Lord Diplock has observed: It was the actual intention of the offender himself that

the objective test was designed to ascertain.1 It has since been accepted that the
maxim that every person is supposed to intend the natural and probable
consequences of her own acts is unacceptable, because it incorrectly holds that the
probability of the outcome is always sufficient to justify the conclusion that the
outcome was intended. The maxim was phased out of use, because it confused one
kind of evidence of the mental state with the mental state itself.2 The probability of
the alleged non-target crime following the target crime is a kind of evidence and
nothing more.3 If the probability of the collateral crime following the target crime was
a virtual certainty, then the jury can infer from this evidence that the defendants
claim that she did not intend the consequences of her action is a lie. Often one can
only judge whether the defendant intended a crime by asking whether anyone in her
shoes would have realised that the collateral crime was a virtual certainty upon certain
conditions arising and whether there is any reasonable interpretation of her actions
other than the hypothesis that the crime was within the purpose she had.
The natural probable consequence maxim is no longer used to infer intention.4
The courts now require nothing short of foresight of a virtual certainty.5 However,
virtual certainty in a technical sense is nothing more than a high degree of probability
from which indirect or direct intention can be inferred.6 If the probability of the
consequence is 99 out of 100, it is a virtual certainty. An inference of indirect
intention is a finding of oblique intention rather than direct intention. X throws her
own child from the fourth floor of a burning building as it is the only escape route, but
her direct purpose is to save her child who she loves dearly from being killed by the
fire. X foresees the childs death as a virtually certain consequence of throwing her
from the fourth floor. In this scenario direct intention cannot be inferred from her
conduct, as the evidence clearly shows that she only obliquely intended to kill the
child. Xs direct intention (purpose/desire) was not to kill her child. Instead, Xs

1 Lord Diplock also said: the objective test did not define the relevant intention as to the consequences of a voluntary act. It was no
more than one means of ascertaining the relevant intention, to which the Criminal Evidence Act 1898 added anotherthe defendants
own evidence of what his actual intention was. See Hyam v. D.P.P. [1975] A.C. 55 at 94 per Lord Diplock. Before the enactment of
the Criminal Evidence Act 1898, D was not allowed to testify as to what his or her intention was.
2 Baker, TBCL, at 114 et seq.
3 Johns v. The Queen [1980] 143 C.L.R. 108 at 131 per Mason, Murphy and Wilson, J.J.
4 Section 8 of the Criminal Justice Act 1967 was enacted to prevent it being used for such purposes.
5 R. v. Woollin [1999] 1 A.C. 82 at 96G per Lord Steyn.
6 To the extent that the probability is so low as to make the defendant only subjectively reckless, it would provide only evidence of
recklessness. Similarly, if the probability of the consequence is very low and the defendant had no foresight of the probability that
would be only evidence of negligence. Cf. R. v. Hancock [1986] A.C. 455 at 473F per Lord Scarman. See also the discussion in People v.
Smith (1997) 57 Cal. App. 4th 1470 at 1473 where it was said: A person acts with an oblique intention when he or she knows that the
result is practically certain to follow from his or her conduct, regardless of the desired result. This rules out the natural and probable
consequences test as a measure of an oblique intention.

direct intention was to save the childs life, but the only option available was to throw
the child from the burning building. She obliquely intended to kill the child, if she
foresaw the death of the child as a virtually certain consequence of her actions. Even
though duress of circumstances is not a defence to murder, the defence of necessity
might be in these circumstances. 7 Coupled with this, it is very unlikely that a
prosecution would be brought against someone who has done all she could to save a
life, even though she obliquely intended to kill.
If the jury infer that X did in fact foresee the death as a virtually certain
consequence of her actions, then the substantive doctrine of oblique intention could be
invoked to ground a conviction.8 The oblique intention doctrine applies, because
oblique intention is a substantive fault element for the crime of murder.9 This is
different to using evidence of foresight of virtual certainty to infer direct intention. In
the latter situation, evidence that the defendant foresaw the consequence as a virtual
certainty could only be used to infer direct intention, if it was clear that the defendant
did not directly intend the opposite. In the hypothetical above, it was clear that the
mother, X, directly intended to save her childs life, although she obliquely
(indirectly) intended to kill the child, because she foresaw its death as a virtually
certain consequence of throwing it from the fourth floor.
The grey area is where it can be shown that the defendant at the very least
foresaw the consequence as a virtual certainty; but it is not clear whether she directly
intended the consequence.10 In this situation, the jury can use the evidence that D
foresaw the consequence as virtually certain to infer either direct or indirect intention.

7 A (Children) (Conjoined Twins: Medical Treatment) (No.2) [2001] 1 F.L.R. 267; cf. Gillick v. West Norfolk and Wisbech AHA [1986] A.C.
112; R. v. Fretwell (1862) Le. & Ca. 161; R. v. Salford HA Ex p. Janaway [1989] A.C. 537 See also the discussion in Williams, op. cit. supra,
note 81 at 368-369.
8 R. v. Howe [1987] A.C. 417; R. v. Ryan [2013] S.C.C. 3.
9 In Hyam v. D.P.P. [1975] A.C. 55 at 75, Lord Hailsham said: even if it be conceded that foresight of the [highly] probable
consequences [his Lordship should have said: foresight of virtually certain consequences] is not the same thing as intention, it can,
nevertheless, be an alternative type of malice aforethought, equally effective as intention to convert an unlawful killing into murder.
[I]t can be justified on the grounds that such knowledge is itself a separate species of malice aforethought, and not simply another way
of describing intention. For applications of oblique intention as a substantive fault doctrine, see In re Stonewall F. (1989) 208
Cal.App.3d 1054 at 1062 fn. 7 where the court said: Some legal theorists, Bentham among them, have recorded this divergence by
distinguishing (as oblique intention), mere foresight of consequences from direct intention where the consequences must have been
contemplated by the accused not merely as a foreseen outcome but as an end when he set out to achieve, or as a means to an end,
and constituted at least part of his reason for doing what he did. The paradigm arson case exemplifying an oblique intention
occurs when the culpable party burns his own house knowing, by virtue of its proximity, that his neighbours house is also certain to
burn. (See People v. George (1941) 42 Cal.App.2d 568, 571-572 and the discussion of it in the text; cf. People v. Hiltel (1901) 131 Cal. 577.)
It is the knowledge of this near certain causal consequence which provides a major distinction between this form of intention and
recklessness. See also Mata-Medina v. People (2003) 71 P. 3d. 973 at 978, where it was held that the mens rea for second-degree murder
required it be proved that D be aware that his conduct is practically certain to cause the result. See also People v. Fabris (1995) 31 Cal.
App. 4th 685 at 698. See further, Glanville Williams, Oblique Intention, (1987) 46 Cambridge L.J. 417 at 420; Glanville Williams,
The Mens Rea for Murder: Leave it Alone, (1989) 105 L.Q.R. 387.
10 See the facts in R. v. Matthews [2003] 2 Cr. App. R. 462 at 476, where the objective evidence showed that Ds at least obliquely
intended to kill. However, in that case it was not clear whether they obliquely intended to kill only or whether they in fact directly
intended to kill. The Court of Appeal held: We think that, once what is required is an appreciation of virtual certainty of death, and
not some lesser foresight of merely probable consequences, there is very little to choose between a rule of evidence and one of
substantive law. In such a case, because there is no evidence strongly supporting one finding over the other, the jury can use the
evidence of Ds foresaw that consequence of her action was a virtual certainty to infer either direct or oblique intention.

Take the case where Y decides to burn down his terrace house to collect the
insurance. If the objective facts show that it was virtually certain that the
neighbouring houses also would be burnt down, and that Y foresaw this as a virtual
certainty, the jury can infer that Y obliquely intended to burn down those houses.
However, the jury might, instead, infer that Y directly intended to burn the
neighbouring houses down. Y might argue that she did not intend to burn the
neighbouring houses, but merely intended to burn her own. Nonetheless, the jury need
not accept her story. It can conclude that Y not only foresaw that the other houses
would be damaged, but directly intended the consequence. In this situation, the jury
uses evidence of foresight of virtual certainty to infer direct intention, because the
evidence does not strongly suggest that Ys direct intention was merely to burn his
own house.
Similarly, if an enraged man throws his three-month-old son down a flight of
stairs, he would not be able to use anger to displace the inference that he directly
intended to kill his son.11 The judge would most likely tell the jury that they are
entitled to find the acts done in so-called blind rage can be found to be purposive, the
anger overcoming the defendants inhibitions rather than his direct intention to kill.
The defendant might argue that he obliquely intended to kill his son only and that is
direct intention was to release his anger, but such an argument would not help him
because it would be an admission of oblique intention. Since oblique intention is an
alternative substantive fault element for murder,12 he would be found guilty in either
case.
Let us revert to the distinction between substantive fault elements and
evidence. It is one thing to say that there was a 99 per centum chance of the baby
dying when it was thrown from the fourth floor, and another to use this evidence to
infer either direct or indirect intention. An expert might be called to attest that it was a
virtual certainty that the child would die, if thrown from the fourth floor. Nonetheless,
this virtual certainty is only a type of evidenceit does not mean that the defendant
herself foresaw this virtual certainty. Nor does it mean she directly intended to kill the
child.13 The objective fact that the death was a virtual certainty is evidence of that fact
alone. The jury have to infer whether or not the defendants mental state was one

See the facts in R. v. Woollin [1999] 1 A.C. 82.
Baker, TBCL.
13 The surgeons in A (Children) (Conjoined Twins: Medical Treatment) (No.2) [2001] 1 F.L.R. 267 did not directly intend to kill the weaker
twin, but they did indirectly intend to kill her. In that case, the defence of necessity provided a defence. See Baker, TBCL at Chapter
24.
11
12

where she foresaw that the virtually certain consequence of throwing the child from
the fourth floor was that it would die. Similarly, the jury have to infer whether the
defendant directly intended to kill. If the evidence does not strongly demonstrate that
the defendant obliquely intended the consequence only, the jury is free to infer either
oblique intention or direct intention. The substantive result is the same either way. A
person found guilty of oblique intention murder, barring some defence, will be
convicted of murder and be subject to a mandatory life sentence. In the case where a
person burns a terrace house that shares walls with adjoining terrace houses, the
objective (evidential) facts are such that the jury are likely to infer, not only that she
foresaw that the other houses would be damaged as a virtual certainty, but that she
directly intended to damage them.
The maxim that a person intended the natural probable consequences of her
actions meant a fortiori she intended the foreseen consequences of her actions.
Coupled with this, in many older cases a finding of foresight itself was held to be
enough to infer intention.14 The law took a wrong turn, because maxims of evidence
such as foresight of probable and possible consequences, not only mirror substantive
criminal law fault elements, but also have been blurred with them for centuries. A
further problem is that recklessness took a long time to emerge as a substantive form
of fault wholly distinct from intention and negligence.15
Since the evidential maxims now mirror the fault elements of recklessness and
negligence more closely, evidence that D foresaw the consequences of her actions as
a possibility or as more probable than not, can only be used to infer recklessness.
Similarly, in most cases where specific intention is required, the objective evidence
will have to be such that the jury are able to infer that the defendant did in fact intend
the consequences of her actions. If D kills V by firing a gun at V who was standing

14 For example, in Williams v. Bayley (1866) L.R. 1 H.L. 200 at 221, Lord Westbury said: But if a man does an act which is attended
necessarily with an inevitable consequence, he must be taken in law to have foreseen that consequence, and, in point of fact, to have
deliberately intended that it should be the result of his action.
15 In R. v. Moloney [1985] A.C. 905 at 913, Lord Hailsham said: I conclude with the pious hope that your Lordships will not again
have to decide that foresight and foreseeability are not the same thing as intention although either may give rise to an irresistible
inference of such, and that matters which are essentially to be treated as matters of inference for a jury as to a subjective state of mind
will not once again be erected into a legal presumption. They should remain, what they always should have been, part of the law of
evidence and inference to be left to the jury after a proper direction as to their weight, and not part of the substantive law. In Hyam
v. D.P.P. [1975] A.C. 55 at 82, Lord Dilhorne said: Whether or not it be that the doing of the act with the knowledge that certain
consequences are highly probable is to be treated as establishing the intent to bring about those consequences, I think it is clear that
for at least 100 years such knowledge has been recognised as amounting to malice aforethought. Glanville Williams writes: A
statement much nearer to the truth is that the law frequentlythough not invariablytreats as intentional all consequences due to that
form of negligence which is distinguished as [subjective] recklessnessall consequences, that is to say, which the actor foresees as the
probable results of this wrongful act. Glanville Williams, Salmond on Jurisprudence, (London: Steven & Sons, 1957) at 413. See also J.
W. Cecil Turner, Russell on Crime (London: Stevens & Sons, 1958) Vol. I, at 35-36; 43-44; Rollin M. Perkins, A Re-Examination of
Malice Aforethought, (1934) 43 Yale L.J. 537. On the conflation of negligence with recklessness, see Jerome Hall, Principles of
Criminal Law, (Indianapolis: Bobbs-Merrill Co. Inc., 1960) at 122 et seq. See also R. v. Mowatt [1967] 3 W.L.R. 1192, R. v. G [2004] 1
A.C. 1034 and the authorities cited therein.

within a metre of D, the jury might infer that she must have intended to kill V.
However, there may be other evidence to allow a jury to draw the opposite
conclusion, such as witness testimony stating that D and V were police officers on
duty together and that D was cleaning her gun at the police station when it
accidentally fired and killed V. The jury might infer that D was grossly negligence in
cleaning her gun in the confines of the police station without checking to see whether
it was loaded, but on the objective facts the jurors would not be able to infer that D
intended to kill V. The jury have to consider all the evidence, witness testimony, the
defendants testimony and then infer what Ds state of mind was. Since only D knows
for sure what she intended or was thinking when she killed, the jury have to infer her
intention from the objective evidence.16
Likewise, a person can intend to kill even though the means she uses make her
chances of succeeding a remote possibility. For example, D might use an airgun that
she knows has a maximum firing range of about 500 yards to try to kill V who is
standing 1500 yards away. Even though D foresees that the likelihood of killing V
with the airgun in these circumstances is a remote possibility, the jury could infer that
she intended to kill V, unless there is evidence to the contrary. D might even confess
that her intention was indeed to kill. There would have to be objective evidence to
show that D intended to kill. To reiterate the point, unless a defendant has confessed,
her intention has to be determined from the objective facts.
If the jury find that D did not intend the criminal consequences of her conduct
and only foresaw those consequences as probable or possible, then it cannot infer that
D directly intended those consequences. The objective facts might demonstrate that D
thought about the risks involved and made a conscious choice to run the risk.
Nonetheless, recklessness can only be inferred where the objective facts show that D
was conscious of the risks involved in acting the way she did. As I said above, the
maxims of foresight of possibility or foresight of probability mirror the substantive
fault element of recklessness. To the extent that these evidential maxims were used in

16 Before parting with the question of intent and recklessness, I would observe that the expressions subjective test and objective
test that were used in the argument, and which have recently come somewhat into favour, are, I think, unfortunate. A mans own
intention is for him a subjective state, just as are his sensations of pleasure or of pain. But the state of another mans mind, or of his digestion,
is an objective fact. When it has to be proved, it is to be proved in the same way as other objective facts are proved. A jury must consider
the whole of the evidence relevant to it as a fact in issue. If an accused gives evidence of what his intentions were, the jury must weigh
his testimony along with whatever inference as to his intentions can be drawn from his conduct or from other relevant facts.
Whatever [D] says, [the jurors] may be able to conclude from the whole of the evidence that beyond doubt he had a guilty mind and a
guilty purpose. But always the questions are what did [D] in fact know, foresee, expect, intend. Vallance v. The Queen (1963) 108
C.L.R. 56 at 83 per Windeyer, J.

the past to infer direct intention17 (and also to uphold a presumption of intention), they
did not necessarily mirror substantive fault elements.
The evidential maxim of foresight of virtual certainty mirrors the substantive
fault doctrine of oblique intention, but it does not mirror the substantive fault doctrine
of direct intention in a purely conceptual sense.18 Nonetheless, evidence of oblique
intention can be used to infer either oblique intention or direct intention.19 So in a case
where it is clear that the defendant obliquely intended to kill, but did not directly
intend to kill the jury would be bound to infer that D obliquely intended to kill. In A
(Children) (Conjoined Twins: Medical Treatment) (No.2),20 the objective evidence
demonstrated that the surgeons did not directly intend to kill the weaker twin.
However, they foresaw that the virtually certain consequence of separating the twins
was that the weaker one would die. It was not their desire to kill the weaker twin, but
they did obliquely intend to kill her. The fact that the court provided the surgeons
with a declaration that the defence of necessity applied to their proposed conduct,
demonstrates that oblique intention without a defence is sufficient for grounding a
murder conviction. (Hence, it is no defence to assert that there was only indirect
intention rather than direct intention).
Similarly, in the hypothetical above where the mother was forced to throw her
young child from the fourth floor of a burning building, it was clear that she did not
directly intend to kill her child. The objective evidence demonstrated exactly the
opposite: that is, that she was trying to save the life her child who was about to be
burnt to death. In such a case, the jury could not use evidence of her oblique intention
to infer intention, because the objective evidence shows that she did not directly
intend to kill her child. This might be a hollow victory for the mother. Since the
doctrine of oblique intention is a substantive fault element in itself. The mother could
be convicted of murder, not that she is likely to be prosecuted. The House of Lords
has held that in cases where it is clear that there was no direct intention, but where
there is evidence of oblique intention, the jury should be directed to consider whether
oblique intention was present.21 This clearly demonstrates that foresight of virtual

17 In D.P.P v. Hyam [1975] 1 A.C. 55 at 65, Lord Hailsham said: Knowledge or foresight is at the best material which entitles or
compels a jury to draw the necessary inference as to intention.
18 John Finnis, Intention and Side-Effects, in R.G. Frey & Christopher W. Morris (eds.) Liability and Responsibility: Essays in Law and
Morals, (Cambridge: Cambridge University Press, 1991) at 32 et seq.
19 R. v. Matthews [2003] 2 Cr. App. R. 462.
20 [2001] 1 F.L.R. 267.
21 In R. v. Woollin [1999] 1 A.C. 82 at 95E, Lord Steyn said: It may be appropriate to give a direction in accordance with Nedrick in
any case in which the defendant may not have desired the result of his act.

certainty is not only an evidential maxim for guiding juries, but also a substantive
fault doctrine. In other words, if the jury have found that D did not directly intend, it
can still infer oblique intention and convict on that basisthe jury cannot be inferring
direct intention, if it has already accepted that D did not directly intend, as was the
case in R. v. Woollin.22
Now that we can see the difference between the roles that foresight plays in
evidential maxims and the role it plays in substantive fault doctrines, we can see how
courts blurring evidential maxims and substantive law has caused confusion.

22 [1999] 1 A.C. 82. Cf. R. v. Matthews [2003] 2 Cr. App. R. 462, where it was not clear on the objective facts whether the defendants
directly intended to kill V or merely obliquely intended to kill V. Since there was ample evidence for the jury to infer that they at least
obliquely intended to kill him, not much turned on the question of whether it was one or the other.