Wherever the word ‘maliciously’ appears in a statutory crime, the prosecution must prove either that D intended to do the particular type of harm in fact done, or that D foresaw that such harm might be done.

The Court of Appeal recognized that acting deliberately with the appreciation of a virtual certainty of death did not necessarily amount to an intention to kill, but it was evidence from which intent to kill could be inferred. On facts such as these, there is very little to choose between a rule of evidence and one of substantive law.

The House of Lords laid down guidelines on what constituted the necessary mental element in murder. The judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide. Where, however, a direction was needed, the judge should invite the jury to consider two questions. First, was death or really serious injury a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence. Foresight of consequences belongs not to the substantive law, but to the law of evidence.

The House of Lords held that a person acts recklessly within the meaning of s 1 Criminal Damage Act 1971 with respect to (1) a circumstance when he is aware of a risk that it exists or will exist; (2) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.

Where D is charged with murder and the simple direction (that it is for the jury to decide whether D intended to kill or do serious bodily harm) is not enough, the jury should be directed that they are 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 D’s actions and that D appreciated that was the case, the decision being one for them to reach on a consideration of all the evidence.