R v Hancock and Shankland [1986] AC 455

Striking miners Hancock and Shankland dropped heavy concrete from a bridge onto a taxi carrying a working miner, killing the driver. Initially convicted of murder, they had their convictions reduced to manslaughter. The House of Lords upheld this and held that the Moloney jury directions on intention, based on “natural” consequences, were defective without explicit reference to probability.

Facts

On 16 May 1985 at the Crown Court, Cardiff, Reginald Dean David Hancock and Russell Shankland were convicted of the murder of Mr Wilkie.

In the early hours of 30 November 1984 Mr Wilkie was driving his taxi along the Heads of the Valley Road. As he approached a bridge at Rhymney, two lumps of concrete, a block and a post, were dropped from the bridge and struck his car. The block hit the windscreen; the post struck the carriageway near the nearside verge and was then hit by the taxi, which skidded out of control and came to rest on the embankment. Mr Wilkie died from his injuries.

Mr Wilkie’s passenger was a miner going to work. Hancock and Shankland were striking miners who strongly objected to the passenger going to work. They had collected the concrete from nearby, carried it to the bridge and placed it on the parapet facing towards the Rhymney roundabout. They then waited for a convoy escorting the miner to work, consisting of a police motor-cycle, a police land-rover, the taxi and a police van, travelling at about 30–40 mph in the nearside lane.

The prosecution case was that the concrete was thrown or pushed into the path of the taxi at a time when it could not avoid being struck, and that the only realistic inference was an intention to cause really serious bodily harm to the occupants of the car.

The defence accepted responsibility for dropping the concrete but contended that the defendants intended only to block the road to stop the miner going to work, and to frighten rather than injure anyone. Hancock told the police he had dropped the concrete on the side nearest the roundabout and believed he was standing over the middle lane, not the nearside lane. He denied meaning to do damage, saying he wanted "just to frighten him … more than anything." Shankland admitted participation in the plan to obstruct the road but denied any intention to hurt anyone, stating that they had intended to drop the objects in the middle lane and believed they had done so.

Both defendants were prepared to plead guilty to manslaughter, but the Crown proceeded with a murder charge. The central factual issue was their intention: whether they intended to kill or cause really serious bodily harm.

Issues

1. Mental element for murder and role of foresight

The case raised the question of how juries should be directed on intention in murder where foresight of consequences is in issue. Following Reg. v Moloney, the trial judge had directed the jury using guidelines which focused on whether death or serious injury was a "natural" consequence of the defendant’s act and whether the defendant foresaw it as such.

The appellate issue concerned the relationship between foresight of consequences and intention, and particularly whether the probability of the consequence occurring must be explicitly explained to the jury as part of their assessment of intention.

2. Validity and sufficiency of the Moloney guidelines

The Court of Appeal had quashed the murder convictions, substituting verdicts of manslaughter, on the ground that the judge’s use of the Moloney guidelines might have misled the jury. It certified the following question of general public importance:

" Do the questions to be considered by a jury set out in the speech of Lord Bridge of Harwich in Reg, v. Moloney [1985] A.C. 905, 929 as a model direction require amplification?"

The Director of Public Prosecutions appealed to the House of Lords to challenge the Court of Appeal’s refusal to treat the Moloney guidelines as sound.

Judgment

Outcome

The House of Lords affirmed the orders of the Court of Appeal (Criminal Division), answered the certified question in the affirmative, and dismissed the appeal. The defendants’ manslaughter convictions therefore stood, and their murder convictions remained quashed. Costs of both appellant and respondents were ordered to be paid out of central funds under section 10 of the Costs in Criminal Cases Act 1973.

Reasoning on intention and foresight

Lord Scarman, with whom Lords Keith of Kinkel, Roskill, Brightman and Griffiths agreed, explained that the appeal centred on the correctness of the jury directions suggested in Reg. v Moloney. In that case, the House had clarified that the mental element in murder is a specific intent: an intention to kill or to inflict serious bodily harm. Nothing less will suffice, and the jury must be sure that this intent existed when the fatal act was done.

The House in Moloney had also made clear that foresight of consequences is not equivalent to intention but is evidence from which intention may be inferred when taken with all the circumstances. As Lord Hailsham had said:

"I conclude with the pious hope that your Lordships will not again have to decide that foresight and foreseeability are not the same thing as intention although either may give rise to an irresistible inference of such, and that matters which are essentially to be treated as matters of inference for a jury as to a subjective state of mind will not once again be erected into a legal presumption. They should remain, what they always should have been, part of the law of evidence and inference to be left to the jury after a proper direction as to their weight, and not part of the substantive law."

The decision in Moloney had also emphasised the importance of the probability of the consequence in assessing intention. Lord Bridge had observed that the probability of the foreseen consequence must be "little short of overwhelming" before it can suffice to establish the necessary intent.

Defect in the Moloney guidelines

The difficulty arose from Lord Bridge’s subsequent attempt in Moloney to formulate model jury directions. He suggested that in rare cases, where it was necessary to direct a jury by reference to foresight of consequences, the judge should invite the jury to consider two questions focusing on whether death or serious injury was a "natural" consequence and whether the defendant foresaw it as such, adding that if both were answered yes, it was a proper inference that the defendant intended that consequence.

These questions referred only to a "natural" consequence and omitted any express reference to probability. Lord Scarman noted that Lord Bridge had deliberately left out "probable" from the phrase "natural and probable consequences" because he thought it otiose.

The Court of Appeal had held that this omission meant the guidelines failed to convey the critical importance of the degree of probability as an evidential factor when inferring intent from foresight. Lord Scarman agreed. He doubted that a jury, without further explanation, would treat "natural" as encompassing the notion that the result was highly probable. He held that the probability of the consequence was of such importance that it must be specifically brought to the jury’s attention and explained.

In murder cases where intention is to be inferred from foresight, the likelihood that death or serious injury will result may be crucial. The greater the probability of that result, the stronger the evidence that it was both foreseen and intended. Failure to explain this may mislead a jury into focusing solely on the causal link between act and consequence and underestimating the evidential significance of probability.

Because the trial judge in the present case had closely followed the Moloney guidelines, he had failed to explain the role of probability. The jury’s subsequent note revealed their perplexity, particularly "with regard to intent and foreseeable consequences." Lord Scarman considered that the two questions from Moloney did not resolve their difficulty about how foresight related to intention.

Lord Scarman therefore concluded that the Moloney guidelines, as expressed, were "unsafe and misleading." They required amplification by explicit reference to probability and by explanation that the greater the probability of a consequence, the more likely it is that it was foreseen and intended, while always reminding the jury that the ultimate decision on intention must be made on all the evidence.

Approach to guidelines and jury directions

Lord Scarman accepted the Court of Appeal’s criticism of the Moloney guidelines but expressed reservations about issuing elaborate general guidelines for use by trial judges. He emphasised that juries are expected to exercise practical common sense rather than apply a logical, step-by-step analytical framework. They need help on the practical evaluation of the evidence in the particular case, not an abstract sequence of questions.

He suggested that the traditional form of summing up remains preferable: the judge should state the nature of the offence and the applicable law, explain the burden and standard of proof, fairly present both prosecution and defence cases (ensuring the defence is clearly put), assist in evaluating the evidence, and make clear that law is for the judge but facts are for the jury.

Guidelines issued by appellate courts can be useful but should be given sparingly, limited to genuinely difficult areas, and should avoid over-generalisation. They are not rules of law and should not be treated as mandatory. The judge’s duty remains to give correct legal directions and to provide case-specific assistance on the facts.

In cases where foresight of consequences forms part of the evidence of intention, a judge may, in the light of section 8 of the Criminal Justice Act 1967, explain that however high the probability of a particular consequence, it is only a factor (albeit sometimes a very significant one) to be considered alongside all other evidence in deciding whether the accused intended that consequence. The crucial distinction between the substantive offence and the evidential use of foresight must be preserved.

Implications

This decision confirms three key principles in the law of murder and crimes of specific intent:

• The mental element for murder is a specific intent to kill or to cause serious bodily harm, and nothing less.
• Foresight of consequences belongs to the law of evidence, not the substantive definition of the offence. It is a fact from which intent may be inferred but is not itself intention.
• The degree of probability that a consequence will follow from an act is a central evidential factor in assessing intention; the higher the probability, the stronger the inference that the result was intended.

The House of Lords held that the model direction suggested in Moloney, confined to "natural" consequences without explicit reference to probability, is defective and should not be used without further explanation. Trial judges should avoid rigid formulae and instead give clear, case-specific directions, particularly emphasising that probability is an evidential matter to be weighed under section 8 of the Criminal Justice Act 1967.

The decision also illustrates the dangers of broadly framed jury guidance becoming detached from its evidential context and being treated as substantive law. It underscores the need for appellate courts to issue guidelines only with caution and for trial judges to preserve the central role of the jury as fact-finder, applying common sense to all the evidence in determining intention.

Verdict: The House of Lords affirmed the orders of the Court of Appeal (Criminal Division), answered the certified question in the affirmative, and dismissed the Director of Public Prosecutions’ appeal, leaving in place the substituted manslaughter verdicts in place of the original murder convictions.

Source: R v Hancock and Shankland [1986] AC 455