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Updated: May 8, 2023

Woollin Essay Question from Q&A series

‘After Woollin, the law of intention remains unclear, but it nonetheless works in a satisfactory manner.’



This essay will discuss how the case of R v Woollin[1]has left the law quite unclear. Nevertheless, the law still works in a satisfactory manner. This essay will firstly discuss direct intention and differentiate this with the circumstance in which oblique intention arises. This essay will then discuss whether oblique intention is a definition of intention or whether it is merely evidence of intention. This paper will analyse the case of Woollin. It will follow by suggesting any possible reforms. Lastly this paper will conclude its findings.

Direct intention

The present case law establishes that a defendant may ‘intend’ an outcome because it is the purpose of his act. For illustration, if a defendant wants to kill his victim and shoots at him from a considerable distance knowing that he may miss, he still intends this outcome. The death of the victim will be part of the reason for him acting. This is known as direct intention. If the death of the victim is the defendant’s purpose, he intends it even if his chances of success are minimal. This is a subjective test.

This state of mind of the defendant is that he has intended to murder his victim. The general rule was highlighted by Lord Bridge in R v Moloney,[2]where he stated it was the jury’s job to come to decide if the defendant had the necessary intention. Lord Bridge confirmed the word ‘intention’ should be given its normal meaning and that judges should stay away from providing a full working defining of the term, and only explain that it is different to ‘desire’ and ‘motive’.

“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 it meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with 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 elaboration is strictly necessary to avoid misunderstanding.”[3]

Thus as a rule in murder trials, the judge should direct the jury to return a guilty verdict if they are satisfied that the defendant intended to kill or cause serious bodily harm. Judges should not give juries any other elaboration as to what intention means.

The exceptions

Rarely cases come up where the judge will have to provide further elaboration as to what intention is. For example, where the jury has asked for further guidance or where the trial judge believes that the facts or the presentation of evidence in court would mean the jury will benefit from further elaboration. Lord Bridge in Moloney suggested that such cases are ‘rare’.[4]However, Lord Bridge did not make clear what type of cases would fall into this ‘rare’ class. It has since been suggested that it may sometimes be necessary to give a jury a detailed direction on the meaning of intention in those rare cases where the defendant does a dangerous act which as a result causes the death of the victim, but the principal desire or motive was not to harm the victim.

Oblique Intention

Where the defendant’s reason for acting is not murder but he causes the death of the victim he can still be found to have the necessary intention if the defendant has oblique intention. For example this can occur if the consequence in not the defendant’s operative purpose but rather a by-product that he accepts as inevitable. The consequence of the victim’s death here does not have to be ‘desired’. The defendant may be remorseful that this accompanying result will occur.

The Courts have come to the view that foresight of a “high degree of probability “could amount to intention.[5] However, in 1985, the House of Lords in R v Moloneymade it clear that foresight of probability did not amount to intention. Lord Bridge gave the jury this direction:

“First, was the 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…”[6]

Lord Bridge did not give a complete explanation of what he meant by ‘natural consequence’ in his guidance to the jury. This resulted in confusion and further appeals in subsequent cases. In R v Nedrick [7]the Court of Appeal provided a clearer test:

(the jury) are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty and that the defendant appreciated that such was the case.[8]

This is the test that was adopted by the House of Lords in R v Woollin.[9]The court gave the following model direction to be given to the jury:

“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 the death or serious bodily harm was a virtual certainty (barring some unforeseen event) as a result of the defendant's action and that the defendant appreciated that such was the case. The decision is one for the jury to be reached upon consideration of all the evidence.”[10]

Intention or evidence of intention

What is apparent is the lack of clarity when considering whether oblique intention is a definition of intention or whether it is merely evidence of intention.[11] This confusion arose as a result of the decision in R v Moloney, where Lord Bridge stated that such a state of mind could only be evidence of intention.[12] In R v Nedrick the Court of Appeal was bound by the decision in Moloney therefore they could only give a direction that would depart from this. The proposition that foresight of virtual certainty could be evidence of intention without also being intention has been much criticised by academics.[13] Sir John Smith has stated:

“After Nedrick some of us hoped that a perceptive jury would ask some unlucky judge what was the state of mind they were required to find proved which was not purpose but was something more than foresight of virtual certainty? – a question to which there appears to be no answer.”.[14]

R v Woollin

In R v Woollin Lord Steyn appeared to be treating foresight of virtual certainty as part of the definition of intention. He stated that “a result foreseen as virtually certain is an intended result”[15] and that Nedrick stated “what state of mind (in the absence of a purpose to kill or cause serious harm) is sufficient for murder.”[16] He then adapted Lord Lane’s model direction so that the jury now ‘find’ intention, rather than ‘infer’ intention, and by removing the two parts of the direction which gave the jury guidance as to how they might infer intention from foresight. However Lord Steyn did not tamper with the negative structure of the Nedrick direction, so the jury are still to be instructed that they are not entitled to find the necessary intention unless they find foresight of virtual certainty, not that they must find the necessary intention in such a case.


The question surrounding Nedrick and Woollin was whether the foresight of virtual certainty was an evidentiary or substantive direction. While the term seems clear it is phrased in the negative, so it possible to imagine the case where the jury finds foresight of virtual certainty, but decides it is “entitled” to not find intention. This question was considered in Matthews and Alleyne, but the Judges decided the evidentiary/substantive question was not an important one and so the evidence is still ambiguous and undecided. In this sense Woollin hasn’t made the law of intention much clearer; yes we have a simple definition for intention, but the jury could (theoretically) choose to discard or ignore it.

In the case of R v Matthews and Alleyne,[17] the trial judge gave the jury a direction that an intention to kill was proved if they were satisfied that the defendant had appreciated that there was a virtual certainty of death of the victim. The Court of Appeal did not consider that Lord Steyn had changed the law and said the foresight of virtual certainty was still only evidence of intention.

“the law has not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty.” [18]

In Woollin Judges seem to have been working towards a very clear definition of foresee- ability, with the degree of foresight needed placed very high in the scale, in order to make a clear difference between intention and recklessness and also to ensure there is a clear distinction between intention and motive. This view, the subjectivist orthodox view, (of for example Smith or Williams)[19] is the dominant one in case law today. However there are objections to this view, for example by Norrie[20] or Duff[21]who advocate the study of intention along with motive and desire; the so called ‘desirability package’ and are against the artificial separation of intention and other forms of state of mind in the case law.

A final problem with Woollin is the question of over and under-inclusiveness. It could be over-inclusive; for example a doctor could have foresight of virtual certainty that a patient will die if he administers a painkiller, but feels obliged to go through with it. Or if a Father throws his son out of a high window to escape a burning building, the Father would have foresight of virtual certainty, but as Norrie or Duff would say, he didn’t intend his son’s death, as you would see if you considered the motive.

The problem of under-inclusiveness can be seen in the terrorist example, which first arose in Moloney, where Lord Bingham said a terrorist who plants a bomb and then sends out a warning would not have the necessary foresight for the death of a bomb diffusal expert who is killed when the bomb accidentally goes off early.[22] However Lord Bingham decided this would not matter since the terrorist would still be convicted of manslaughter and could get as along a sentence for murder. Lord Steyn in Woollin also commented on the terrorist scenario, saying that in such a matter of public safety, the case would be considered differently.[23] We cannot stretch our law around rare terrorist scenarios.

This essay advocates Lord Steyn’s approach seems the most sensible, while, as Norrie mentioned, the courts seem more concerned with the label of murder than with the length of the sentence, (being reluctant to, for example call a Father who killed his son a murderer, but being more likely to put the label on a terrorist).[24] This kind of subjective, political thinking will only arise in a small number of cases. The majority of cases dealing with oblique intention, (which are in themselves a minority compared to direct intention) are clarified by the Nedrick/Woollin direction.


Blackhurst argues the House of Lords in Woollin missed a golden opportunity to break from the previous approach of the courts and produce clarity by expressly telling us that foresight of virtual certainty is a type of criminal intention.[25] However, one place we can find an attempt to clarify the law is the Law Commission Draft Criminal Code which includes oblique intention in its definition of intention.

“1. .... a person acts (a) ‘intentionally’ with respect to a result when –

(i) it is his purpose to cause it, or

(ii) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of casing some other result.”[26]

However, an important point is this definition is only for non-fatal offences against the person. It is submitted that the definition should be extended to all offences including murder as suggested by the Draft Criminal Code. However, the phrasing of “in the ordinary course of events” is very broad and even wider than the Nedrick and Woollin test of ‘virtual certainty’. One problem is in establishing what “in the ordinary course of events” means in every situation. Another argument that can be advanced is that it may lead to an increase in convictions of offences that people did not intend to commit and in some case could lead to a miscarriage of justice.


Foresight of consequences and intention are clearly both different and should not be equated in order to avoid further confusion in an area of law which has already demonstrated much complexity. There have been problems in this area of law however the fact that foresight of consequences is not the same as intention has remained the law and therefore we must accept it and follow it. If you need a crimnal law tutor try our Criminal Law Core Series book.


[1][1999] A.C. 82

[2][1985] A.C. 905

[3][1985] A.C. 905 at page 926

[4][1985] A.C. 905 at page 907

[5]Hyam v DPP [1975] AC 55 at p.68

[6][1985] A.C. 905 at p. 929, per Lord Bridge

[7][1986] 1 W.L.R. 1025

[8][1986] 1 W.L.R. 1025at 1028,Per Lord Lane CJ

[9][1999] A.C. 82

[10][1999] A.C. 82 at p.88, Per Lord Steyn

[11] W. Wilson, Criminal Law: Doctrine and Theory (London: Longman, 1998) at p. 126-128

[12] See footnote 5

[13] W. Wilson, ‘Doctrinal Rationality after Woollin’, [1999] 62 MLR 448 at 448

[14]Sir John Smith's commentary on Nedrick [1986] Crim LR 742, 743

[15] [1999] 1 A.C. 82 at p. 93

[16][1999] 1 A.C. 82 at p.94

[17] [2003] 2 Cr. App. R. 30

[18] [2003] 2 Cr. App. R. 30 at 476, paragraph 43, Per Rix LJ

[19] W. Wilson, ‘Doctrinal Rationality after Woollin’, [1999] 62 MLR 448 and Sir John Smith comment on Woollin [1997] Crim LR519, at p, 520-1

[20] A. Norrie, ‘Oblique Intention and Legal politics’ [1989] Crim LR 793, 800-7

[21] R.A. Duff, ‘The Politics of Intention: a Response to Norrie’ [1990] Crim LR 637 [22][1985] A.C. 905 at p. 910

[23][1999] A.C. 82 at p. 94-95

[24]A. Norrie, [1989] Crim LR 793, 800-7

[25]Blackhurst, (10 K.C.L.J. 121 (1999)) Retrospective Mistakes of Law; Mitchell, Charles, p. 121

[26]Law Commission (1989)Criminal Law: A Criminal Code for England and Wales. Vol. 1: Report and Draft Criminal Code Bill (House of Commons papers 1988-89 299 ed.). London: HMSO



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