R v Moloney [1985] AC 905

A drunken ex-soldier killed his stepfather during a foolish shotgun 'challenge'. The House of Lords quashed his murder conviction, substituting manslaughter, and clarified that foresight of probable consequences is evidence from which intent may be inferred, not itself intention.

Facts

In the early hours of 22 November 1981, the appellant, a 22‑year‑old serving soldier, fatally shot his stepfather, Patrick Moloney, with a twelve‑bore shotgun at a range of about six feet. The police surgeon found that “the whole of the skull had in fact been destroyed, leaving just the root of the neck.”

The appellant had been brought up by the deceased and had changed his name to Moloney. The evidence at trial was that they had “a happy and loving relationship.” On 21 November 1981, a family dinner party was held to celebrate the ruby wedding anniversary of the appellant’s grandparents. The evening was convivial and “drink flowed freely.” Both the appellant and his stepfather drank heavily.

By around 1 a.m. the family had gone to bed, leaving the appellant and his stepfather downstairs, “laughing and talking in an apparently friendly way.” Shortly before 4 a.m. a shot was heard. The appellant telephoned the police saying:

“I’ve just murdered my father.”

Two police officers arrived at 4.09 a.m. The appellant smelled strongly of alcohol, his eyes were bloodshot and he was unsteady, but calm. The deceased sat dead in an armchair with one shotgun between his knees and another, from which the fatal shot had been fired, lying on a couch.

At the police station, Constable Dighton said the appellant made oral remarks, including:

“I didn’t want to kill him. It was kill or be killed. I loved him, I adored him.”

and later:

“It all started because I wanted to leave the army. I went and got the guns and took the cartridges out of the cupboard. We both started to load the guns. I was quicker than him. He’s got a bad arm; I should have realised. I loaded the gun before him and pointed it to him. I said: ‘You’ve lost.’ He said: ‘You wouldn’t dare pull the trigger.’ I did and he’s dead. If I hadn’t, he would have done and he would have been sitting here instead of me.”

These statements were not contemporaneously written; a note was made later by the officer.

At 5.45 a.m. a doctor found the appellant’s blood alcohol level to be 157 mg per 100 ml. After medical examination the appellant gave a detailed written, signed statement to detectives. In it he described an intoxicated dispute about his wish to leave the army, which shifted to a boastful argument over shotgun prowess. He recounted that both men agreed to a loading “race” with their shotguns, and continued:

“I inserted the cartridge in the right hand barrel, closed the gun, took off the safety catch and pulled the trigger of the left hand barrel, and told him he’d lost. … He looked at me and said: ‘I didn’t think you’d got the guts, but if you have pull the trigger.’ I didn’t aim the gun. I just pulled the trigger and he was dead. I then went and called the police and told the operator I had just murdered my father, and that’s the story.”

When charged, the St Neots Magistrates’ Court held on 12 February 1982 that there was “no prima facie case of murder” and committed him for trial for manslaughter only. The Crown nevertheless preferred an indictment for murder. A plea of guilty to manslaughter was tendered but “was not acceptable to the Crown” and the case proceeded to trial before Stephen Brown J and a jury, resulting on 17 September 1982 in a conviction for murder.

The appellant did not dispute his liability for manslaughter. His true defence was that he had not intended to kill or cause really serious harm and had not realised the gun was aimed at his stepfather when he pulled the trigger. He stated:

“I never deliberately aimed at him and fired at him intending to hurt him or to aim close to him intending to frighten him.”

and later,

“In my state of mind I never considered that the probable consequence of what I might do might result in injury to my father. I never conceived that what I was doing might cause injury to anybody. It was just a lark.”

Despite lack of evidential foundation, trial counsel advanced self‑defence based on the disputed early statements. The judge, “very prudently no doubt,” left self‑defence to the jury, though Lord Bridge later observed that “there was not a scintilla of evidence” to support it and expressed concern that it may have operated adversely to the appellant.

The Court of Appeal (May LJ, Boreham and Nolan JJ) dismissed the appeal on 16 December 1983 but certified a point of law of general public importance.

Issues

Certified question on malice aforethought

The Court of Appeal certified the following question for the House of Lords:

“Is malice aforethought in the crime of murder established by proof that when doing the act which causes the death of another the accused either:

(1) intends to kill or do serious harm; or

(2) foresees that death or serious harm will probably occur, whether or not he desires either of those consequences?”

The appeal therefore presented two interlinked issues:

• Whether malice aforethought (the mental element in murder) can be established by proof that the accused merely foresaw death or serious harm as a probable consequence of his act, even if he did not desire it.
• Whether the trial judge’s direction equating foresight of probable consequences with intent misdirected the jury and rendered the murder conviction unsafe.

Judgment

Outcome of the appeal

The House of Lords unanimously allowed the appeal. The formal order of the House stated that the Court of Appeal’s order and the verdict of murder were to be set aside, save for the grant of legal aid, and that a verdict of manslaughter be substituted. The case was remitted to the Court of Appeal (Criminal Division) to determine the appropriate sentence, and “the Certified Question” was “answered in the negative.”

Lord Hailsham LC summarised the disposal:

“the disposal of this case cannot be in doubt. The appeal must be allowed. The verdict of murder must be set aside. A verdict of manslaughter must be substituted. The case must be remitted to the Court of Appeal (Criminal Division) to determine the appropriate sentence.”

Lord Bridge of Harwich delivered the main reasoning, with whom the other Law Lords agreed.

Error at trial and unsafety of the murder verdict

Stephen Brown J had correctly told the jury that to convict of murder the prosecution had to prove that the appellant “intended either to kill his stepfather or to cause him some really serious bodily injury.” However, he also directed the jury on intent using Archbold’s definition:

“When the law requires that something must be proved to have been done with a particular intent, it means this: a man intends the consequences of his voluntary act, (a) when he desires it to happen, whether or not he foresees that it probably will happen; and (b) when he foresees that it will probably happen, whether he desires it or not.”

This direction treated foresight that a consequence would “probably” happen as equivalent to intent. Lord Bridge identified several difficulties:

• The real issue for the jury was simple: did the appellant, when pulling the trigger, realise that the gun was pointing straight at his stepfather’s head? If so, murder was made out; if there was a reasonable doubt, the correct verdict was manslaughter.
• The defence evidence squarely raised the possibility that, in his intoxicated and playful state, it “never entered the appellant’s head” that the gun was pointing at his father when he pulled the trigger.
• There was “not a scintilla of evidence” to justify a self‑defence direction, yet counsel argued it and the judge left it, potentially distracting the jury from the real issue.
• When the jury asked for “clarification of intent” after several hours, the supplementary direction did not sharpen the distinction between intent and foresight, and recast the Crown’s case in terms of what the accused “must” have known, while the defence position was very briefly and generally put.

Lord Bridge concluded that, especially in light of the jury’s expressed confusion and the way intent was explained, the murder verdict was “unsafe and unsatisfactory” and had to be set aside.

Foresight of consequences and intention

The House examined the modern authorities on malice aforethought and intent, including Reg v Vickers, Director of Public Prosecutions v Smith, and Reg v Hyam. Lord Bridge identified problems arising from attempts to equate foresight of probable consequences with intention as a matter of substantive law.

The trial judge’s direction followed the Archbold definition, which Lord Bridge quoted and then criticised as “unsatisfactory and potentially misleading”:

“Although in its terms applicable to any offence of specific intent, this so-called definition must be primarily derived from Reg. v. Hyam… they suggest to me that the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent. Thus, I regard the Archbold definition of intent as unsatisfactory and potentially misleading and one which should no longer be used in directing juries.”

Lord Bridge emphasised that foresight is conceptually distinct from intention and that degrees of probability cannot sensibly be converted into a rule of substantive law:

“I do not… consider… that the fact that a state of affairs is correctly foreseen as a highly probable consequence of what is done is the same thing as the fact that the state of affairs is intended.”

“I am firmly of opinion that foresight of consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs, not to the substantive law, but to the law of evidence.”

Section 8 of the Criminal Justice Act 1967, reversing the effect of Smith, was viewed as restoring the issue of intention to the jury as a matter of inference from all the evidence, rather than as a matter of legal presumption.

Guidance on directions to juries about intention

Lord Bridge laid down clear guidance on how judges should direct juries on intent, especially in murder cases. He stated a “golden rule”:

“The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding.”

He suggested that in most murder and wounding‑with‑intent cases, particularly those involving a direct attack with a weapon, no further explanation beyond stating that the Crown must prove an intent to kill or to cause really serious bodily harm will be required.

In the rare case where reference to foresight is genuinely necessary, Lord Bridge endorsed a simple evidential direction drawn from pre‑Smith authority, especially R v Steane. The judge should invite the jury to consider two questions:

“First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.”

Thus foresight of a “natural” consequence is strong evidence from which a jury may infer intent, but does not itself automatically constitute intent as a matter of law.

Rejection of an “aimed at someone” requirement and of a broad recklessness test

Lord Bridge also addressed two uncertainties which had arisen from Hyam:

• Whether liability for murder requires that the act be “aimed at someone.” Referring to Viscount Kilmuir’s phrase in Smith and Lord Hailsham’s use of it in Hyam, Lord Bridge rejected this as a useful general criterion, giving the example of a terrorist who plants a bomb in a public building and knows a bomb disposal squad is likely to attend.
• Whether an intention “to expose a potential victim” to a “serious risk” of death or grievous bodily harm, as described in Lord Hailsham’s third category in Hyam, should count as intent for murder. Lord Bridge thought this blurred the line between intention and recklessness and “comes dangerously near” to the mental element in reckless driving offences, such as described by Lord Diplock in Reg v Lawrence. Recklessness, even as to a serious risk of physical injury, is not sufficient for murder.

He stated bluntly that “no one has yet suggested that recklessness can furnish the necessary element in the crime of murder.”

Implications

This decision significantly clarified the law on the mental element in murder and jury directions on intent:

• It confirms that the mental element (malice aforethought) remains an intent to kill or to cause really serious bodily injury, in line with Reg v Vickers and as reaffirmed in Reg v Cunningham.
• It decisively rejects the Archbold formulation equating foresight of probable consequences with intent, holding that it is “unsatisfactory and potentially misleading” and “should no longer be used in directing juries.”
• It re‑locates foresight firmly within the law of evidence: foresight of a natural consequence can justify an inference of intent, but does not itself amount to intention as a matter of substantive law.
• It endorses a conservative and restrained approach to directions on intent: judges should normally rely on the everyday meaning of “intention” and avoid complex definitions, resorting to the two‑question “natural consequence” inference only where strictly necessary.
• It disapproves of relying on an “aimed at someone” requirement and of broad formulations based on “serious risk” which risk conflating murder with offences based on recklessness, particularly in driving cases.

In the appellant’s own case, the House highlighted how misdirections and unnecessary complications (including an unfounded self‑defence issue and over‑elaborate intent directions) had obscured the simple factual question the jury needed to decide. By substituting manslaughter, the House underscored that culpable recklessness and grossly irresponsible conduct, even with tragic consequences, do not automatically constitute murder absent the requisite intent.

Verdict: Appeal allowed; the Court of Appeal order and the murder verdict were set aside (save for the grant of legal aid), a verdict of manslaughter was substituted, the certified question was answered in the negative, and the case was remitted to the Court of Appeal (Criminal Division) to determine sentence.

Source: R v Moloney [1985] AC 905