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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Moloney [1984] UKHL 4 (21 March 1984)
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Cite as: [1985] 1 All ER 1025, [1985] AC 905, [1984] UKHL 4

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JISCBAILII_CASE_CRIME

    Parliamentary Archives,
    HL/PO/JU/18/245

    Regina (Respondent)
    v.

    Moloney (Appellant) (On Appeal from the Court of Appeal

    (Criminal Division))

    JUDGMENT

    Die Jovis 21° Martii 1985

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Moloney, That the Committee
    had heard Counsel on Monday the 28th and Tuesday the 29th
    days of January last upon the Petition and Appeal of Alistair
    Baden Roy Moloney praying that the matter of the Order set
    forth in the Schedule thereto, namely an Order of Her
    Majesty's Court of Appeal (Criminal Division) of the 8th day
    of June 1984, might be reviewed before Her Majesty the Queen
    in Her Court of Parliament and that the said Order might be
    reversed, varied or altered or that the Petitioner might have
    such other relief in the premises as to Her Majesty the Queen
    in Her Court of Parliament might seem meet; and Counsel
    having been heard on behalf of the Director of Public
    Prosecutions (on behalf of Her Majesty) Respondent to the
    said Appeal, and due consideration had this day of what was
    offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of her Majesty's Court of
    Appeal (Criminal Division) of the 8th day of June 1984
    complained of in the said Appeal be, and the same is hereby,
    Set Aside save for the grant of legal aid and that the
    verdict of murder be, and the same is hereby, also Set Aside
    and a verdict of manslaughter substituted: And it is further
    Ordered, That the Certified Question be answered in the
    negative: And it is also further Ordered, That the Cause

    be, and the same is hereby, remitted back to the Court of
    Appeal (Criminal Division) for hearing at the earliest
    possible date to determine the appropriate sentence.

    Cler: Parliamentor:

    HOUSE OF LORDS

    REGINA (RESPONDENT)

    V.

    MOLONEY (APPELLANT)

    (ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

    DIVISION))

    Lord Chancellor
    Lord Fraser of Tullybelton
    Lord Edmund-Davies
    Lord Keith of Kinkel
    Lord Bridge of Harwich


    LORD HAILSHAM OF ST. MARYLEBONE, L.C.

    My Lords,

    For the reasons which appear in the speech about to be
    delivered by my noble and learned friend Lord Bridge of Harwich,
    which I have had the privilege of reading in draft and with which
    I agree, the disposal of this case cannot be in doubt. The appeal
    must be allowed. The verdict of murder must be set aside. A
    verdict of manslaughter must be substituted. The case must be
    remitted to the Court of Appeal (Criminal Division) to determine
    the appropriate sentence. The case must be listed for hearing at
    the earliest possible date. The appellant has been in custody since
    November 1981, since the date of his conviction on a life sentence
    for murder, which, on any view, must be treated as unsafe and
    unsatisfactory.

    I agree with my noble and learned friend that the certified
    question must be answered in the negative owing to the presence
    of sub-paragraph (b) in the question as certified, and I agree with
    the reasons which have lead my noble and learned friend to that
    conclusion.

    I do, however, feel constrained to add the sense of deep
    distress I feel at the course which this unhappy and cautionary
    tale has taken in order to reach your Lordships' House. It has
    only come by here by leave of your Lordships. That leave could
    not have been given had the Court of Appeal not certified a point
    of law of general public importance to have been involved.

    Strictly speaking that question, though now, I hope, about to
    be satisfactorily answered, did not arise. It did not arise because,
    as my noble and learned friend has demonstrated, the verdict was
    already unsafe and unsatisfactory for a simpler and more
    fundamental reason. On a true analysis of the evidence, the real
    defence was never properly left to the jury with an appropriate
    Woolmington [1935] AC 462 direction.

    This gives rise to all the more concern because the
    committing justices, men and women unqualified in the law, had
    already come to the conclusion that, on a true analysis of the
    facts, only a committal for manslaughter and not murder was
    justified, and, on arraignment, the appellant had given the
    prosecution and the court yet another opportunity to analyse the
    matter correctly by tendering a plea of guilty to manslaughter
    which, it seems, was not acceptable, and in any event not
    accepted.

    I do not wish to qualify in any way what my noble and
    learned friend is about to say in answer to the certified question.
    It had already been pointed out by Wien J. in Reg. v. Belfon
    [1976] 1 W.L.R. 741, 747 that it is not foresight but intention
    which constitutes the mental element in murder, and the
    undesirability of elaborating unnecessarily on the meaning of
    intention in all but exceptional cases had already been emphasised
    by Lawton L3. in Reg. v. Beer (1976) 63 Cr.App.R. 222, 225. In
    the same place Lawton LJ. had also emphasised the very unusual
    nature of the facts in Reg. v. Hyam [1975] AC 55 to which I had
    ventured to draw the attention of the House at p. 78 of the
    report. At this point I feel that I should insert a word of
    personal explanation. The innocent victims who perished in the
    fire caused by Mrs. Hyam were not the target of the appellant's
    malice, which was solely directed, or to use Viscount Kilmuir
    L.C.'s phrase "aimed," at her rival in love who was asleep upstairs
    and, who, with a small boy was, in the event, unharmed. It was
    for this reason that I made reference to Viscount Kilmuir's speech
    in Director of Public Prosecutions v. Smith [1961] A.C. 290, 327.
    Further, the intention of the appellant in Reg. v. Hyam [1975]
    A.C. 55 was made apparent by two separate sets of facts, set out
    on p. 78 of the report. These were (1) that, prior to setting in
    train her criminal plan Mrs. Hyam first ascertained that her
    former lover was not in the house and therefore safe, thus making
    it plain that her intention was to expose those who were in the
    house to danger to their lives, and (2) that she took elaborate
    precautions to make sure that her actions did not awake the
    sleepers in the house, thus making it doubly clear that her
    intention was to expose them to whatever danger would be
    involved in the fire. I certainly did not intend by my observations
    to fall either into the trap exposed in this case by my noble and
    learned friend of opening up a charge of murder in "motor
    manslaughter" cases which are the result of criminal negligence or
    recklessness and not intention, or to excuse the hypothetical
    terrorist in my noble and learned friend's bomb disposal case
    whose intention may well prove to have been obvious. However,
    as I am content to accept my noble and learned friend's
    formulation in the present appeal, these observations are now, I
    suppose, of purely historical interest. I do not think I fell into
    either error. But if I did, I would clearly have been wrong.

    In the end justice in this case will have been done, but, in
    my view, at the end' of an unduly long and circuitous route. It
    would have been done at the trial if the court and the prosecution
    had followed the very sensible course taken by the committing
    justices, or accepted the very proper plea tendered on behalf of
    the defence. It would have been done on appeal had the Court
    analysed correctly the true nature of the defence emerging from
    the evidence and noticed the fact that it had not been properly
    put to the jury. I conclude with the pious hope that your
    Lordships will not again have to decide that foresight and
    forseeability 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

    - 2 -


    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.

    LORD FRASER OF TULLYBELTON

    My Lords,

    I have had the advantage of reading in draft the speech of
    my noble and learned friend, Lord Bridge of Harwich. I agree
    with it and for the reasons given by him I would allow the appeal
    and make the other orders which he suggests.

    LORD EDMUND-DAVIES

    My Lords,

    I have had a like advantage, and I too would allow the
    appeal and make the orders indicated in the speech of my noble
    and learned friend, Lord Bridge of Harwich, with which I am in
    respectful and total agreement.

    LORD KEITH OF KINKEL

    My Lords,

    I have had the benefit of reading in draft the speech of my
    noble and learned friend, Lord Bridge of Harwich. I agree with it,
    and for the reasons he gives I too would allow the appeal.

    LORD BRIDGE OF HARWICH

    My Lords,

    In the early hours of 22 November 1981, the appellant fired
    a single cartridge from a twelve-bore shotgun. The full blast of
    the shot struck the appellant's stepfather, Patrick Moloney, in the
    side of the face at a range of about six feet and killed him
    instantly. According to the police surgeon, who was on the scene
    within an hour of the shooting, the whole of the skull had in fact
    been destroyed, leaving just the root of the neck.

    Behind this shocking event lies a tragic story. In November
    1981 the appellant was aged 22. He was a serving soldier in the
    Gordon Highlanders and was at the material time on leave at the
    home of his mother and stepfather, having returned from duty in

    - 3 -

    Belize in South America. He had been in the army since
    November 1978 and had served in Northern Ireland, in this country,
    and finally in South America.

    There is no doubt that the appellant was one of a united,
    happy family. His mother had married the victim, Patrick
    Moloney, when the appellant was a very small boy. The appellant,
    at some stage, changed his name to Moloney. To all intents and
    purposes Patrick Moloney acted as a father to the appellant and
    was treated by the appellant as such. The undisputed evidence at
    the appellant's trial was that the stepfather and stepson enjoyed a
    happy and loving relationship with each other.

    On 21 November 1981 there was a dinner party at the home
    of Mr. and Mrs. Moloney to celebrate the ruby wedding anniversary
    of Mrs. Moloney's father and mother, the appellant's maternal
    grandparents. The party was a convivial one. Drink flowed
    freely. Both Patrick Moloney and the appellant drank a great deal
    of wine and spirits. By 1.00 a.m. in the morning of 22 November
    all the members of the family had retired to bed except the
    appellant and his stepfather. They were heard downstairs laughing
    and talking in an apparently friendly way.

    Shortly before 4.00 a.m. on 22 November the grandfather
    was awakened by the sound of a shot. He immediately came
    downstairs and found the appellant already on the telephone to the
    police station. The appellant said to the police officer who
    answered his call: "I've just murdered my father." He gave the
    address of the Moloney home.

    Two police patrol officers arrived on the scene at 4.09 a.m.
    The appellant's breath smelt strongly of alcohol, his eyes were
    bloodshot and he was unsteady on his feet, but his manner was
    calm and collected.

    The police officers looked into the room where the shooting
    had taken place and saw the body of the deceased in an armchair
    by the fireplace. There was a double-barrelled shotgun positioned
    between the dead man's knees; it was broken and pointing down
    towards the floor. The barrels appeared to be unloaded. It is
    appropriate to add at this point that later investigation revealed
    that the deceased had a live cartridge on his knee. A second
    shotgun, obviously that from which the fatal shot had been fired,
    was lying on the couch on the opposite side of the room.

    The appellant was taken to the police station. At about
    4.30 a.m. he was in the detention room in the company of one of
    the police patrol officers, a Constable Dighton, not a C.I.D.
    officer. According to Constable Dighton, at about this time, the
    appellant made two oral statements which were to play some
    significant part in his trial. At first he said: "I didn't want to kill
    him. It was kill or be killed. I loved him, I adored him." A
    little later, he said:

    "It all started because I wanted to leave the army. I went
    and got the guns and took the cartridges out of the
    cupboard. We both started to load the guns. I was quicker
    than him. He's got a bad arm; I should have realised. I
    loaded the gun before him and pointed it to him. I said:

    - 4 -

    "You've lost.' He said: 'You wouldn't dare pull the trigger.'
    I did and he's dead. If I hadn't, he would have done and he
    would have been sitting here instead of me."

    It is right to emphasise that neither of these statements was in
    writing. A note purporting to record his recollection of what had
    been said was made by Constable Dighton some time after the
    event. As will be seen, these two very brief statements by no
    means accorded with the full account which the appellant shortly
    afterwards gave to two detective officers in a form which was
    recorded and signed by him.


    At 5.45 a.m. the appellant was examined by a doctor. His
    breath smelt strongly of alcohol and his tongue was dry and
    furred. His co-ordination was poor; he had difficulty in
    unbuttoning his shirt, and he tended to sway on his feet and to
    walk with an unsteady gait. At 3.50 a.m. the doctor took a
    sample of blood from the appellant. This revealed upon later
    analysis that the proportion of alcohol in the blood at that time
    was 157 milligrams of alcohol per 100 millilitres of blood, i.e.,
    almost twice the permitted limit of alcohol in the blood above
    which it becomes an offence to drive a motor vehicle.

    Following his examination by the doctor, the appellant was
    interviewed by the acting detective chief superintendent,
    Superintendent Cole, and Detective Sergeant Fletcher. Sergeant
    Fletcher made a full written record of this interview which the
    appellant in due course signed as correct. It is in the course of
    this record that one reads the appellant's full account of the
    tragic events at his family home on the morning of 22 November.
    He has, in all essentials, adhered to that account ever since. The
    material part of the statement reads as follows:

    "It started with a dinner party which was thrown for my
    grandparents' fortieth wedding anniversary. Towards the
    end, we all had a lot to drink and our guests had left and I
    told me Dad I wanted to leave the army. He disagreed
    with me and started to outline his reasons for disagreeing
    with me. It was obviously set for being a long discussion so
    my mother, my sister and grandparents went to bed. We
    had a couple more drinks while the discussion went on and I
    was very drunk, and I suspect he was as well. At this point
    I have to become vague because the conversation came
    round to personal prowess and in particular with a shotgun.
    Me Dad claimed that he could not only outshoot me but
    outload me, outdraw me, i.e. he was faster than me, and
    claimed even with a crippled left arm he was still faster
    than me. I disagreed with him and said: 'Don't be silly' or
    words to that effect. In fact we were swearing at each
    other at this time. So he said: 'We'll prove it. Go and get
    two of the shotguns.' He has four, I have one. So I went
    upstairs and got my shotgun and I got his shotgun. I gave
    him his shotgun and he told me to get two cartridges out of
    a box in the cupboard. I gave him one and took the other
    myself. He opened his gun and started to remove his snap
    caps. I opened my gun and removed two empty cartridges
    which I use as snap caps as I don't have any, I inserted
    the cartridge in the right hand barrel, closed the gun, took
    off the safety catch and pulled the trigger of the left hand

    -5-

    barrel, and told him he'd lost. By this time I don't think
    he'd even cleared his barrel of the snap caps. He looked at
    me and said: 'I didn't think you'd got the guts, but if you
    have pull the trigger.' I didn't aim the gun. I just pulled
    the trigger and he was dead. I then went and called the
    police and told the operator I had just murdered my father,
    and that's the story."

    The appellant was in due course charged with murder, and
    brought before the St. Neots Magistrates' Court to be committed
    for trial. On 12 February 1982 that court found that there was
    no prima facie case of murder and committed the appellant to
    stand his trial at the Crown Court on a charge of manslaughter.
    The indictment, however, preferred against the appellant, charged
    him with murder. A plea of guilty to manslaughter, tendered by
    the appellant, was not acceptable to the Crown. The trial took
    place before Stephen Brown J. and a jury at the Birmingham
    Crown Court. On 17 September 1982, the appellant was convicted
    of murder. His appeal against conviction was dismissed by the
    Court of Appeal (Criminal Division) (May L.J., Boreham and Nolan
    JJ.), on 16 December 1983. The court certified that a point of
    law of general public importance was involved in their decision in
    the following terms:

    "Is malice aforethought in the crime of murder established
    by proof that when doing the act which causes the death of
    another the accused either:

    1. intends to kill or do serious harm; or

    2. foresees that death or serious harm will
      probably occur, whether or not he desires either of
      those consequences?"

    Your Lordships' House granted leave to appeal.

    Before turning to the substantial issues which the appeal
    raises, it is appropriate to refer to a subordinate issue, which was
    canvassed at the trial and which, at best, can have done nothing
    but confuse the jury and add an unnecessary burden to the judge's
    task in summing up. As already stated, the appellant had offered
    a plea of guilty to manslaughter and had at no stage contested his
    guilt of that offence. He said in evidence that he had no
    recollection of having spoken the words attributed to him by
    Constable Dighton, in particular the two sentences: "It was kill or
    be killed" and "If I hadn't, he would have done and he would have
    been sitting here instead of me." The implication of these two
    sentences, if they were ever spoken, was wholly inconsistent, not
    only with the detailed account of events in the written statement
    which the appellant signed and the evidence he gave in support of
    that account, but also with the objective evidence that the
    deceased was found after the event with his gun broken and
    unloaded. Counsel who appeared for the appellant at the trial (not
    the counsel who appeared in the Court of Appeal or before your
    Lordships) nevertheless invited the jury to acquit the appellant of
    any offence, on the ground that he acted in self defence. In the
    circumstances the judge, very prudently no doubt, felt it proper to
    leave this issue to the jury with appropriate directions, though on
    a true analysis it will be apparent that there was not a scintilla

    - 6 -

    of evidence to discharge the evidential burden on the appellant
    necessary to raise any issue of self defence at all. It is difficult
    to dispel a lurking anxiety that the argument that he acted in self
    defence may have operated on the minds of the jury adversely to
    the appellant.

    The true and only basis of the appellant's defence that he
    was guilty, not of murder, but of manslaughter, was encapsulated
    in the two sentences in his statement: "I didn't aim the gun. I
    just pulled the trigger and he was dead." The appellant amplified
    this defence in two crucial passages in his evidence. He said: "I
    never deliberately aimed at him and fired at him intending to hurt
    him or to aim close to him intending to frighten him." A little
    later, he said, he had no idea in discharging the gun that it would
    injure his father. "In my state of mind I never considered that
    the probable consequence of what I might do might result in injury
    to my father. I never conceived that what I was doing might
    cause injury to anybody. It was just a lark."

    This being the evidence. The issue for the jury was a short
    and simple one. If they were sure that, at the moment of pulling
    the trigger which discharged the live cartridge, the appellant
    realised that the gun was pointing straight at his stepfather's head,
    they were bound to convict him of murder. If, on the other hand,
    they thought it might be true that in the appellant's drunken
    condition and in the context of this ridiculous challenge, it never
    entered the appellant's head when he pulled the trigger that the
    gun was pointing at his father, he should have been acquitted of
    murder and convicted of manslaughter.

    The learned judge correctly directed the jury that in order
    to prove the appellant guilty of murder, "the prosecution have to
    prove that he intended either to kill his stepfather or to cause
    him some really serious bodily injury." But he had earlier given
    the following direction on intent:

    "When the law requires that something must be proved to
    have been done with a particular intent, it means this: a
    man intends the consequences of his voluntary act, (a) when
    he desires it to happen, whether or not he foresees that it
    probably will happen; and (b) when he foresees that it will
    probably happen, whether he desires it or not."

    That part of the direction following the colon is given in the
    precise terms of the so-called definition of intent set out in
    Archbold's Criminal Pleading Evidence and Practice, 40th ed.,
    (1979) para. 1441a, p. 948. The textbook places this definition in
    inverted commas although it does not purport to be a quotation
    from any judgment or work of authority. The text then continues:
    "As will be seen, this definition is in accordance with the great
    preponderance of authority." Finding such a passage in the
    standard textbook, which is every judge's vade mecum when on
    circuit, no one can possibly blame the learned judge for relying on
    it.

    Before considering the criticisms levelled at this direction,
    it is necessary to examine two later passages in the summing up
    and a supplementary direction given to the jury in answer to a
    question which they asked. The learned judge, when he came to

    - 7 -

    set out the case for the defence, quoted what I have described
    above as the two crucial passages in the appellant's evidence
    amplifying the sentence in his statement: "I didn't aim the gun."
    The learned judge did not relate these passages to his direction on
    intent, as many judges, I think, might have done, by saying to the
    jury: "Members of the jury, if you believe that may be true, you
    should acquit of murder and convict of manslaughter." Moreover,
    only a few sentences further on he quoted an answer given by the
    appellant under cross-examination as follows:

    "There is no doubt that when I fired that gun it was
    pointing at my father's head at a distance of about six feet,
    and at this distance there is no doubt it would cause death.
    It is a lethal weapon."

    It is clear that this answer must have been intended to
    acknowledge what the appellant recognised to be the fact with
    hindsight;
    it cannot have been intended as an admission of his
    state of mind at the time of the shooting. It may be that the
    context made this clear to the jury, and I hesitate to criticise
    such an experienced learned judge, but the possibility of the jury
    misunderstanding the significance of these passages in the
    appellant's evidence imposed, as it seems to me, a special duty on
    the judge to give the jury a direction which placed the real issue
    before them in unmistakable terms, when, as happened in the
    event, the jury returned four hours after their initial retirement
    and asked for "clarification of intent."

    Having reminded the jury that the necessary intent was
    either to kill or to cause really serious bodily harm, the judge
    continued in a passage which it is only fair to quote in full. He
    said:

    "In deciding the question of the accused man's intent, you
    will decide whether he did intend or foresee that result by
    reference to all the evidence, drawing such inferences from
    the evidence as appear proper in the circumstances.
    Members of the jury, it is a question of fact for you to
    decide. As I said I think when I was directing you
    originally you cannot take the top of a man's head off and
    look into his mind and actually see what his intent was at
    any given moment. You have to decide it by reference to
    what he did, what he said and all the circumstances of the
    case.

    An intent may be an impulsive intent or it may be
    premeditated. Nobody has suggested in this case that there
    was that element of premeditation. What the prosecution
    have said is that when he pulled the trigger of that gun it
    must have been pointing at the deceased and that the
    accused knew that it was pointing at him, knew it was
    loaded, and when he by a deliberate act pulled the trigger
    and fired the live barrel of that gun at his stepfather then,
    say the Crown, he must have intended at the very least to
    have caused him some really serious bodily injury.

    The defendant denies that he had that intent, and in
    considering the question of his intent it is right that you
    should take into account the evidence relating to the drink

    - 8 -

    that he had taken. As I have already endeavoured to
    explain to you, drink of itself is no defence for any
    unlawful action which may be committed, but it is one of
    the factors which you should have regard to in considering
    whether this accused man did have that necessary intent
    when he pulled that trigger. A drunken intent is still an
    intent, but you must be satisfied that he did intend either
    to kill or to do really serious bodily injury before you can
    return a verdict of guilty of murder."

    It will be observed that in this passage foresight of probable
    consequences, as an alternative to intent, has become mere
    foresight. The Crown's case of what it was contended the
    appellant must have known is recapitulated at some length. The
    defence is stated baldly as a denial of intent, without reference to
    the appellant's evidence to the effect that he did not realise the
    gun was aiming at his father.

    Delivering the judgment of the Court of Appeal in this case,
    May L.J. said:

    "We respectfully accept Mr. Blom-Cooper's submission, based
    upon the dictum of Lawton L.J. in the case of Reg. v. Beer
    (1976), 63 Cr.App.R. 222, that in most cases there is no
    need, indeed it is undesirable, to give a jury any definition
    of intent or intention in a murder case. It is usually
    sufficient to direct them, as indeed did the learned judge
    after the passage to which I have already referred, that
    intent or intention is a question of fact for them to
    determine, taking into account ail the circumstances of the
    case."

    May L.J. then quoted the trial judge's initial direction on intent by
    reference to foresight of probable consequences. He continued:

    "We think it is quite clear why the learned judge did, in
    this particular case, go further than is usual in most cases
    of murder. Intent or intention, in common parlance at
    least, involves the existence of a state of mind comprising
    the decision at least to attempt to achieve the intended
    result."

    May L.J. then referred to the approval by Lord Hailsham of St.
    Marylebone L.C. in Reg. v. Hyam [1975] AC 55, 74, of the
    famous definition of intention given by Asquith L.J. in Cunliffe v.
    Goodman
    [1950] 2 K.B. 237, 253 and added:

    "On the facts of the present case, as they appear from the
    papers, we are certainly prepared to accept that this
    applicant never intended to kill or cause serious bodily
    injury to his father, using the word 'intended' in that
    limited sense. Nevertheless, in the present case there was
    also ample material upon which a jury could conclude that
    the applicant had deliberately discharged his gun when it
    was pointing in the direction of his father and at a distance
    of only six feet."

    The dictum of Lawton L.J. in Reg. v. Beer, 63 Cr.App.R. 222, to
    which May L.J. refers, now has the endorsement of the Judicial

    - 9 -

    Committee of the Privy Council in the judgment delivered by Lord
    Roskill in Leung Kam-kwok v. The Queen on 19 December 1984.

    My Lords, I have to say, with ail respect, that I have
    difficulty in following the reasoning in the passage I have cited
    from the judgment of May L.J., if he was saying, as he seems to
    have been, that this was a case where it was appropriate to direct
    the jury that foresight of probable consequences was equivalent to
    intent. It seems to me, on the contrary, to have been a prime
    example of a case where this was, in the language of Lawton L.J.
    in Reg. v. Beer, 63 Cr.App.R. 222, 225 an "irrelevant direction,
    which may cause confusion for the jury." The fact that, when the
    appellant fired the gun, the gun was pointing directly at his
    stepfather's head at a range of about six feet was not, and could
    not be, disputed. The sole issue was whether, when he pressed the
    trigger, this fact and its inevitable consequence were present to
    the appellant's mind. If they were, the inference was inescapable,
    using words in their ordinary, everyday meaning, that he intended
    to kill his stepfather. The undisputed facts that the appellant
    loved his stepfather and that there was no premeditation or
    rational motivation, could not, as any reasonable juror would
    understand, rebut this inference. If, on the other hand, as the
    appellant was in substance asserting, it never crossed his mind, in
    his more or less intoxicated condition and when suddenly
    confronted by his stepfather's absurd challenge, that by pulling the
    trigger he might injure, let alone kill, his stepfather, no question
    of foresight of consequences arose for consideration. Whatever his
    state of mind, the appellant was undoubtedly guilty of a high
    degree of recklessness. But, so far as I know, no one has yet
    suggested that recklessness can furnish the necessary element in
    the crime of murder.

    If the jury had not demonstrated, by the question they asked
    after four hours of deliberation, that the issue of intent was one
    they did not understand, there might be room for further argument
    as to the outcome of this appeal. As it is, the jury's question,
    the terms of the learned judge's further direction, and the jury's
    decision, just over an hour later to return a unanimous verdict of
    guilty of murder, leave me in no doubt, with every respect to the
    trial judge, and the Court of Appeal, that this was an unsafe and
    unsatisfactory verdict.

    That conclusion would be sufficient to dispose of this
    appeal. But since I regard it as of paramount importance to the
    due administration of criminal justice that the law should indicate
    the appropriate direction to be given as to the mental element in
    the crime of murder, or indeed in any crime of specific intent, in
    terms which will be both clear to judges and intelligible to juries,
    I must first examine the present state of the law on that subject,
    and, if I find that it leads to some confusion, I must next consider
    whether it is properly within the judicial function of your
    Lordships' House to attempt some clarification and simplification.
    I emphasise at the outset that this is in no sense an academic, but
    essentially a practical, exercise.

    I could not, however hard I tried, hope to emulate the
    outstanding erudition with which the speeches in your Lordships'
    House in Reg. v. Hyam [1975] AC 55, studied the history and
    development of, and the authorities relevant to, the concept of

    - 10 -

    "malice aforethought," to use the anachronistic and now wholly
    inappropriate phrase which still lingers on in the definition of
    murder to denote the necessary mental element. It will be
    sufficient for my purposes to consider, as shortly as may be, the
    most significant developments in this field within the past thirty
    years.

    The Homicide Act of 1957, by section 1(1) abolished what
    used to be called constructive malice, but not what used to be
    called implied malice. It was so held and the implications of the
    change in the law were made clear by a particularly strong Court
    of Criminal Appeal (Lord Goddard C.J., Hilbery, Byrne, Slade and
    Devlin 33.) in Reg. v. Vickers [1957] 2 Q.B. 664. Lord Goddard
    C.J., delivering the unanimous judgment of the court, explained
    that killing in the course of committing another felony, e.g., theft
    or rape, ("constructive malice") was no longer murder. To
    constitute murder what had now to be proved was either an
    intention to kill ("express malice") or an intention to do grievous
    bodily harm ("implied malice"). The admirably clear and simple
    directions to the jury given by Hinchcliffe J., the trial judge, were
    expressly approved as "impeccable." Those directions several times
    indicated that to support a conviction for murder an intention to
    kill or do grievous bodily harm must be proved, but contained no
    paraphrase or elaboration of what the concept of intention
    involved.

    The next case I must consider is Director of Public
    Prosecutions v. Smith
    [1961] A.C. 290. The case is important for
    three reasons. The first is that the House, reversing the Court of
    Criminal Appeal, approved a direction by the trial judge, Donovan
    J., in a capital murder case, in the following terms (p. 325):

    "The intention with which a man did something can usually
    be determined by a jury only by inference from the
    surrounding circumstances including the presumption of law
    that a man intends the natural and probable consequences of
    his acts. If you feel yourselves bound to conclude from the
    evidence that the accused's purpose was to dislodge the
    officer, then you ask yourselves this question: Could any
    reasonable person fail to appreciate that the likely result
    would be at least serious harm to the officer? If you
    answer that question by saying that the reasonable person
    would certainly appreciate that, then you may infer that
    that was the accused's intention, and that would lead to a
    verdict of guilty on the charge of capital murder."

    The effect of this decision was to declare the presumption that a
    man intends the natural and probable consequences of his acts to
    be irrebuttable, or, put in other language, to require juries, in
    deciding whether a person accused of murder had the necessary
    intention to kill or cause grievous bodily harm, to apply the
    objective test of the reasonable man, not the subjective test of
    what was in the mind of the accused man. In this respect the
    decision was never popular with the profession. It is said to have
    been widely disregarded by trial judges, directing juries in murder
    cases, until it was eventually overruled by section 8 of the
    Criminal Justice Act 1967, which provides:

    - 11 -

    "A court or jury, in determining whether a person has
    committed an offence, - (a) shall not be bound in law to
    infer that he intended or foresaw a result of his actions by
    reason only of its being a natural and probable consequence
    of those actions; but (b) shall decide whether he did intend
    or foresee that result by reference to all the evidence,
    drawing such inferences from the evidence as appear proper
    in the circumstances."

    The second and third reasons why Director of Public Prosecutions
    v. Smith
    [1961] A.C. 290, is important sufficiently appear by two
    short citations from the speech of Viscount Kilmuir L.C., with
    which Lords Goddard, Tucker, Denning, and Parker of Waddington,
    ail agreed. He said, at p. 327:

    "The jury must, of course, in such a case as the present
    make up their minds on the evidence whether the accused
    was unlawfully and voluntarily doing something to someone.
    The unlawful and voluntary act must clearly be aimed at
    someone in order to eliminate cases of negligence or of
    careless or dangerous driving."

    He said, at p. 334:

    "My Lords, I confess that whether one is considering the
    crime of murder or the statutory offence [sc. section 18 of
    the Offences against the Person Act of 1861], I can find no
    warrant for giving the words 'grievous bodily harm' a
    meaning other than that which the words convey in their
    ordinary and natural meaning. 'Bodily harm' needs no
    explanation, and 'grievous' means no more and no less
    than 'really serious."'

    My Lords, between 1957, when Reg. v. Vickers [1957] 2 Q.B.
    661, was decided and the decision of Reg. v. Hyam [1975] AC 55,
    in 1974, I do not believe it was ever the practice of trial judges
    to equate intent with foresight of probable consequences. To
    invite a jury in effect, whatever the precise terms used in
    summing up, to apply the rule of evidence, or for that matter of
    common sense, that a man may ordinarily be presumed to intend
    the natural and probable consequences of his acts, is a different
    matter altogether.

    So I must turn to consider Reg. v. Hyam and discover, if I
    can, just what it decided. Mrs. Hyam was jealous of a Mrs.
    Booth. Mrs. Hyam feared that Mr. Jones, her former lover, was
    about to marry Mrs. Booth. Mrs. Hyam went to Mrs. Booth's
    house at night (having first assured herself that Mr. Jones would
    not be there) where Mrs. Booth and her three children were
    sleeping. Taking care to disturb no one, Mrs. Hyam set the house
    on fire with petrol. Mrs. Booth and one of her children escaped,
    the other two children died in the fire. Mrs. Hyam was tried for
    murder before Ackner J. and a jury. She was convicted.

    The direction which Ackner J. gave to the jury in written
    form on the question of intent was in the following terms:

    "The prosecution must prove, beyond all reasonable doubt,
    that the accused intended to (kill or) do serious bodily harm

    - 12 -

    to Mrs. Booth, the mother of the deceased girls. If you are
    satisfied that when the accused set fire to the house she
    knew that it was highly probable that this would cause
    (death or) serious bodily harm, then the prosecution will
    have established the necessary intent. It matters not if her
    motive was, as she says, to frighten Mrs. Booth."

    The Court of Appeal (Criminal Division) dismissed Mrs. Hyam's
    appeal, but gave her leave to appeal to this House and certified
    that the following point of law of general public importance was
    involved in their decision:

    "Is malice aforethought in the crime of murder established
    by proof beyond reasonable doubt that when doing the act
    which led to the death of another the accused knew that it
    was highly probable that the act would result in death or
    serious bodily harm?"

    Your Lordships' House dismissed the appeal by a majority of three
    (Lord Hailsham of St. Marylebone L.C., Viscount Dilhorne, and
    Lord Cross of Chelsea) to two (Lord Diplock and Lord Kilbrandon.)
    Lord Hailsham of St. Marylebone L.C. gave a qualified negative
    answer to the certified question expressed in the following
    propositions, at p. 79:

    "(1) Before an act can be murder it must be 'aimed at
    someone' as explained in Director of Public Prosecutions v.
    Smith
    [1961] A.C. 290, 327, and must in addition be an act
    committed with one of the following intentions, the test of
    which is always subjective to the actual defendant:

    (i) The intention to cause death;

    (ii) The intention to cause grievous bodily harm in
    the sense of that term explained in Smith, at p. 335,
    i.e., really serious injury;

    (iii) Where the defendant knows that there is a
    serious risk that death or grievous bodily harm will
    ensue from his acts, and commits those acts
    deliberately and without lawful excuse, the intention
    to expose a potential victim to that risk as the result
    of those acts. It does not matter in such
    circumstances whether the defendant desires those
    consequences to ensue or not, and in none of these
    cases does it matter that the act and the intention
    were aimed at a potential victim other than the one
    who succumbed.

    (2) Without an intention of one of these three types the
    mere fact that the defendant's conduct is done in the
    knowledge that grievous bodily harm is likely or highly likely
    to ensue from his conduct is not by itself enough to convert
    a homicide into the crime of murder."

    Viscount Dilhorne said, at p. 80:

    "It is to be observed that Ackner J. in his direction to the
    jury said that such knowledge [sc. that it was highly

    - 13 -

    probable that the act would cause death or serious bodily
    harm] established the necessary intent. The question
    certified asked whether it constituted malice aforethought.
    If it did, it does not follow that it established an intent to
    do grievous bodily harm."

    He went on to express the opinion that the question certified
    should be answered in the affirmative. He added, however, at p.
    82:

    "I think, too, that if Ackner J. had left the question of
    intent in the way in which it is left in the vast majority of
    cases, namely, was it proved that the accused had intended
    to kill or to do grievous bodily harm, no reasonable jury
    could on the facts of this case have come to any other
    conclusion than that she had intended to do grievous bodily
    harm, bearing in mind her knowledge and the fact that,
    before she set fire to the house, she took steps to make
    sure that Mr. Jones was not in it as she did not want to
    harm him. If the normal direction had been given, much
    litigation would have been avoided."

    Lord Diplock, in his dissenting opinion, said this with regard
    to the law of intent generally, at p. 86:

    "... I agree with those of your Lordships who take the
    uncomplicated view that in crimes of this class no
    distinction is to be drawn in English law between the state
    of mind of one who does an act because he desires it to
    produce a particular evil consequence, and the state of mind
    of one who does the act knowing full well that it is likely
    to produce that consequence although it may not be the
    object he was seeking to achieve by doing the act."

    However, he developed an elaborate argument for limiting the
    "particular evil consequence" in the definition of murder which an
    accused must have intended, in the sense indicated in the passage
    cited, to the death of the victim, and consequentially for excluding
    from the definition an intention to cause injury, no matter how
    serious, which was not likely to cause death. This view would
    result in a conveniently simple definition of the mental element in
    murder as an intention to cause death or to endanger life. It
    would also, of course, involve overruling Reg. v. Vickers [1957] 2
    Q.B. 664.

    Lord Kilbrandon delivered a short speech agreeing with Lord
    Diplock, at p. 98, that:

    "to kill with the intention of causing grievous bodily harm is
    murder only if grievous bodily harm means some injury
    which is likely to cause death: if murder is to be found
    proved in the absence of an intention to kill, the jury must
    be satisfied from the nature of the act itself or from other
    evidence that the accused knew that death was a likely
    consequence of the act and was indifferent whether the
    consequence followed or not."

    Lord Cross of Chelsea, although voting with the majority,
    effectively sat on the fence on the main issue which divided the

    - 14 -

    rest of their Lordships. Having reviewed their differences he
    concluded his speech by saying, at pp. 97-98:

    "All that I am certain of is that I am not prepared to
    decide between them without having heard the fullest
    possible argument on the point from counsel on both sides -
    especially as a decision that Reg. v. Vickers [1957] 2 Q.B.
    664 was wrongly decided might have serious repercussions
    since the direction approved in that case must have been
    given in many homicide cases in the last 17 years. For my
    part, therefore, I shall content myself with saying that on
    the footing that Reg. v. Vickers was rightly decided
    the
    answer to the question put to us should be 'Yes' and that
    this appeal should be dismissed."

    The Criminal Law Revision Committee in its Fourteenth
    Report entitled Offences against the Person (1980) (Cmnd. 7844),
    drew attention at pp. 8 et seq. under the heading "The mental
    element in murder" to the suggested effect of Reg. v. Hyam
    [1975] AC 55, but pointed out three uncertainties which the
    decision left unresolved. One of these has been finally settled by
    the unanimous decision of this House in Reg. v. Cunningham [1982]
    A.C. 566, affirming Reg. v. Vickers [1957] 1 Q.B. 664 and making
    clear that the restricted definition of the mental element in
    murder favoured in Reg. v. Hyam by Lord Diplock and Lord
    Kilbrandon, could now only be adopted by legislative, not by
    judicial, action. The other two uncertainties remain.

    First, is it a necessary ingredient in the crime of murder
    which helps to distinguish it from the crime of manslaughter that
    the action of the accused should be "aimed" at someone in the
    sense intended by Lord Hailsham of St. Marylebone L.C. in Reg. v.
    Hyam
    [1975] AC 55, relying on a passage in the speech of
    Viscount Kilmuir In Director of Public Prosecutions v. Smith [1961]
    A.C. 290? If so, what exactly does this involve? Secondly, if
    foresight of probable consequences is to be treated either as
    equivalent to intent, or as evidence from which intent may (or
    must?) be inferred, how is the degree of probability in homicide
    cases, where some risk of death or serious injury is foreseen, to
    be defined in a way that will distinguish murder from
    manslaughter.

    Before attempting to grasp these nettles, I would make
    some general observations. The definition of intent on which
    Stephen Brown J. based his initial direction to the jury in this
    case and which first appeared in the 40th edition, but now appears
    virtually unchanged in the 41st edition of Archbold's
    Criminal Pleading Evidence and Practice
    published in 1982, is, as
    previously stated, clothed with the spurious authority of quotation
    marks. I will repeat it here for clarity (para. 17-13, p. 995):

    "In law a man intends the consequence of his voluntary act,

    1. when he desires it to happen, whether or not
      he foresees that it probably will happen, or

    2. when he foresees that it will probably happen,
      whether he desires it or not."

    - 15 -

    Although in its terms applicable to any offence of specific intent,
    this so-called definition must be primarily derived from Reg. v.
    Hyam
    [1975] AC 55. The text embodies a reference to Viscount
    Dilhorne's opinion, implicit in the passage cited above from p. 82
    of the report, that in Reg. v. Hyam itself, as in the vast majority
    of cases, an explanation of intent was unnecessary and notes the
    endorsement of this view to which I have already referred in Reg.
    v. Beer
    63 Cr.App.R. 222. Apart from copious references to Reg.
    v. Hyam,
    the ensuing citation in support of the claim that the
    definition "is in accordance with the great preponderance of
    authority," refers to many decided cases in which there are to be
    found obiter dicta on the subject. But looking on their facts at
    the decided cases where a crime of specific intent was under
    consideration, including Reg. v. Hyam [1975] AC 55 itself, they
    suggest to me that the probability of the consequence taken to
    have been foreseen must be little short of overwhelming before it
    will suffice to establish the necessary intent. Thus, I regard the
    Archbold definition of intent as unsatisfactory and potentially
    misleading and one which should no longer be used in directing
    juries.

    The golden rule should be that, when directing a jury on the
    mental element necessary in a crime of specific intent, 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 whether the
    accused acted with the necessary intent, unless the judge is
    convinced that, on the facts and having regard to the way the
    case has been presented to the jury in evidence and argument,
    some further explanation or elaboration is strictly necessary to
    avoid misunderstanding. In trials for murder or wounding with
    intent, I find it very difficult to visualise a case where any such
    explanation or elaboration could be required, if the offence
    consisted of a direct attack on the victim with a weapon, except
    possibly the case where the accused shot at A and killed B, which
    any first year law student could explain to a jury in the simplest
    of terms. Even where the death results indirectly from the act of
    the accused, I believe the cases that will call for a direction by
    reference to foresight of consequences will be of extremely rare
    occurrence. I am in full agreement with the view expressed by
    Viscount Dilhorne that, in Reg. v. Hyam [1975] AC 55 itself, if
    the issue of intent had been left without elaboration, no reasonable
    jury could have failed to convict. I find it difficult to understand
    why the prosecution did not seek to support the conviction, as an
    alternative to their main submission, on the ground that there had
    been no actual miscarriage of justice.

    I do not, of course, by what I have said in the foregoing
    paragraph, mean to question the necessity, which frequently arises,
    to explain to a jury that intention is something quite distinct from
    motive or desire. But this can normally be quite simply explained
    by reference to the case before the court or, if necessary, by
    some homely example. A man who, at London airport, boards a
    plane which he knows to be bound for Manchester, clearly intends
    to travel to Manchester, even though Manchester is the last place
    he wants to be and his motive for boarding the plane is simply to
    escape pursuit. The possibility that the plane may have engine
    trouble and be diverted to Luton does not affect the matter. By
    boarding the Manchester plane, the man conclusively demonstrates
    his intention to go there, because it is a moral certainty that that
    is where he will arrive.

    -16 -

    I return to the two uncertainties noted by the Criminal Law
    Revision Committee in the Report referred to above as arising
    from Reg. v. Hyam [1975] AC 55, which still remain unresolved.
    I should preface these observations by expressing my view that the
    differences of opinion to be found in the five speeches in Reg. v.
    Hyam
    have, as I believe, caused some confusion in the law in an
    area where, as I have already indicated, clarity and simplicity are,
    in my view, of paramount importance. I believe it also follows
    that it is within the judicial function of your Lordships' House to
    lay down new guidelines which will achieve those desiderata, if we
    can reach broad agreement as to what they should be.

    In one sense I should be happy to adopt in its entirety the
    qualified negative answer proposed by my noble and learned friend
    on the Woolsack to the certified question in Reg. v. Hyam [1975]
    A.C. 55, 79, because, if I may say so, it seems to me to be
    supported by the most convincing jurisprudential and philosophical
    arguments to be found in any of the speeches in Reg. v. Hyam.
    But I have to add at once that there are two reasons why I
    cannot regard it as providing practical guidance to judges who
    have to direct juries in the rare cases where foresight of probable
    consequences must be canvassed with the jury as an element which
    should affect their conclusion on the issue of intent.

    First, I cannot accept that the suggested criterion that the
    act of the accused, to amount to murder, must be "aimed at
    someone" as explained in Director of Public Prosecutions v. Smith
    [1961] A.C. 290 by Viscount Kilmuir, at p. 327, is one which would
    be generally helpful to juries. The accused man in Director of
    Public Prosecutions v. Smith
    was driving a car containing stolen
    goods. When told to stop by a police constable he accelerated
    away. The constable clung to the side of his car and the accused,
    in busy traffic, pursued an erratic course in order to shake the
    constable off. When finally shaken off, the constable fell in front
    of another car and was killed. In this context it was, no doubt,
    entirely apposite to say, as Viscount Kilmuir did: "The unlawful
    and voluntary act must clearly be aimed at someone in order to
    eliminate cases of negligence or of careless or dangerous driving."
    But what of the terrorist who plants a time bomb in a public
    building and gives timely warning to enable the public to be
    evacuated? Assume that he knows that, following evacuation, it is
    virtually certain that a bomb disposal squad will attempt to defuse
    the bomb. In the event the bomb explodes and kills a bomb
    disposal expert. In our present troubled times, this is an all too
    tragically realistic illustration. Can it, however, be said that in
    this case the bomb was "aimed" at the bomb disposal expert?
    With all respect, I believe this criterion would create more doubts
    than it would resolve.

    Secondly, I believe that my noble and learned friend, Lord
    Hailsham's inclusion in the mental element necessary to a
    conviction of murder of "the intention to expose a potential
    victim," inter alia, to "a serious risk that . . . grievous bodily
    harm will ensue from his acts" ([1975] AC 55, 79) comes
    dangerously near to causing confusion with at least one possible
    element in the crime of causing death by reckless driving, and by
    inference equally of motor manslaughter, as identified by Lord
    Diplock in the later case of Reg. v. Lawrence [1982] A.C. 510,

    - 17 -

    526, 527, where the driving was such "as to create an obvious and
    serious risk of causing physical injury to some other person" and
    the driver "having recognised that there was some risk involved,
    had nonetheless gone on to take it." If the driver, overtaking in a
    narrow country lane in the face of an oncoming cyclist, recognises
    and takes not only "some risk" but a serious risk of hitting the
    cyclist, is he to be held guilty of murder?

    Starting from the proposition established by Reg. v. Vickers
    [1957] 2 Q.B. 664, as modified by Director of Public Prosecutions
    v. Smith
    [1961] A.C. 290 that the mental element in murder
    requires proof of an intention to kill or cause really serious injury,
    the first fundamental question to be answered is whether there is
    any rule of substantive law that foresight by the accused of one
    of those eventualities as a probable consequence of his voluntary
    act, where the probability can be defined as exceeding a certain
    degree, is equivalent or alternative to the necessary intention. I
    would answer this question in the negative. Here I derive
    powerful support from the speech of my noble and learned friend,
    Lord Hailsham, in Reg. v. Hyam [1975] AC 55. He said, at p.
    75: "I do not, therefore, consider, as was suggested in argument,
    that the fact that a state of affairs is correctly foreseen as a
    highly probable consequence of what is done is the same thing as
    the fact that the state of affairs is intended." And again, at p.
    77: "I do not think that foresight as such of a high degree of
    probability is at all the same thing as intention, and, in my view,
    it is not foresight but intention which constitutes the mental
    element in murder." The irrationality of any such rule of
    substantive law stems from the fact that it is impossible to define
    degrees of probability, in any of the infinite variety of situations
    arising in human affairs, in precise or scientific terms. As Lord
    Reid said in Southern Portland Cement Ltd. v. Cooper [1974] A.C.
    623, 640:

    "Chance probability or likelihood is always a matter of
    degree. It is rarely capable of precise assessment. Many
    different expressions are in common use. It can be said
    that the occurrence of a future event is very likely, rather
    likely, more probable than not, not unlikely, quite likely, not
    improbable, more than a mere possibility, etc. It is neither
    practicable nor reasonable to draw a line at extreme
    probability."

    I am firmly of opinion that foresight of consequences, as an
    element bearing on the issue of intention in murder, or indeed any
    other crime of specific intent, belongs, not to the substantive law,
    but to the law of evidence. Here again I am happy to find myself
    aligned with my noble and learned friend, Lord Hailsham, in Reg.
    v. Hyam
    [1975] AC 55, where he said, at p. 65: "Knowledge or
    foresight is at the best material which entitles or compels a jury
    to draw the necessary inference as to intention." A rule of
    evidence which judges for more than a century found of the
    utmost utility in directing juries was expressed in the maxim: "A
    man is presumed to intend the natural and probable consequences
    of his acts." In Director of Public Prosecutions v. Smith [1961]
    A.C. 290 your Lordships' House, by treating this rule of evidence
    as creating an irrebuttable presumption and thus elevating it, in
    effect, to the status of a rule of substantive law, predictably
    provoked the intervention of Parliament by section 8 of the

    - 18 -

    Criminal Justice Act of 1967 to put the issue of intention back
    where it belonged, viz., in the hands of the jury, "drawing such
    inferences from the evidence as appear proper in the
    circumstances." I do not by any means take the conjunction of
    the verbs "intended or foresaw" and "intend or foresee" in that
    section as an indication that Parliament treated them as
    synonymous; on the contrary, two verbs were needed to connote
    two different states of mind.

    I think we should now no longer speak of presumptions in
    this context but rather of inferences. In the old presumption that
    a man intends the natural and probable consequences of his acts
    the important word is "natural." This word conveys the idea that
    in the ordinary course of events a certain act will lead to a
    certain consequence unless something unexpected supervenes to
    prevent it. One might almost say that, if a consequence is
    natural, it is really otiose to speak of it as also being probable.

    Section 8 of the Criminal Justice Act 1967 leaves us at
    liberty to go back to the decisions before that of this House in
    Director of Public Prosecutions v. Smith [1961] A.C. 290 and it is
    here, I believe, that we can find a sure, clear, intelligible and
    simple guide to the kind of direction that should be given to a
    jury in the exceptional case where it is necessary to give guidance
    as to how, on the evidence, they should approach the issue of
    intent.

    I know of no clearer exposition of the law than that in the
    judgment of the Court of Criminal Appeal (Lord Goddard C.J.,
    Atkinson and Cassels JJ.) delivered by Lord Goddard C.J. in Rex,
    v. Steane
    [1947] K.B. 997 where he said, at p. 1004:

    "No doubt, if the prosecution prove an act the natural
    consequence of which would be a certain result and no
    evidence or explanation is given, then a jury may, on a
    proper direction, find that the prisoner is guilty of doing the
    act with the intent alleged, but if on the totality of the
    evidence there is room for more than one view as to the
    intent of the prisoner, the jury should be directed that it is
    for the prosecution to prove the intent to the jury's
    satisfaction, and if, on a review of the whole evidence, they
    either think that the intent did not exist or they are left in
    doubt as to the intent, the prisoner is entitled to be
    acquitted."

    In the rare cases in which it is necessary to direct a jury
    by reference to foresight of consequences, I do not believe it is
    necessary for the judge to do more than invite the jury to
    consider two questions. First, was death or really serious injury in
    a murder case (or whatever relevant consequence must be proved
    to have been intended in any other case) 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.

    My Lords, I would answer the certified question in the
    negative. I would allow the appeal, set aside the verdict of

    - 19 -

    murder, substitute a verdict of manslaughter and remit the case to
    the Court of Appeal (Criminal Division) to determine the
    appropriate sentence. Having regard to the time the appellant has
    already spent in custody, the case should be listed for hearing at
    the earliest possible date.

    - 20 -


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