The Woollin test – my analysis

I am an undergraduate law student at the University of Kent, and have studied the Woollin Test in depth. I thought I would post my analysis, for those who are interested.

The facts of the Woollin case: A father had lost his temper, picked up his son and threw him across the room. The baby landed on a hard surface, fractured his skull and died. Woollin argued that he had not intended to cause such harm and that he had no malice aforethought. Woollin appealed his conviction and this matter was brought before the House of Lords.

In most cases, the defendant’s actions are enough to show intention, however it becomes difficult when they do not. The Courts dealt with the issue of intention which had previously lacked clarity. The issue in this case surrounded the intention of the defendant, and the jury were directed to consider whether the death or serious harm caused was a ‘virtual certainty’, and whether the defendant had appreciated that was the case.

This test had developed throughout precedent case law and statute.

In R v Smith 1960, it was stated that “the sole question is whether the unlawful and voluntary act was of such a kind that grievous bodily harm was the natural and probable result. The only test for this is what the ordinary, responsible, man would, in all the circumstances of the case, have contemplated as the natural and probable result.” This rule sounds sensible and reasonable, however if there is no evidence, you can infer intention by looking at the result was natural and probable. However, it is clear that determining whether something was natural and probable will differ in opinion.

Then in 1967, we have Section 8 of the Criminal Justice Act. In section 8, it attempted to overturn the decision in Smith, and clarify the test for proving criminal intention. It stated that “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.” What Parliament try to do with this section is to clarify that simply having a natural and probable result is not enough to prove intention, and try to take into account the material evidence.

Then followed the case of Hyam 1974, which considered the principle in Smith and appeared to put the Criminal Justice Act on the back burner. This case states that as the defendant realised that serious harm was a high probability, intention was present. It attempts to revert to the rule that a natural and probable result is enough to prove intention. It seems that the statute has not had the desired effect in clarification.

The Courts then had another opportunity to address this area in the case of Moloney 1985, which introduced the ‘foresight of natural consequence’ test. It rejected the fact that if the defendant had realised that there was a high probability of harm that could equal intention. Lord Bridge stated that he thought the issue of intention belonged “not to the substantive law, but to the law of evidence”. This case also stated that it was for the prosecution to prove an intention to cause death or serious harm. The Trial Judge in this case directed the jury that if he “intends the consequences of the voluntary act a) when he desires it to happen b) when he foresees it, it will probably happen”. If the jury could answer yes to both of those questions, then they could infer that the defendant intended the consequence.

In R v Nedrick, it is stated that the jury should therefore be further directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certain result of the defendant’s action (barring some unforeseen intervention) and that the defendant appreciated that fact.

And then came Woollin. The Nedrick case was applied, and Moloney considered. Lord Steyn also argues that the case of Hyam got it wrong, and that Moloney and Nedrick were followed, reveals a consistent and principled development of the law. The clarity sought in Woollin was for rare circumstances where death or serious injury had been a virtual certainty. This time the Lords ruled that “in rare cases where the simple direction was not enough, the jury should be directed that they are not entitled the necessary unless 1) they feel that death or serious bodily harm was a virtual certainty as a result of the defendant’s actions, and 2) the defendant appreciated that such was the case.” If the jury can answer yes to both limbs of the test, this does not equal intention, but it can provide the grounds to say that the jury are sure and have no reasonable doubt. However, the jury are not under a duty to convict if both limbs are proved.

Woollin had his murder conviction quashed and was convicted of manslaughter.

Some may argue the threshold for proving intention is too high, but this is an extremely serious offence and the jury need to be sure beyond all reasonable doubt before deciding to convict someone of such an offence. It is how the jury are directed in relation to deciding whether or not a defendant intended to cause death or serious harm that is the key issue here. From as far back as the 1960s, although this issue and attempt at clarification for criminal intention has evolved, it is far from over, in my opinion.

The phrase ‘virtual certainty’ can be interpreted to mean different things by different people, judge and jury included. For example, this phrase can be interpreted to mean ‘as sure as we can be about anything’, however, of what can we really be sure. If the defendant knew that it was a virtual certainty that serious injury or death may occur, but still did not intend it to happen, then the jury should be directed in order to consider that element, and not convict based on his mens rea.

In the Criminal Law Review 1999, Alan Norrie writes, in what I consider to be a powerful piece in relation to the decision in Woollin. He looks at whether the rule and the law in relation to this area should be broader, whether it has the possibility to be narrower, and even the language of the rule and its interpretation. He states that this “may still remain unclear after recent House of Lords decision” and suggests that this may not be the last we hear from the Courts in this area. In law, you cannot ever predict every possible case that will appear before the Court therefore it is difficult to narrow a rule down to pure black and white. Also, the ambiguity of this rule will be beneficial to future cases to, again, evolve the law further.

The test applied in Woollin may become a problem in some instances. For example, when a defence is below average intelligence, and although the reasonable person may see a virtual certainty to a specific action, a defendant may not. If no medical condition has been diagnosed, it may become slightly easier for the prosecution to use an argument that he should have foreseen it, although unsure how this would affect the jury’s decision, it is a possibility.

Yet another cloud of confusion surrounding intention was set over a case in 2003 – Matthews. Two co-accused put a victim over a bridge and into the water, even though they knew that the victim could not swim. They were convicted and their appeals were dismissed on the basis that the “law had not yet reached a definition of intent in murder in terms of a virtual certainty.” Woollin had been recognised, but not as a leading case. The Judge redrafted the rule in Nedrick and Woollin together where they were directed to find the necessary intent proved provided they were satisfied in the case of any defendant that there was an appreciation of the virtual certainty of death.

In the commentary of a Criminal Law Review’s case comment of Matthews, Barsby states that, as appreciated above, “foresight of virtual certainty—the door still ajar”. She also states that “It remains a rule of evidence, permitting the jury to move from a finding of foresight of appreciation of virtual certainty to finding of intention…” One can argue that a jury may not be directed in how to make that jump, they are only directed on finding a realisation of a virtual certainty.

We are left to wonder if the co-accused did not know their victim could not swim, how would the rule have been applied? Would Woollin have sufficed?

We must appreciate the complexity of mens rea, the state of mind, intention and do our best to do justice to those standing Trial. In my opinion, the law appears to be developing in the right direction and affirming rules that we should adopt and amend when necessary.

Dealing with matters on a case by case basis is the only way forward within our criminal justice system, developing law as society progresses, as in the above tests.

R v Smith (1960) 3 All E.R. 161
R v Hyam (1974) 2 All E.R. 41
R v Moloney (1985) 1 All E.R. 1025
R v Nedrick [1986] 3 All ER 1
R v Woollin (1998) 4 All E.R. 103
Alan W. Norrie, ‘After Woollin’ [1999]
R v Matthews [2003] EWCA Crim 192
Clare Barsby, ‘Homocide: victim, known by defendants to be unable to swim, thrown from bridge into river – victim drowned’ [2003]


One thought on “The Woollin test – my analysis

  1. Hello, I am also a student at the University of Kent and I am doing an assignment on this topic. Id love for your insight. Please send me an email and we can further discuss.

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