August EWJ 24 - Flipbook - Page 79
certain to occur as a result of the defendant’s actions;
and did the defendant foresee the death or injury as
virtually certain? If the jury answered ‘yes’ to both
these questions, intention could be inferred.
In the Privy Council case of James Miller v. The King
[2023] UKPC 10, which references both R v Nedrick
(1986) 83 Cr. App. R. 267 and R v Woollin [1999] 1 A.C.
82, HL, the appellant was convicted of the attempted
murder of a police officer during the course of an
armed robbery in the Bahamas. During the trial, the
prosecution argued that the defendant had intended
to kill the police officer, having fired two shots in her
direction using a shotgun. The officer was hit by a
non-fatal blow but suffered injuries. The appellant
argued that the trial judge’s summary of the case was
unfair.
‘… in determining whether the accused had the necessary intent, the Jury may find it helpful to ask themselves, first, how
probable was the consequence which resulted from his voluntary act and, secondly, whether he foresaw that consequence;
he could not have intended to bring death or serious harm
about if he did not appreciate that death or serious harm was
likely to result from his act; if he thought that the risk to which
he was exposing the deceased was only slight, the Jury may
easily conclude that he did not intend to bring about the death;
the Jury should be directed that they are not entitled to infer the
necessary intention unless they feel sure that death or serious
bodily harm was a virtual certainty’
Section 12 of the Bahamas Penal Code sets out various
circumstances in which intent may be inferred, including section 12(3): ‘If a person does an act of such a
kind or in such a manner as that, if he used reasonable caution and observation, it would appear to him that the act
would probably cause or contribute to cause an event, or that
there would be great risk of the act causing or contributing to
cause an event, he shall be presumed to have intended to cause
that event, until it is shown that he believed that the act would
probably not cause or contribute to cause the event.’
In R v Woollin [1999] 1 A.C. 82, HL, the defendant
killed his 3-month-old son after throwing him onto a
hard surface in rage. The judge directed the jury that
if they were satisfied that the appellant had realised
there was a substantial risk that the child would suffer
serious harm, they could convict him of murder. The
defendant was convicted of murder and appealed.
The conviction for murder was quashed and substituted with one for manslaughter. It was ruled that
there had been a misdirection by the judge. The court
ruled that ‘By using the phrase “substantial risk” the judge
blurred the line between intention and recklessness, and hence
between murder and manslaughter. The misdirection enlarged
the scope of the mental element required for murder.’
Although the appeal was dismissed, the Privy Council
noted the importance of trial judges not imposing
their own view of what a defendant intended, but to
direct the jury to relevant evidence to allow the jury to
make their own decision, ‘…intention is an ordinary facet
of human conduct and it is not normally a difficult concept to
understand.’
Critique
The interpretation and application of virtual certainty
in criminal law has evolved through judicial decisions.
While the doctrine provides guidance in establishing
the mental element required for certain offenses, its application has been subject to criticism and controversy.
Instead, pursuant to Nedrick, the jury should be
directed to consider whether the defendant had foreseen that death or serious injury would be ‘virtual certain’ to result from his voluntary act. Lord Steyn
remarked, that ‘it does not follow that “intent” necessarily
has precisely the same meaning in every context in the criminal law’, it remains possible that lower levels of foresight could still be a sufficient basis for a legitimate
inference in relation to other offences requiring intention. This case introduced the concept of ‘virtual
certainty’ explicitly in determining indirect intent. It
emphasised that an individual could be held accountable if they foresaw death or serious harm as a virtual
certainty resulting from their actions.
Some academics argue that the concept of virtual
certainty may lead to harsh outcomes by broadening
the scope of criminal liability. Determining the accused’s state of mind regarding foreseeability involves
subjective judgments, leading to potential inconsistencies in legal outcomes.
Additionally, reconciling the principle of virtual certainty with the need for a fair and just legal system remains a challenge. Striking a balance between holding
individuals accountable for their actions and ensuring
that the legal system does not impose unjust liability
requires careful consideration by the judiciary.
In R v. Jogee [2016] UKSC 8, the Supreme Court
clarified the law concerning joint enterprise, a situation where multiple individuals are involved in the
commission of an offence. The court ruled that mere
foresight of the possibility that someone else might
commit a crime is not sufficient to establish guilt.
Instead, there must be a ‘virtual certainty’ that the
crime will be committed by the other person for joint
enterprise liability to apply.
Conclusion
Virtual certainty in criminal law significantly impacts
the establishment of mens rea, particularly concerning recklessness and indirect intention. Through landmark cases the courts have delineated the criteria for
inferring intention based on the foreseeability of outcomes. The concept of virtual certainty remains crucial
in determining criminal liability, yet its application requires careful consideration to maintain fairness and
consistency in legal outcomes. While providing a
framework to establish mental states in criminal offences, the doctrine of virtual certainty necessitates a
nuanced approach to ensure justice and avoid undue
harshness in its application.
This ruling had significant implications for cases
where individuals had been convicted under joint enterprise for crimes they did not personally commit but
were present at the scene or associated with the perpetrators. It brought about a re-evaluation of the legal
principles surrounding joint enterprise and highlighted the importance of clarity in establishing
criminal liability.
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