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Source: p 28, Criminal Law: The Basics, 1 ed (2009), by Herring

The Woollin direction allows the jury to find intention if they wish, if the foresight of virtual certainty test is satisfied. But what factors are the jury meant to take into account in deciding whether or not to find intention? We are not told by the House of Lords.

[The test:] “Where the charge is murder and in the rare cases where the simple direction 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 the defendant's actions and that the defendant appreciated that such was the case.”

In general, if someone must apply a test, then she will be presented with the elements of that test. Given the requirements and the facts, she can then test directly. So what does foresight mean?

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  • The passage itself defines foresight: the defendant appreciated (i.e. understood) that the result of his actions was a virtual certainty barring some unforeseen intervention.
    – Tᴚoɯɐuo
    Nov 30, 2014 at 15:05
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    Your text is aimed at readers who know enough about legal practice and terms to be aware of the "virtual certainty test" as a legal principle. If that test is satisfied, you have foresight (prior knowledge) of the outcome if some contributory cause occurs. So if you do it (or allow it to happen) you might be found guilty of intentionally contributing to that result, because you knew it would happen, and you did nothing to stop it.
    – FumbleFingers
    Nov 30, 2014 at 15:07
  • en.wikipedia.org/wiki/R_v_Nedrick
    – DoneWithThis.
    Nov 30, 2014 at 15:20
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    Parse this as a test of foresight of virtual certainty: a test of whether the defendant could foresee that the outcome was a virtual certainty. Foresight is an obligatory component of the test; for instance, if the factors which made the outcome virtually certain were not known to the defendant he could not foresee that outcome, and intention could not be reasonably found.
    – StoneyB on hiatus
    Nov 30, 2014 at 15:59
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    Also "was a virtual certainty" = "would surely happen"
    – Tᴚoɯɐuo
    Nov 30, 2014 at 18:33

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To foresee something is to (correctly, or at least reasonably) predict it. For example, one might foresee a potential problem, and then take steps to prevent it.

Foresight is just the corresponding noun: see : foresee :: sight :: foresight. It means the ability to correctly predict something. For example, one might have the foresight to bring a raincoat when traveling to an area with frequent rainstorms.

So in the "foresight of virtual certainty" test, the question is not merely whether death (or at least serious bodily harm) was a "virtual certainty" due to the defendant's actions, but also, whether the defendant foresaw that this was the case. If not, then the jury cannot find that the defendant had murderous intention, and therefore cannot find the defendant guilty of murder.

For example, if I do something that will definitely cause someone's death, but I don't realize that it is going to do that, then under the "foresight of virtual certainty" test, I am not considered to have intention, whereas in a hypothetical "virtual certainty" test, I would be.

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