August EWJ 24 - Flipbook - Page 78
Virtual Certainty and Foresight of
Consequences – Where Are We Now?
This article aims to examine the concept of virtual certainty within the context of criminal law
in England and Wales, focusing on its application and significance in establishing mens rea.
The concept of virtual certainty intersects with
recklessness in cases where the accused’s actions leads
to a highly probable consequence, rendering it
virtually certain.
An example demonstrated in Williams, ‘Oblique Intention’
[1987] 46 C.L.J. 417 at 423 from Hyam [1975] A.C. 55 highlights the need for a place for virtual certainty in criminal law. A man blows up an aeroplane mid-flight in
order to claim insurance. It is not his principal purpose to kill the passengers and crew, but rather his ‘intention’ is to gain the insurance money. However, he
knows that, by destroying the plane, he will almost
certainly cause the deaths of the passengers and crew.
He has accepted the inevitability of this outcome, and
so is just as morally blameworthy as one who blew up
the plane with the intent to cause death. While oblique
intention and virtual certainty are separate concepts,
the connection between them lies in the recognition
that, in certain circumstances, an individual’s awareness of the consequences of their actions can be
deemed equivalent to intending those consequences.
If the outcome is so foreseeable and likely that it
amounts to virtual certainty, the law may attribute intent to the individual, even if they did not directly
desire that outcome.
R v Moloney [1985] 1 AC 905 involved a father and
stepson, who were both intoxicated at the time of the
incident. They engaged in a conversation about their
shooting abilities, and in a drunken state, the defendant pointed a loaded shotgun at his stepfather, saying, ‘I bet I can beat you.’ The gun went off accidentally,
and the defendant’s stepfather was killed. The primary issue in the case was whether the trial judge’s directions to the jury regarding the mens rea necessary
for murder were appropriate. The court ruled that
foresight of consequences alone is not sufficient to establish intent for murder. The defendant must have
had an intention to cause death or serious bodily harm
to be found guilty of murder. Mere foresight of consequences, although an important consideration, does
not equate to intent.
Thereafter, R v Nedrick (1986) 83 Cr. App. R. 267
refined the understanding of indirect intention. If a
defendant foresaw a virtually certain consequence of
their actions and continued regardless, that could
equate to intention. The defendant had longstanding
issues with another individual. In the middle of the
night, he drove to the individual’s home and poured
petrol through their letter box, ignited it and caused a
fire, killing a child. The defendant was charged with
murder. The trial judge directed the jury that if the defendant knew it was highly probable that the act would
result in serious bodily harm to someone, even if he did
not desire that result, he would be guilty of murder.
The defendant was convicted of murder and appealed.
The interpretation and application of virtual
certainty in criminal law
Historically, recklessness has involved the conscious
disregard of a substantial and unjustifiable risk. The
leading case of R v Cunningham [1957] 2 Q.B. 396;
(1957) 41 Cr. App. R. 155, CCA involved the defendant
removing a gas meter. His act caused a gas leak that
resulted in a neighbour being poisoned. He was
charged with section 23 of the Offences against the
Person Act 1861. The trial judge explained the word
‘maliciously’ to mean general wickedness. The defendant was convicted. The appellate court quashed the
conviction on the grounds that the trial judge’s
approach was incorrect. The correct test for malice
was whether the defendant had either actual intent
to cause harm or was reckless as to the possibility of
causing foreseeable harm.
The issues were whether a jury was entitled to deduce
intent if they considered a defendant’s actions highly
likely to cause death or serious bodily harm; whether
the defendant’s foresight of the likely consequences of
his act was sufficient to satisfy the mens rea of murder,
and whether the trial judge’s direction to the jury that
the defendant could be guilty of murder if he knew it
was highly probable that serious bodily harm would
occur as a result of his act was a misdirection. The appeal was allowed. The court held that the jury should
be directed that they were not entitled to infer intention unless they were satisfied that they felt sure that
death or serious bodily injury was a virtual certainty as
a consequence of the defendant’s actions and that the
defendant knew this.
Cunningham clarified that recklessness involves both
subjective awareness of the risk and a decision to proceed regardless. The accused’s knowledge of the risk,
coupled with an indifference to the potential harm
caused by his actions, established recklessness. The
court observed, ‘In our view it should have been left to the
jury to decide whether, even if the appellant did not intend the
injury to Mrs. Wade, he foresaw that the removal of the gas
meter might cause injury to someone but nevertheless removed
it.’ This case established recklessness as a form of mens
rea, broadening the scope beyond direct intent. It introduced the notion that foreseeing the consequences
and taking the risk can attribute culpability to an individual under certain circumstances.
EXPERT WITNESS JOURNAL
The court should consider two questions: did the jury
consider that death or serious injury was virtually
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