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Fatima Jama

Virtual certainty and foresight of consequences – where are we now?



This article aims to examine the concept of virtual certainty within the context of criminal law in England and Wales, focusing on its application and significance in establishing mens rea.

An example demonstrated in Williams, ‘Oblique Intention’ [1987] 46 C.L.J. 417 at 423 from Hyam [1975] A.C. 55 highlights the need for a place for virtual certainty in criminal law. A man blows up an aeroplane mid-flight in order to claim insurance. It is not his principal purpose to kill the passengers and crew, but rather his ‘intention’ is to gain the insurance money. However, he knows that, by destroying the plane, he will almost certainly cause the deaths of the passengers and crew. He has accepted the inevitability of this outcome, and so is just as morally blameworthy as one who blew up the plane with the intent to cause death. While oblique intention and virtual certainty are separate concepts, the connection between them lies in the recognition that, in certain circumstances, an individual’s awareness of the consequences of their actions can be deemed equivalent to intending those consequences. If the outcome is so foreseeable and likely that it amounts to virtual certainty, the law may attribute intent to the individual, even if they did not directly desire that outcome.

The interpretation and application of virtual certainty in criminal law

Historically, recklessness has involved the conscious disregard of a substantial and unjustifiable risk. The leading case of R v Cunningham [1957] 2 Q.B. 396; (1957) 41 Cr. App. R. 155, CCA involved the defendant removing a gas meter. His act caused a gas leak that resulted in a neighbour being poisoned. He was charged with section 23 of the Offences against the Person Act 1861. The trial judge explained the word ‘maliciously’ to mean general wickedness. The defendant was convicted. The appellate court quashed the conviction on the grounds that the trial judge’s approach was incorrect. The correct test for malice was whether the defendant had either actual intent to cause harm or was reckless as to the possibility of causing foreseeable harm.

Cunningham clarified that recklessness involves both subjective awareness of the risk and a decision to proceed regardless. The accused’s knowledge of the risk, coupled with an indifference to the potential harm caused by his actions, established recklessness. The court observed, ‘In our view it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.’ This case established recklessness as a form of mens rea, broadening the scope beyond direct intent. It introduced the notion that foreseeing the consequences and taking the risk can attribute culpability to an individual under certain circumstances.

The concept of virtual certainty intersects with recklessness in cases where the accused’s actions lead to a highly probable consequence, rendering it virtually certain.

R v Moloney [1985] 1 AC 905 involved a father and stepson, who were both intoxicated at the time of the incident. They engaged in a conversation about their shooting abilities, and in a drunken state, the defendant pointed a loaded shotgun at his stepfather, saying, ‘I bet I can beat you.’ The gun went off accidentally, and the defendant’s stepfather was killed. The primary issue in the case was whether the trial judge’s directions to the jury regarding the mens rea necessary for murder were appropriate. The court ruled that foresight of consequences alone is not sufficient to establish intent for murder. The defendant must have had an intention to cause death or serious bodily harm to be found guilty of murder. Mere foresight of consequences, although an important consideration, does not equate to intent.

Thereafter, R v Nedrick (1986) 83 Cr. App. R. 267 refined the understanding of indirect intention. If a defendant foresaw a virtually certain consequence of their actions and continued regardless, that could equate to intention. The defendant had longstanding issues with another individual. In the middle of the night, he drove to the individual’s home and poured petrol through their letter box, ignited it and caused a fire, killing a child. The defendant was charged with murder. The trial judge directed the jury that if the defendant knew it was highly probable that the act would result in serious bodily harm to someone, even if he did not desire that result, he would be guilty of murder. The defendant was convicted of murder and appealed.

The issues were whether a jury was entitled to deduce intent if they considered a defendant’s actions highly likely to cause death or serious bodily harm; whether the defendant’s foresight of the likely consequences of his act was sufficient to satisfy the mens rea of murder, and whether the trial judge’s direction to the jury that the defendant could be guilty of murder if he knew it was highly probable that serious bodily harm would occur as a result of his act was a misdirection. The appeal was allowed. The court held that the jury should be directed that they were not entitled to infer intention unless they were satisfied that they felt sure that death or serious bodily injury was a virtual certainty as a consequence of the defendant’s actions and that the defendant knew this.

The court should consider two questions: did the jury consider that death or serious injury was virtually certain to occur as a result of the defendant’s actions; and did the defendant foresee the death or injury as virtually certain? If the jury answered ‘yes’ to both these questions, intention could be inferred.

‘… in determining whether the accused had the necessary intent, the Jury may find it helpful to ask themselves, first, how probable was the consequence which resulted from his voluntary act and, secondly, whether he foresaw that consequence; he could not have intended to bring death or serious harm about if he did not appreciate that death or serious harm was likely to result from his act; if he thought that the risk to which he was exposing the deceased was only slight, the Jury may easily conclude that he did not intend to bring about the death; 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’

In R v Woollin [1999] 1 A.C. 82, HL, the defendant killed his 3-month-old son after throwing him onto a hard surface in rage. The judge directed the jury that if they were satisfied that the appellant had realised there was a substantial risk that the child would suffer serious harm, they could convict him of murder. The defendant was convicted of murder and appealed. The conviction for murder was quashed and substituted with one for manslaughter. It was ruled that there had been a misdirection by the judge. The court ruled that ‘By using the phrase “substantial risk” the judge blurred the line between intention and recklessness, and hence between murder and manslaughter. The misdirection enlarged the scope of the mental element required for murder.’

Instead, pursuant to Nedrick, the jury should be directed to consider whether the defendant had foreseen that death or serious injury would be ‘virtual certain’ to result from his voluntary act. Lord Steyn remarked, that ‘it does not follow that “intent” necessarily has precisely the same meaning in every context in the criminal law’, it remains possible that lower levels of foresight could still be a sufficient basis for a legitimate inference in relation to other offences requiring intention. This case introduced the concept of ‘virtual certainty’ explicitly in determining indirect intent. It emphasised that an individual could be held accountable if they foresaw death or serious harm as a virtual certainty resulting from their actions.

In R v. Jogee [2016] UKSC 8, the Supreme Court clarified the law concerning joint enterprise, a situation where multiple individuals are involved in the commission of an offence. The court ruled that mere foresight of the possibility that someone else might commit a crime is not sufficient to establish guilt. Instead, there must be a ‘virtual certainty’ that the crime will be committed by the other person for joint enterprise liability to apply.

This ruling had significant implications for cases where individuals had been convicted under joint enterprise for crimes they did not personally commit but were present at the scene or associated with the perpetrators. It brought about a re-evaluation of the legal principles surrounding joint enterprise and highlighted the importance of clarity in establishing criminal liability.

In the Privy Council case of James Miller v. The King [2023] UKPC 10, which references both R v Nedrick (1986) 83 Cr. App. R. 267 and R v Woollin [1999] 1 A.C. 82, HL, the appellant was convicted of the attempted murder of a police officer during the course of an armed robbery in the Bahamas. During the trial, the prosecution argued that the defendant had intended to kill the police officer, having fired two shots in her direction using a shotgun. The officer was hit by a non-fatal blow but suffered injuries. The appellant argued that the trial judge’s summary of the case was unfair.

Section 12 of the Bahamas Penal Code sets out various circumstances in which intent may be inferred, including section 12(3): ‘If a person does an act of such a kind or in such a manner as that, if he used reasonable caution and observation, it would appear to him that the act would probably cause or contribute to cause an event, or that there would be great risk of the act causing or contributing to cause an event, he shall be presumed to have intended to cause that event, until it is shown that he believed that the act would probably not cause or contribute to cause the event.’

Although the appeal was dismissed, the Privy Council noted the importance of trial judges not imposing their own view of what a defendant intended, but to direct the jury to relevant evidence to allow the jury to make their own decision, ‘…intention is an ordinary facet of human conduct and it is not normally a difficult concept to understand.’


The interpretation and application of virtual certainty in criminal law has evolved through judicial decisions. While the doctrine provides guidance in establishing the mental element required for
certain offenses, its application has been subject to criticism and controversy.

Some academics argue that the concept of virtual certainty may lead to harsh outcomes by broadening the scope of criminal liability. Determining the accused’s state of mind regarding foreseeability involves subjective judgments, leading to potential inconsistencies in legal outcomes.

Additionally, reconciling the principle of virtual certainty with the need for a fair and just legal system remains a challenge. Striking a balance between holding individuals accountable for their actions and ensuring that the legal system does not impose unjust liability requires careful consideration by the judiciary.


Virtual certainty in criminal law significantly impacts the establishment of mens rea, particularly concerning recklessness and indirect intention. Through landmark cases the courts have delineated the criteria for inferring intention based on the foreseeability of outcomes. The concept of virtual certainty remains crucial in determining criminal liability, yet its application requires careful consideration to maintain fairness and consistency in legal outcomes. While providing a framework to establish mental states in criminal offences, the doctrine of virtual certainty necessitates a nuanced approach to ensure justice and avoid undue harshness in its application.

Fatima Jama


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