Crime XVIII – Murder V

In R v Woolin (1999) we once again look into the ingredients for murder and we weigh the probability of consequences test on one end with the need to establish a clear discernible intention to kill on the other (the virtual certainty test). The accused threw his 3-month-old baby boy on a hard surface and as a result the baby suffered a fractured skull and died. The trial judge directed the jury to the effect that if the accused could foresee that his actions would lead to some sort of serious injury to the child, regardless of the state of mind of the accused, at the time he committed the act, the jury must convict for murder.

The jury accordingly found that it was likely that the accused could foresee that his actions would lead to some sort of serious injury to the child and as a result convicted for murder. The accused raised the defense of provocation but the defense was rejected. The accused appealed.

The House of Lords substituted the conviction for murder with that of manslaughter. To obtain a conviction for murder the prosecution must proof beyond reasonable doubt that the accused intended to kill his or her victim and the fact that it was foreseeable that the accused’s action would lead to some sort of injury or other was not sufficient. Intent may be inferred in extreme cases but for intention to be inferred death must be a virtual certainty.

Applying the virtual certainty test to the facts of the case, it cannot be said with a high degree of certainty that death or serious injury would result from the accused’s actions. A lot depends on the evidence that is presented to the court and in this instance in order to establish virtual certainty we have to look into the force of the throw, from what height the baby was throw from etc.

In R v Matthews and Alleyne (2003) the accused threw the victim off a bridge into a river knowing that the victim could not swim. The victim subsequently drowned and the accused was charged and convicted for murder. At the trial, the judge directed the jury to the effect that if the accused was able to foresee that death would have been the result of his actions he should be convicted for murder. The accused appealed on the grounds that foreseeability and virtual certainty were not the same thing and that the trial judge had erred in his direction to the jury.

The Court of Appeal upheld the conviction for murder but distinguished between foreseeability and virtual certainty. S. 8 of the Criminal Justice Act 1967 gives us some indication of the standard of foreseeability that is required to convict for murder. Proof of criminal intent –

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.


Murder and manslaughter are classified as homicides however we have to keep in mind that not all homicides are a crime for example legal homicide or justifiable homicides. When the police kill an armed felon or when the death of another occurs as a result of self-defense than the homicide may be deemed to be legal or justifiable.

As we have seen earlier, the act of killing another would be deemed justifiable if the accused used the level of force that he or she honestly believed was necessary at the time the accused committed the act to protect himself or herself.

Hence the level of force that is used will depend on the accused and will differ from one accused to another depending on the circumstances.

The difference between murder and the lesser crime of manslaughter is intent or the mens rea. If the accused did not intent to kill the victim but death was nonetheless the result of the accused’s actions then the accused will be charged for manslaughter.

Even if the accused was charged with murder but the judge or the jury find that the accused did not have the mens rea to kill or did not intend to kill the victim then the charge or conviction for murder will be substituted with that of manslaughter and when determining if whether the accused intended to kill, the judge will apply the virtual certainty test i.e. the accused must be able to foresee that death would be a virtual certainty of his or her actions. If the judge or the jury find that there was indeed intention or if the virtual certainty test turned out to be positive than the judge or the jury will return a conviction for murder.

Copyright © 2018 by Dyarne Ward

Leave a Reply

Your email address will not be published. Required fields are marked *