R v Nedrick [1986] 1 WLR 1025

Appellant Nedrick, after threatening to "burn out" a woman, set fire to her house; a child died and he was convicted of murder. The Court of Appeal substituted manslaughter, holding the jury had been misdirected on intent and articulating the virtual-certainty test.

Facts

On 25 January 1985 at Stafford Crown Court, Ransford Delroy Nedrick was convicted by a majority verdict of murder and sentenced to life imprisonment. The jury were discharged from returning verdicts on two further counts of arson with intent to endanger life and arson being reckless as to life being endangered.

The Crown’s case was that the appellant bore a grudge against a woman, Viola Foreshaw. After making threats that he would “burn her out”, he went to her house in the early hours of 15 July 1984, poured paraffin through the letter-box and onto the front door, and set it alight without giving any warning. The house was burnt down and one of Foreshaw’s children, twelve-year-old Lloyd, died of asphyxiation and burns.

After initially denying responsibility in several interviews, the appellant eventually admitted to the police that he had started the fire as described, adding:

“I didn’t want anyone to die, I am not a murderer; please tell the Judge; God knows I am not a murderer.”

When asked his reason, he replied:

“Just to wake her up and frighten her.”

At trial, his defence, rejected by the jury, was that he had neither started the fire nor made any such admissions.

Issues

The sole effective ground of appeal was whether the trial judge misdirected the jury on the intent necessary to establish murder. In particular, the Court of Appeal had to consider:

• Whether the direction given equated foresight of serious bodily harm with an intention to cause it.
• How a jury should be directed on the mental element of murder in cases where the defendant performs a manifestly dangerous act, but his primary desire or motive may not have been to harm anyone.
• How the guidance from the House of Lords in Moloney and Hancock should be crystallised into a workable jury direction.

Judgment

Misdirection on intent

The trial judge had directed the jury as follows:

“It is not necessary to prove an intention to kill; the Crown’s case is made out if they prove an intention to cause serious injury – that is sufficient ….. There is, however, an alternative state of mind which you will have to consider. If when the accused performed the act of setting fire to the house, he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it – desire to bring that result about – he is guilty or murder. If you are sure that he did the unlawful and deliberate act, and, if you are sure that that was his state of mind, then, again, the prosecution’s case in the alternative of murder would be established.’

This direction preceded the publication of the speeches in the House of Lords in Moloney ((1985) AC 905) and Hancock ((1986) 2 V.L.R. 357). In light of those authorities, the direction was held to be plainly wrong. It reflected a passage in Archbold which equated foresight with intention, a proposition expressly disapproved in Moloney, where Lord Bridge stated that foresight of consequences, as an element bearing on the issue of intention in murder, belongs to the law of evidence rather than the substantive law.

The Court emphasised that the judge was not to blame for having directed the jury in accordance with the then current edition of Archbold.

The correct mental element for murder

The Court held that the jury’s task regarding the mental element in murder is simply to decide whether the defendant intended to kill or to do serious bodily harm, having regard to all relevant circumstances, including what the defendant said and did.

In most cases, particularly those involving a direct attack on the victim, a straightforward direction that intent is to kill or to cause serious bodily harm will suffice, because the defendant’s intent generally corresponds with his desire or motive. However, in some cases, including the present, the defendant performs a manifestly dangerous act and death results, even though his primary desire may not have been to harm anyone. In such cases, further assistance to the jury is required.

Intention distinguished from desire

The Court considered the need to explain to juries that a person may intend to achieve a result without desiring it. Citing Lord Bridge’s illustration in Moloney at page 926E, the judgment quoted:

“A man who, at London Airport, boards a place which he knows to be bound for Manchester, clearly intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit.”

The Court explained that the man who knowingly boards the Manchester aircraft “wants” to go there in the sense that boarding is a voluntary act; his desire to leave London overrides his desire not to go to Manchester, and when he decides to board he forms the intention to travel to Manchester.

Probability and foresight after Moloney and Hancock

Referring to Hancock, the Court noted that the Moloney guidelines require an explicit reference to probability. Lord Scarman had stated at page 364G:

“They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.”

To assist juries in determining whether the defendant had the necessary intent, it may be helpful for them to ask:

• How probable was the consequence which resulted from the defendant’s voluntary act?
• Did the defendant foresee that consequence?

If the defendant did not appreciate that death or really serious harm was likely to result from his act, he could not have intended to bring it about. If he realised there was only a slight risk to the victim, it may be easy for a jury to conclude that he did not intend that result. Conversely, if the jury are satisfied that the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, that fact may support an inference that he intended to kill or cause serious bodily harm, even if he had no desire for that result.

The Court referred again to Lord Bridge in Moloney at page 925H:

“…. 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”

and noted his further expressions at page 926F (“moral certainty”) and at page 929B:

“… will lead to a certain consequence unless something unexpected supervenes to prevent it”

The virtual-certainty direction

The Court crystallised the effect of the House of Lords authorities into a practical direction. Where the simple direction on intent is insufficient, juries in murder cases should be told that they are not entitled to infer the necessary intention unless they feel sure that:

• Death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions; and
• The defendant appreciated that such was the case.

Where a person realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have wished it. Ultimately, the decision remains one for the jury, to be reached upon consideration of all the evidence.

Outcome

On 20 May, the Court of Appeal declined to apply the proviso. It substituted a verdict of guilty of manslaughter for the original verdict of murder and, under section 3 of the Criminal Appeal Act 1968, imposed a sentence of fifteen years’ imprisonment. In this judgment, the Court set out its reasons for that decision, focusing on the misdirection regarding intent and providing guidance for future cases.

Implications

This decision clarifies how juries should be directed on intent in murder cases involving indirect or oblique intention. It confirms that foresight of consequences is evidence from which intent may be inferred but is not itself equivalent to intent. The Court adopts a “virtual certainty” test: only where death or serious injury was a virtual certainty, and the defendant appreciated that fact, may a jury be entitled to infer the necessary intent for murder.

The case therefore provides structured guidance, building on Moloney and Hancock, for judges dealing with offences where a dangerous act leads to death but the defendant’s primary motive may not have been to cause harm. It has enduring importance in defining the correct approach to oblique intention in the law of murder.

Verdict: The Court of Appeal allowed the appeal in part, declined to apply the proviso, substituted a verdict of guilty of manslaughter for the murder conviction, and imposed a sentence of fifteen years' imprisonment under section 3 of the Criminal Appeal Act 1968.

Source: R v Nedrick [1986] 1 WLR 1025