistency and orthodoxy. Yet,

paradoxically, in doing so, and perhaps despite that artistry, the Noble and Learned

Lord arguably re-set the foundations of the mental element in murder as judicially

understood on a surer footing.

It is unnecessary to rehearse Smith and Hyam. Each contained erroneous

expositions of law. Leaving aside the effect of s.8 of the Criminal Justice Act, 1967

in England,4 at common law the presumption

that

a man intends the natural and

probable consequences of his actions is of evidential significance

only

and is to be

accounted with all other evidence to test D's subjective

state

of mind.5 Similarly,

for D to do an unlawful act with knowledge that death or grievous bodily harm is

Of the Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados.

1 [1998] 4 All E.R. 103.

2 [1961] 3 All E.R. 161.

3 [1974] 2 All

E.R.

41.

4 In the Commonwealth Caribbean, see, e.g., s.9, Belize Criminal Code, Cap. 84; s.7(4),

Montserrat Penal Code, No. 12 of

1983,

s.28 Bermuda Evidence Act, Title 8 Item 10.

5 See,

e.g.,

Hyam [19741 2 All E.R,

41,

at p. 52 fur Lord Hailsham; Moloney [1985]

1

All E.R

1025,

at p. 1033 per Lord Bridge;

Hancock

[1986] 1 All E.R. 641, at pp. 649-50 per Lord

Scarman; Frankland [1987] A.C 576

(P.C.);

Johnson (1966-67) 10 W.I.R. 402; Reid (1978)

32 W.I.R. 77. But cf. Code provisions in the Commonwealth Caribbean; s. 72, St. Lucia

Criminal Code 1992; s. 11(3), The Bahamas Penal Code, Ch. 77; s.12(3), Grenada Criminal

Code, Cap. 76, See, however, Tench (1991) 41 W.I.R, 103; Samson St. Lucia (unrep.) No.l

of

1989

(25.10.93).

a highly probable consequence of that act is not the same as an intention to do the

act but only evidential of

his

intention to do it.6

Yet in theory and practice this is not the end of the matter. For example, on

the question of foresight, does a man who foresees a result as an inevitable

consequence of what he set out to achieve in law intend that result? Is there a

point in the range of foreseen probabilities - less or more likely than not, likely,

probable, highly probable, very highly probable, virtually certain - below which

foresight is evidentially irrelevant? Or may any level of foresight be taken into the

profile? These and other things were explored, at times incompletely and

incoherently, in the speech of Lord Bridge in Moloney7 and in later cases8 serving

essentially as commentaries on that decision. Thus it is

Moloney

which is critical

to the discussion. What did it decide?

Until Lord Steyn's speech in Woollin, the present writer had no doubt that

Moloney decided rwn things: first, that the

mens

rea of murder is the specific intent

to kill or cause grievous bodily harm and nothing

else;

secondly, that D's foresight

of death or grievous bodily harm is no more than evidence of those intentions,

albeit that in an appropriate case it might prove critical if the level of foreseen

probability

was

sufficiently high.9 However, to Lord

Bridge,

who delivered the main

speech and with whom all other Lords of Appeal expressed agreement, there was

one case where a foreseen result was to be classified

as

intentional. This was where

D foresaw the result as a "moral certainty"10 or, in ordinary language, as inevitable,

as in the hypothetical example he gave of the man who boards a plane at London

Airport bound for Manchescer solely to escape pursuit- The man has no desire to

travel to Manchester for its own sake but "conclusively demonstrates his intention

to go there, because it is a moral certainty that is where he will arrive."11 In other

situations, cases prior to Moloney had suggested that "the probability of the

consequence taken to have been foreseen must be little short of overwhelming

6 Moloney [1985]

1

All E

.R.

1025. But in the Commonwealth Caribbean cf., e.g.,

s.71,

St. Lucia

Criminal Code 1992; s. 11(2), The Bahamas Penal Code, Ch,

77;

s.12(2), Grenada Criminal

Code, Cap. 76.

7 Supra, n. 6.

8 Hancock [1986] 1 All

E.R.

641;

Nedrick

[1986] 3

All E.R.

1;

Barr (1989) 88 Cr. App, R. 362;

Walker * Hayles (1990) 90 Cr. App. R

226;

and

Woollin

[1997]

1

Cr. App R. 97 (C.A.).

9 Seemingly, these were the answers to the two certified questions of the Court of Appeal (see

per Lord Bridge at p. 1029), assuming thai the reference to foresight of probability in the

second question covers the entire range of foreseen probabilities other than, foreseen "moral

certainty".

10 At

p.

1037- The phrase seems to be derived from Lord Hailsham's speech in Hyam: [1974] 2

All

E.R.

41,

at p. 52.

11 Ibid.