R v Matthews and Alleyne [2003] EWCA Crim 192

Two defendants threw a non-swimmer off a bridge into a river, where he drowned, after robbing him. They were convicted of murder. The Court of Appeal considered whether the Woollin direction on intention constituted a rule of substantive law, dismissing the appeals.

Facts

The victim, J, was attacked outside a club in the early hours of the morning and his bank card was stolen. The appellants, Matthews (M) and Alleyne (A), together with two other men (D and C), were involved in the events that followed. After M and A unsuccessfully attempted to withdraw money using J’s card, they encountered J again as he tried to flag down passing cars for help (having lost his glasses in the attack). J was forced into the back of C’s car, driven to a bridge, and thrown into the river below. J told his attackers he could not swim before being thrown from the bridge. He drowned. Traces of J’s blood were found in C’s car.

D pleaded guilty to kidnapping and manslaughter and was convicted of murder. C was acquitted of murder and robbery, having pleaded guilty to kidnapping and manslaughter. M and A denied involvement in the events on the bridge, claiming they had been dropped off earlier, but there was evidence placing all four on the bridge. The Crown’s case was that the youths intended to silence J by drowning him to prevent identification, the death of a non-swimmer thrown into a wide river being a virtual certainty.

Issues

The central issue on appeal was whether the trial judge had misdirected the jury on intent for murder. Specifically, whether the House of Lords’ decision in R v Woollin [1999] 1 AC 82 had transformed the direction on foresight of virtual certainty from a rule of evidence into a rule of substantive law, such that appreciation of virtual certainty of death or serious bodily harm itself constituted the necessary intent.

Arguments

Counsel for both appellants submitted that the trial judge’s direction on intent had been a misdirection. It was argued that Woollin had shifted the position from a rule of evidence to a rule of law, and that the judge had gone too far in telling the jury they could find the necessary intent proved provided they were satisfied that each defendant had an appreciation of the virtual certainty of death.

Judgment

The Court of Appeal held that the law had not yet reached a definition of intent in murder framed in terms of appreciation of virtual certainty. Woollin was not to be regarded as having laid down a substantive rule of law. The court noted that Woollin had treated R v Nedrick [1986] 1 WLR 1025 as being derived from existing law, and the critical direction in Nedrick had been approved subject only to the substitution of the word “find” for “infer”.

The proper direction was that the jury were not entitled to find the necessary intention unless they felt sure that death (or serious bodily harm) was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. The trial judge had gone further than was permitted by effectively equating appreciation of virtual certainty of death with the necessary intent. This amounted to a misdirection.

However, the court observed that once what is required is an appreciation of virtual certainty of death, rather than some lesser foresight of merely probable consequences, there is very little to choose between a rule of evidence and one of substantive law. On the particular facts, the misdirection was held to be immaterial. The appellants’ failure to make any attempt to save J when he was seen to be in trouble, combined with their appreciation that throwing a non-swimmer from the middle of a bridge into a wide river made death a virtual certainty, meant it was impossible to see how the jury could not have found intent to kill. The judge had constantly reiterated throughout his summing up the requirement of an intent to kill.

The court further noted that Woollin had excluded cases of true recklessness where a defendant did not consider the consequences at all, and that a direction on recklessness in the present case would have been unnecessary and confusing. There was no lurking doubt as to the safety of the convictions. The appeals were dismissed.

Implications

The decision confirms that the Nedrick/Woollin direction remains a rule of evidence rather than a substantive rule defining intention in murder. A jury is entitled, but not obliged, to find intention where they are sure that death or serious bodily harm was a virtual certainty and the defendant appreciated that fact. It is a misdirection to tell the jury they may find intent proved simply upon establishing appreciation of virtual certainty, as this collapses the distinction between foresight and intention.

Nonetheless, the court acknowledged the fine practical line between the evidential and substantive formulations once the threshold of virtual certainty is required. This case is significant for practitioners in criminal law because it reaffirms the correct formulation of the Woollin direction, clarifies that English law has not (at least at that time) adopted a substantive definition of intention in terms of virtual certainty, and demonstrates that a misdirection of this kind may nevertheless not render a conviction unsafe where the facts inevitably lead to the same conclusion. The decision is important for trial judges directing juries in oblique intent murder cases and for appellate review of such directions.

Verdict: Appeals dismissed. Although the trial judge’s direction on intent amounted to a misdirection by effectively treating appreciation of virtual certainty of death as a substantive rule of intention, the misdirection was immaterial on the facts and the convictions for murder were safe.

Source: R v Matthews and Alleyne [2003] EWCA Crim 192