In a murder case the Court of Appeal reaffirmed the direction on intention as set out in R v Woollin (1999) 1 AC 82.An appeal by two appellants ('M' and 'A') against convictions after trial. Both appellants were convicted of robbery, kidnapping and murder. Two other men ('D') and ('C') were arrested with the appellants. D pleaded guilty to kidnapping and manslaughter and accepted his guilt on the robbery count during the trial. However he was also convicted of murder. C was acquitted of robbery and murder having pleaded guilty to kidnapping and manslaughter. On leaving a club in the early hours of the morning the victim ('J') was attacked and his bank card was stolen. The attackers left and M and A tried unsuccessfully to obtain money from a cash point with J's card. J had lost his glasses in the attack and was trying to obtain help by flagging down a car when the attackers passed by. They forced J into the back seat of C's car and threw him off a bridge into a river. J could not swim and drowned. Traces of J's blood was found in the back of C's car. A and D admitted to the initial attack and both said that M was involved. A and M claimed that they had been dropped off after the attack and knew nothing about subsequent events. There was evidence against all four that they were each present on the bridge when J was thrown into the river. D gave evidence that J had said he could not swim before being thrown off the bridge. The Crown's case was that the youths had been determined to silence J by drowning him to prevent him identifying them as his robbers. Therefore the case was put on the basis that the death of a non-swimmer thrown off the middle of the bridge into a wide river was a virtual certainty. D expressly said that J's death had been unintended and accidental. It was submitted on appeal on behalf of both appellants that the judge's direction on intent had been a misdirection. It was submitted that the House of Lords in R v Woollin (1999) 1 AC 82 had moved away from a rule of evidence to a rule of law.HELD: (1) The law had not yet reached a definition of intent in murder in terms of appreciation of virtual certainty. Woollin (supra) was not regarded as yet reaching or laying down a substantive rule of law. Woollin as a whole found that R v Nedrick (1986) 1 WLR 1025 had been derived from existing law at the time and that the critical direction in Nedrick had been approved subject to the change of the word "infer" to "find". In those circumstances the judge in the present case had gone further than permitted in telling the jury they could find the necessary intent of murder proved provided that they were satisfied that each defendant had an appreciation of the virtual certainty of death. (2) The proper direction should have been in the terms that the jury were "not entitled to find 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 that the defendant appreciated that such was the case." However, once what was required was an appreciation of virtual certainty of death, and not some lesser foresight of merely probable consequences, there was very little to choose between a rule of evidence and one of substantive law. (3) On the particular facts of this case, reflected in the judge's directions, the question of the appellants' intentions to save J from drowning highlighted the irresistible nature of the inference or finding of intent to kill. If the jury appreciated the virtual certainty of J's death when they threw him off the bridge and also that they then had no intention of saving him from such death, it was impossible to see how a jury could not have found that the appellants intended J to die. The jury could not possibly have misunderstood the judge's directions to them. He had throughout his summing up constantly repeated the need for an intent to kill. (4) The Judge's form of Nedrick/Woollin direction had amounted to a rule of substantive law, and whilst, on the present state of the authorities, that was a misdirection, in the circumstances of the case that misdirection was immaterial. (5) There was no lurking doubt as to the safety of the convictions. The appellants had not been willing, as D and C were, to put forward the defence that it was a prank that had gone wrong and the death was an unintended accident. The jury were best placed to evaluate the evidence of cross-examination on what the appellants appreciated of the consequences of throwing a non-swimmer off a bridge. When J was seen to be in trouble no attempt to save him was made. Woollin (supra) had excluded the case of true recklessness where a defendant did not consider the consequences at all. A direction in this case on recklessness was unnecessary and would have been confusing. It was for the jury to judge credibility.Appeals dismissed.

[2003] EWCA Crim 192

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