Further, the case of Moloney was difficult in other respects because there was no apparent motive. It is difficult to imagine why this case was used as an example of determining intention, because without any motive, the jury's task was difficult in the extreme. In R v. Hancock and Shankland6, the Moloney guidelines were qualified. In this case, two striking miners pushed a concrete block and post from a bridge into the path of a convoy taking a working miner to the pit. The taxi driver, in whose cab the working miner was travelling, was killed by the concrete post.
In the Court of Appeal, Lord Lane (the Lord Chief Justice), specifically addressing the Moloney guidelines, said that directions to juries should not merely refer to the natural consequences of the accused's voluntary act, but should also refer to the probable consequences of his act. When the case came before the House of Lords, however, Lord Scarman advised that Lord Lane's reformulation of the Moloney guidelines should not be used by trial judges when summing up to a jury because 'their elaborate structure [could] create difficulty'.
Instead, Lord Scarman suggested that: "guidelines should avoid generalisation so far as is possible and encourage the jury to exercise their common sense in reaching what is their decision on the facts". 7 Lord Scarman felt that jurors should receive specific guidance on the issue of probability, and should be informed that the greater the probability of a consequence occurring, the more likely it is that the consequence was foreseen, and thus the greater probability that the consequence was intended.
In Moloney Lord Bridge ascertained that the jury would be entitled to infer intention only when the accused foresaw the probability of the result occurring as a 'moral certainty' or 'little short of overwhelming'. However, in Hancock and Shankland the Court of Appeal spoke of the 'high likelihood' of the consequence occurring. Lord Bridge in Moloney suggested that the jury should be as whether the accused foresaw the consequence as a 'natural' result of his actions whereas Lord Lane in Hancock retreated from this position – did the defendant appreciate that there was a high degree of likelihood of death or serious injury?
If so, then the jury were entitled to draw the conclusion that the defendant intended death or serious injury. The case of R v Nedrick8  took steps to clarify the law and produced the model direction on intention wherever a simple direction is not appropriate. The facts of the case are very similar to those in Hyam. In this instance, a man poured paraffin through the letterbox of a woman against whom he bore a grudge, and lit it. He gave no warning. The woman's twelve-year-old son died in the resulting fire.
Again (as in Moloney), the jury were asked to consider two questions: i. How probable was the consequence which resulted from the defendant's voluntary act? ii. Did he foresee that consequence? 9 If the jury are satisfied in the affirmative in both parts of this test, then they may infer intention, but that is all. Intention is not proven. If the jury accept that the defendant intended the action from that inference, by reference to all the evidence, then (and only then) is intention proved.
It is the jury's acceptance of this fact that is equivalent to proof that it existed, nothing else. Lane suggests that, where a simple direction on intent is insufficient; "The jury should be directed 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 defendants actions and that the defendant appreciated that such was the case. "
In many ways, this is a stricter test than Hancock, limiting the aspect of probability to 'a virtual certainty'. The 'virtual certainty' test in Nedrick has now been followed by the House of Lords but simplified in Woollin10. The appellant lost his temper and threw his three-month-old son on to a hard surface. His son sustained a fractured skull and died. The appellant was charged with murder. The trial judge directed the jury along the lines of Nedrick but also said If you…..
are quite satisfied that he was aware of what he was doing and must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder The appellant's substantial point of appeal was that in directing the jury in terms of 'substantial risk', the judge unacceptably enlarged the mental element of murder.
Giving judgment in the Court of Appeal, Roch LJ observed about Nedrick at page 107, that although the use of the phrase 'a virtual certainty' may be desirable and necessary, "it is only necessary where the evidence of intent is limited to the admitted actions of the accused and the consequences of those actions. " The House of Lords is Woollin did not agree with the Court of Appeals decision, and concluded that giving a direction in accordance with Nedrick would be appropriate in any case in which the defendant may not have desired the result of his act.
The House of Lords approved the model direction in Nedrick, holding that the trial judge had made a material misdirection in the terms of "substantial risk". However they did seek to make three observations as to the alteration of the test. Lord Steyn thought that the 2 questions suggestion by Lord Lane that the jury might find it useful to ask themselves (how probable the consequences resulting from the defendants voluntary act were, and if they had been foreseen by the accused) only detracted from the clarity of the direction and would rarely, if ever, be useful.
The words 'to infer' in the model direction were to be replaced by the 'words to find'. Thirdly, in the paragraph which states: "Where a man realises that it is for all practicable 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 desired or wished it to happen. The decision is one for the jury to be reached upon a consideration of all the evidence. "
Lord Hope stated that whereas the last sentence should always be made to the jury and is clearly correct, the remainder of the paragraph formed no part of the model direction. It would therefore appear that the present state of the law is a consolidation of the Nedrick test, subject to the alterations made by Woollin. Despite clarifying how the meaning of intention should be directed to the jury, the courts have still refrained from providing an actual definition of intention, despite the fact that the ordinary, everyday meaning of the word provides a very narrow concept of murder.
Since the decision is Nedrick the law concerning intention has been considered in several reports. The terms used by the Law Commission in the Draft Criminal Code: 'a person acts "intentionally" with respect to … a result when he acts in order to bring it about or being aware that it will occur in the ordinary course of events'. Following Professor J. C. Smith's argument in his article, 'A Note on Intention'11, this definition has been altered.
The 'latest' definition of intention, as endorsed by the Law Commission, is now to be found in the Draft Criminal Law Bill clause 14(1)(6), which states that intention can be attributed to a person 'although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result'. If this was enacted, then statute would supersede the judicial definition of intention. Until such times as the meaning of intention is enacted in a statute, then the law at present is as stated in Nedrick.
The jury will retain its central role, deciding in each case whether a defendant intended to kill or intended to cause grievous bodily harm, regardless of whether the legal definition of intention is settled by the judiciary or the legislature. Nedrick makes it clear that there is a need to prove intention and that the test is a subjective one. "Intention", however, remains undefined and is to be determined by the jury through the operation of this subjective test.