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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Hyam v DPP [1974] UKHL 2 (21 March 1974) URL: http://www.bailii.org/uk/cases/UKHL/1974/2.html Cite as: [1974] UKHL 2, [1975] AC 55 |
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Die Jovis, 21° Martii 1974
Parliamentary
Archives,
HL/PO/JU/4/3/1254
HOUSE OF LORDS
HYAM
v.
DIRECTOR OF PUBLIC
PROSECUTIONS
(on Appeal from the Court of Appeal (Criminal
Division))
Lord
Hailsham of St. Marylebone
Viscount
Dilhorne
Lord
Diplock
Lord
Cross of Chelsea
Lord
Kilbrandon.
Lord Hailsham of St. Marylebone
MY LORDS,
' The prosecution must prove,
beyond all reasonable doubt, that
" the accused intended to
(kill or) do serious bodily harm 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
prosecu-
" tion will have established the necessary intent.
It matters not if her
" motive was, as she says, to frighten
Mrs. Booth ".
There
were other passages in the summing-up to the same effect, but
this
was the vital passage, and the judge reduced it to writing
and caused the
jury to retire with it into the jury room. As the
case proceeded, it is the
only passage in the judge's summing-up
to which I need draw attention.
2
and gives rise to the only point which was argued before
your Lordships'
House. The Court of Appeal dismissed the appeal
"not without some
reluctance ", and, in giving leave to
appeal to the House of Lords, certified
that it involved the
following point of law of general public importance,
namely, the
question:
" 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
" that act would result
in death or serious bodily harm? "
This is the only question which, in my view, it is
necessary to consider and
the whole appeal is, therefore, within a
fairly narrow compass. Both in the
Court of Appeal and in your
Lordships' House the Crown disclaimed, in my
view rightly, any
argument based on the so called " proviso " (now s. 2(1)
of
the Criminal Appeal Act, 1968), and accordingly the question
certified
remains to be considered solely on its merits.
Before directing my mind to the simple point involved
there are two
general topics I desire to discuss. The first is as
to the historical context in
which the point falls to be decided,
and the second is as to the precise senses
in which I shall
endeavour to use certain common words such as " motive ",
"
intention ", " purpose ", " object", "
desire ".
My Lords, the distinction between murder and
manslaughter, both felonies
at Common Law, appears to derive from
the Statutes of Henry VIII and
Edward VI (23 H.VIII c. 1, 25
H.VIII c.3, 1 Ed. VI c. 12, 5 & 6, Ed VI c. 10)
by which
benefit of clergy was withdrawn from murder committed ex
malitia
praecogitata, which, in the form " malice prepense " or "
prepensed "
and " malice aforethought" has
continued in common use in legal circles
to the present date. (See
on this topic Bacon's Abridgment s.v. Murder.)
The precise value of this phrase is open to doubt. As
long ago as 1883
Stephen described it as:
" A phrase which is never used except to mislead or to be explained
" away '!
and advised its abolition as a term of art and the
substitution for it of a
" definite enumeration of the states
of mind intended to be taken as con-
" stituent elements of
murder ". In the present case Cairns L.J. in delivering
the
judgment now appealed from said:
" There is no doubt that murder is killing ' with
malice aforethought'
" and there is no doubt that neither the
word ' malice' nor the word
" ' aforethought' is to be
construed in any ordinary sense ".
I agree with this latter observation, and would myself
think that the sooner
the phrase is consigned to the limbo of
legal history the better for precision
and lucidity in the
interpretation of our criminal law.
However, " malice aforethought" was and is
part of our criminal juris-
prudence and by the beginning of the
twentieth century (and for long before
that) had come by judicial
interpretation to cover a number of states of mind
which rendered
guilty of murder men and women whose conviction of a
capital
offence would not be considered acceptable to-day even by the
most
convinced adherents of the death penalty. In the first place,
until the
decision in Woolmington v. D.P.P. [1935] A.C. 462, it was commonly held
that :
"Every person who kills another is presumed to have
wilfully
" murdered him, unless the circumstances are such as
to raise a contrary
" presumption.
" The burden of proving circumstances of excuse,
justification, or
" extenuation is upon the person who is
shown to have killed another."
(See Stephen's Digest of the Criminal Law, Art. 230). In
the second place,
by a doctrine known as that of "
constructive malice " a person was deemed
to have committed
murder ex malitia praecogitata if he had either of the
following
states of mind:
" An intent to commit any felony whatever;
3
" An intent to oppose by force any officer of
justice on his way to,
" in, or returning from the execution
of the duty of arresting, keeping
" in custody, or
imprisoning any person whom he is lawfully entitled
" to
arrest, keep in custody, or imprison, or the duty of keeping the
"
peace or dispersing an unlawful assembly, provided that the
offender
" has notice that the person killed is such an
officer so employed "
and the expression " officer of justice "
could be held to include not merely
a constable, but any private
person who happened in the given circumstances
to have the right
to do any of the acts concerned (See Stephen's Digest, Art.
223).
This remained the law until 1957, when, by section 1 of the
Homicide
Act of that year, the doctrine of constructive malice in
the above sense was
abolished and a man was said not to be guilty
of murder unless the killing
were:
" done with the same malice aforethought (express
or implied) as is
" required for a killing to amount to
murder when not done in the course
" or furtherance of
another offence."
Incidentally, in my view this section clearly recognizes
a state of affairs
described as " implied malice " which
is distinguished both from " express
" malice " and
from " constructive malice ". This may be an
inconvenient
terminology but no account of the law which fails to
recognize it can be
considered accurate.
Further, the same Act of Parliament also reduced the
number of cases of
murder ex malitia praecogitata by
inaugurating the defence of " diminished
"
responsibility ". (Homicide Act, 1957, section s.2.) In
approaching the
question which I am asked to decide to-day, in so
far as I am a free agent,
I cannot ignore the repeatedly evinced
intention of Parliament (soon after-
wards, as I shall proceed to
show, added to by section 8 of the Criminal
Justice Act, 1967), to
mitigate the severity of the law as it developed under
the
successive interpretations of malice aforethought by judicial
decision.
The abolition of the doctrine of constructive malice
laid the way open
for the decision in Vickers [1957] 2 Q.B.
664 re-argued before a particularly
strong full Court of Criminal
Appeal. Technically this decision only rejected
the ingenious
argument of some academic lawyers that, by enacting section 1
of
the Homicide Act, 1957, Parliament, despite the express words of
the
section, had inadvertently got rid of the doctrine of implied
malice as well
as constructive malice. But, in giving the judgment
of the Court, Lord
Goddard, L.C.J., took the opportunity to define
the doctrine of implied
malice so retained, and to give what has
since become the classical definition
of murder, repeatedly
employed ever since, as killing " with the intention
"
cither to kill or to do some grievous bodily harm " (see per
Goddard L.C.J.,
quoting from the summing-up of the trial judge
[1957] 2 Q.B. at p. 672). It
will be noticed that in this
definition the reference is to intention and there
is no reference
to foresight of the consequences as such either as equivalent
to
intention in murder or as an alternative to the requisite intention,
or to a
" high degree of probability " to describe the
degree of certainty of what
has to be foreseen, although both the
foresight and the degree of probability
must be at least material
which the jury may and, on occasion, must use as
the basis on
which an adverse inference is drawn as to the intention of
the
killer. Not unnaturally counsel for the appellant in this case
strongly stressed
this circumstance in his argument before their
Lordships. I have to remark
that if at this stage we were to
overthrow the decision in Vickers a very
high proportion of
those now in prison for convictions of murder must
necessarily
have their convictions set aside and verdicts of
manslaughter
substituted. This consideration ought not perhaps
logically to affect our
decision, but I am personally relieved to
find that I find myself in agreement
with the decision in Vickers.
I now pause to say a word about the expression "
grievous bodily harm ",
another term of art in English
criminal law of respectable pedigree (cf
Statute 43 Geo. 3 c. 58
and Cox (1818) Russ. & Ry. 362) but uncertain
meaning.
In the context of murder, the Commissioners on the Criminal law
in
their report of 1839 used the expression " great harm " as
opposed to
" slight harm " in connection with murder,
but, apart from the context of
4
murder, " grievous bodily harm " has been used
in connection with various
statutory offences under various Acts
including the Offences Against the
Person Act, 1861, and other
Statutes, and, shortly before that Act, Willes J.,
in Ashman
(1858) 1 F. & F. 88 defined " grievous bodily harm "
as not
necessarily involving injury which is
" permanent or dangerous if it be such as seriously
to interfere with
" comfort or health ".
and for many years Willes J.'s opinion was cited as the
authoritative
definition. But this led Lord Devlin, in a moment of
extra-judicial levity
to conclude that, if this were right, it
would open the door in murder to a
verdict of " murder by
pinprick ", since it could not be denied that
constantly
pricking a man on the stomach with a pin would
certainly seriously interfere
with his comfort, and in certain
cases by some misadventure might cause
death. In the case of
D.P.P. v. Smith [1961] A.C. 290 at p. 334, to which
I
will turn in a moment, the late Lord Kilmuir put an end to this
strange
doctrine with the words:
" 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 '."
Since that date, if not before, it has been the practice
to direct juries on the
authority of Vickers, supra and
this passage in Smith that murder means
that a man causes
the death of another " with the intent to cause death
"
or really serious injury". What injuries are " really
serious" within
the meaning of this definition is a question
left for the jury to decide for
themselves. Obviously it would
include any injury likely to endanger life,
but, speaking for
myself, I would also consider it obvious that there are many
injuries
which a jury would call really serious which in the ordinary
course
would not be likely to endanger life. I think it would be
difficult by a
purely judicial interpretation to restrict the
definition further. In particular,
if it were desired to restrict
the definition of murder by defining it as killing
with intent to
cause death or endanger life, I would think that an Act of
Parliament
would be necessary, and, before passing legislation it would
be
desirable for Parliament to investigate policy considerations more
widely
than is desirable or possible in the course of a judicial
investigation based
on a single case. In particular I would hope
that Parliament would consider
whether the substitution in effect
of the phrase " intent to endanger life "
for " to
inflict really serious injury " as the mental element of
intention
in murder would not impose on juries a task
unnecessarily onerous or would
be morally justifiable. One can
visualise a situation in which a defendant
said, " True I
intended to inflict really serious injury on my victim, but
"
it is most unfortunate that he died. I did not really intend to
endanger
" his life ". I am not as clear myself as some
of my colleagues that this
defence should be permitted to avail
him as a valid defence to a charge
of murder.
The next stage in my historical summary must necessarily
be the much
discussed case of D.P.P. v. Smith [1961] A.C.
290 to which I have just
referred in a limited context. One of the
questions much canvassed in the
hearing of this appeal was how
much if anything in this decision has
survived the enactment of s.
8 of the Criminal Justice Act, 1967, and
whether, on the
assumption that anything relevant to this appeal survived,
this
House should yield to the invitation expressed in the current
edition
of Smith and Hogan to
" overrule that case by virtue of the House's newly
assumed power
" to reverse its previous decisions ".
(See Smith and Hogan, Criminal Law Second Edition p. 199.)
I will not rehearse the facts in D.P.P. v. Smith
since they are sufficiently
well known. A criminal seeking to
escape killed a police officer who tried
to stop him by sitting on
the bonnet of his car. The criminal accelerated
and threw the
officer off in the path of oncoming traffic and this caused him
fatal
injuries. The defendant's own account of the matter in Court was
5
that he lacked the necessary criminal intention because
he had become
frightened. There was a good deal of very powerful
evidence that this
defence was untrue in fact, but the judge in
effect directed the jury, which
convicted him, that this was not
material, because they should convict of
(capital) murder if
satisfied that the accused "as a reasonable man must
"
have contemplated that grievous bodily harm to the officer was likely
to
" result as the consequence of what he did ". Here
there is a clear indication
of foresight of the consequences as a
possible ingredient of malice afore-
thought, and that likelihood
and not certainty of the consequences is enough.
A strong Court of
Criminal Appeal (Byrne, Winn and Sachs JJ.) quashed the
conviction
on the ground that this was a misdirection. Byrne J., in
delivering
a judgment of the Court which personally I find in the
main
persuasive, lucid and coherent, said this at p. 300:
" The law on this point as it stands to-day is ...
that, as a man is
" usually able to foresee what are the
natural consequences of his
" acts, so it is, as a rule,
reasonable to infer that he did foresee them
" and intend
them. But, while that is an inference which may be drawn,
"
and on the facts in certain circumstances must inevitably be drawn,
"
yet if on all the facts of the particular case it is not the
correct
" inference, then it should not be drawn ".
And again at p. 302:
" The final question for the jury must always be
whether on the facts
" as a whole an actual intent to do
grievous bodily harm was established,
" remembering, of
course, that intent and desire are different things,
" and
that once it is proved that an accused man knows that a result
"
is certain, the fact that he does not desire that result is
irrelevant".
The House of Lords, consisting of the Lord Chancellor
(Viscount Kilmuir)
and Lords Goddard, Tucker, Denning, and Parker
of Waddington reversed
the decision of the Court of Criminal
Appeal, and it is the opinion of the
then Lord Chancellor,
speaking with the agreement of the rest, that we have
read in
extenso and discussed in considerable detail.
My Lords, I do not wish to say anything which is not
deeply respectful
of my learned and greatly admired predecessor
with whom I was for many
years on terms of intimate friendship,
nor of the extremely strong House
which followed the lead of his
speech in this case. But it would be affecta-
tion in me not to
recognise that the decision of this House in D.P.P. v.
Smith
has proved at all times highly controversial, has given rise to
an
extensive body of literature both here and in the Commonwealth,
and has
proved unusually difficult to interpret (see, for
instance, Smith and Hogan,
op. cit. p. 197, Williams Criminal Law
2nd Edition at p. 94ff, see also
the literature there referred to
at 23 M.L.R. 605 ; 14 C.L.P. 1 ; [1960]
Criminal Law Review 1 ;
Lord MacDermott " Murder in 1963 ", Birmingham
University
Press ; Lord Denning, Responsibility before the Law, 1961,
Hebrew
University Press; 14 C.L.P. 16; [19601 Criminal Law Review
765; (1961)
35 A.L.J. 154; [1966) Criminal Law Review 195). It was
unequivocally
dissented from by the Australian High Court (Parker
v. The Queen, (1963)
111 C.L.R. 610 at pp. 632-3). It
was exhaustively criticised by the Law
Commission (1967), and the
Law Commission's criticisms formed the basis,
in part, of the
action of Parliament in passing the Criminal Justice Act,
1967, s.
8, which was believed at the time to have reversed it (see Smith
and
Hogan, op. cit. p. 198), and the learned authors of that work,
whilst
not accepting that this is the true effect of the section,
reach the conclusion
that
" It would have been most unfortunate if Smith
had been held still
" to be law after all ".
(op. cit. p. 199), and owing to the interpretation they
themselves put on
the case they invited this House to make use of
the Practice Direction of
1966 to overrule it as " the only
right course ". These are weighty criticisms
by responsible
persons, and, in spite of the distinction of the House, and
the
reverence and affection with which I regard the memory of my
predecessor,
I feel bound to examine them seriously. Indeed, in a
provocative article
amongst those cited above one author has done
extensive research which
6
appears to conclude that, in actual practice, judges, in
directing juries, are
in fact ignoring the House of Lords and
following Vickers (supra) and
Byrne J. in Smith (see
" The Retreat from Smith " [1966] Criminal
Law
Review 195).
However this may be, it is beyond question that the
actual decision in
Smith has given rise to a series of
wholly irreconcilable interpretations. There
have been
maximalising interpretations, notably from its critics,
and
minimalising interpretations, usually from its defenders, e.g.
per Denning M.R.
and Pearson L.J. in Hardy v. Motor
Insurers Bureau [1964] 2 Q.B. 745 esp.
at 758 ff and 762 ff).
It has been interpreted as importing an irrebuttable
presumption
of evidence (Law Commission Report 1967), and as deciding
a new
rule of substantive criminal law (Glanville Williams and Smith
and
Hogan, loci citati). It has been interpreted as being of
general application,
or limited to the crime of murder, or to "
such a case as the present" (per
Denning M.R. [1964] 2 Q.B.
at 759, Pearson L.J. ibid, at p. 764). It has
been interpreted as
importing an objective criterion into the essentially sub-
jective
question of intent, as re-introducing the repealed doctrine
ot
constructive malice (1960 M.L.R. p. 605), or, alternatively, as
upholding the
subjective test of intention, but sticking an
objective label on the nature and
quality of the act done. I am
not going to endeavour to decide between
these rival and wholly
irreconcilable interpretations for the very good reason
that I
believe that each can be justified by particular phrases to be found
in
the report. What is beyond question is that an attempt to
revive the decision
in toto without interpreting it de
novo would be to introduce confusion and
not lucidity into the
law. Far better to recognise that Parliament in 1967,
after
considering a report by the Law Commission, decided that it was
better
to turn its back on what was rightly or wrongly taken as
the main argumenta-
tion of Smith, and to impose the rule
of a subjective test both as to foresight
of the consequences and
as to intention, as section 8 of the Criminal Justice
Act, 1967,
appears to do, while yet retaining the intention to cause
grievous
bodily harm (in the sense explained) as a possible
alternative to intent to
kill as the essential mental element in
the crime of murder. Such at least
is the proper inference to be
drawn from the decision of Parliament to enact
the first and the
failure of Parliament to enact the second of the two draft
clauses
in the Law Commission's recommendations, and such at least
appears
to have been the view of the Court of Appeal in Wallett [19681]
2
Q.B. 367 which is the last of the citations I wish to make in this
historical
survey of the subject.
In that case a male defendant of less than average
intelligence shook a
little girl so savagely that she died. The
trial judge directed the jury
impeccably if the above view of the
effect of the Criminal Justice Act, 1967,
s. 8 be accepted, but,
when they returned for further guidance as to the
difference
between murder and manslaughter, concluded his additional advice
by
saying that what the jury had to consider was whether the
defendant
knew " quite well at the time he was doing
something any ordinary person
" like himself
[emphasis mine] would know it was doing he really serious
"
bodily harm." The Court of Appeal held that it would not be safe
to allow
the resulting verdict of guilty to stand. I do not
believe that they could
have done so if they had not accepted the
general approach which I have
indicated as the true view of the
effect of s. 8 of the Criminal Justice Act,
1967, on Smith.
The judgment of Winn L.J. in Wallett was referred
to in the Court of
Appeal in the present case as supporting their
own view of the Act of 1967
(see [1973] 3 All E.R. at p. 848
quoting Winn L.J. at [1968] 2 Q.B. p. 370).
With respect this
carries exactly the opposite implication to that attached to
it by
the Court of Appeal. Winn L.J. was saying that so long as the
judge
was telling the jury that if they were sure that the accused
with all his defects
did nitend grievous bodily harm, that is
murder, but that the moment he
suggested or might be taken as
suggesting that the test was objective his
charge fell on the
wrong side of the line laid down by the 1967 Act.
At the end of the day there are, I think, two reasons
against formally
overruling Smith in virtue of our Practice
Direction as suggested by the
7
authors of Smith and Hogan. The
first is that in view of the diversity of
interpretation it is
difficult to know exactly what one is overruling. Indeed,
if the
extreme minimalising interpretations be adopted, there is little
or
nothing to overrule, or indeed little enough to require the
intervention of
Parliament in 1967. The second is that there are
at least two passages in
Smith of permanent value which on
any view ought not to be overruled.
The first is the passage at
the end of Lord Kilmur's opinion (at p. 335)
which disposes at
least in this context of the doctrine of Ashman (1858)
1 F.
& F. 88 regarding the nature of grivous bodily harm, and thus
excludes
the possibility of " murder by pinprick ". The
second is the earlier passage,
at page 327 where Lord Kilmuir
says:
" The unlawful and voluntary act must clearly be aimed at someone
" in order to eliminate cases of negligence or of careless or dangerous
" driving."
" The mother who kills her
imbecile or suffering child is just as
" guilty of murder as
is the man who kills for gain."
(See also the discussion on this
used by Lord Maugham A.C. [1942] A.C.
at p. 452.) On the other
hand " motive " can mean a " kind of intention "
(see
Glanville Williams op. cit p. 48). In this sense, in his direction to
the
jury, the judge (quoted above, and in the judgment of the
Court of Appeal)
has said: " It matters not if her motive was
to frighten Mrs. Booth ". See
also the discussion of this
sense by Lord Wright [1942] A.C. at p. 469.
I agree with the Court
of Appeal that it is desirable, to avoid confusion, to
use the
word " motive " in this context always in the first sense,
and I have
attempted so to do.
8
" An ' intention ' to my
mind connotes a state of affairs which the
" party '
intending '—I will call him X—does more than merely
con-
" template: it connotes a state of affairs which, on the
contrary, he
" decides, so far as in him lies, to bring
about, and which, in point
" of possibility, he has a
reasonable prospect of being able to bring
" about, by his
own act of volition."
" While that is an
inference which may be drawn, and on the facts in
" certain
circumstances must inevitably be drawn, yea if on all the facts
"
of the particular case it is not the correct inference, then it
should not
" be drawn."
" When people say that a
man must be taken to intend the natural
" consequences of his
acts, they fall into error. There is no ' must'
" about it.
It is only ' may '."
9
of what is done is the same
thing as the fact that the state of affairs is
intended. The
highest that it can be put in the context of the present set of
facts
is that what intended was to expose the inhabitants of the house
to
the serious risk of death or grievous bodily harm and not actually
to
cause death or grievous bodily harm. I do not think that these
propositions
are identical.
" Knowledge that the act
which causes death will probably cause the
" death of, or
grievous bodily harm to, some person, whether such
" person
is the person actually killed or not, although such knowledge
"
is accompanied by indifference whether death or grievous bodily
harm
" is caused or not, or by a wish that it may not be
caused."
" We do not think that the
passage cited from Stephen's Digest has
" ever been seriously
challenged as a correct statement of the law ".
" There was another and
larger view of the case. If a man did an
" act, iBore
especially if that were an illegal act although its immediate
"
purpose might not be to take life, yet if it were such that life
was
" necessarily endangered by it, if a man did an act not
with the purpose
" of taking life, but with the knowledge or
belief that life was likely
" to be sacrificed by it that was
not only murder by the law of England,
"but by the law of
probably every other country."
This
clearly applies the test of foresight, and the criterion of
probability
and not certainty, but the foresight described is of
danger to life, and not
grievous bodily harm even in the sense
defined in Smith. Like other
nineteenth century cases, the
direction given was at a time when no jury
could have the
prisoner's sworn testimony to consider, and when there was
no
adequate system of criminal appeal. Moreover, it is not really
satisfactory
to charge a jury on two parallel legal theories each
leading to the same
result and leave them with no means of saying
which of the two their
verdict is intended to follow. The jury
itself may well have founded their
verdict in Desmond entirely
on the doctrine of constructive malice to which,
at the time, the
defence had, it would seem, no possible answer.
10
" 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,
" not improbable, more than a mere possibility etc.
It is neither
" practicable or reasonable to draw a line at
extreme probability."
11
" difference in point of
legal distinction whether death results from a direct
"
intention to kill or from wilfully doing an act of which death is the
probable
" consequence." And again in a later passage, "
it is the wilful exposure of
" life to peril that constitutes
the crime ". The heart surgeon exposes his
patient to the
risk, but does everything he can to save his life, regarding
his
actions as the best or only means of securing the patient's
survival. He is,
therefore, not exposing his patient to the risk
without lawful excuse or
regardless of the consequences. The
reckless motorist who is guilty of
manslaughter, but not murder,
is not at least ordinarily aiming his actions at
anyone in the
sense explained in D.P.P. v. Smith at p. 327 of the
report.
If he were, it is quite possible that, as in Smith, he
might be convicted of
murder. In the field of guilty knowledge it
has long been accepted both for
the purposes of criminal and civil
law that
" a man who deliberately
shuts his eyes to the truth will not be heard
" to say that
he did not know it."
(See per Lord Reid in Southern
Portland Cement v. Cooper [1974] 1 All E.R.
at p. 893.) Cannot
the same be said of the state of intention of a man who,
with
actual appreciation of the risks and without lawful excuse,
wilfully
decides to expose potential victims to the risk of death
or really serious injury
regardless of whether the consequences
take place or not? This seems to me
to be the truth underlying the
statement of the law in Stephen's Digest, the
summing-up of
Cockburn C.J. in Desmond, and of Avory J. in Lumley and
of
those phrases in Smith in which it seems to be said that a
rational man
must be taken to intend the consequences of his acts.
It is not a revival of
the doctrine of constructive malice or the
substitution of an objective for a
subjective test of knowledge or
intention. It is the man's actual state of
knowledge and intent
which, as in all other cases, determines his criminal
responsibility.
Nor, for the like reason, does this set up an
irrebuttable
presumption. It simply proclaims the moral truth that
if a man, in full
knowledge of the danger involved, and without
lawful excuse, deliberately
does that which exposes a victim to
the risk of the probable grievous bodily
harm (in the sense
explained) or death, and the victim dies, the perpetrator
of the
crime is guilty of murder and not manslaughter to the same extent
as
if he had actually intended the consequence to follow, and
irrespective of
whether he wishes it. This is because the two
types of intention are morally
indistinguishable, although
factually and logically distinct, and because it is
therefore just
that they should bear the same consequences to the perpetrator
as
they have the same consequences for the victim if death ensues.
12
I, therefore, propose the
following propositions in answer to the question
of general public
importance.
(1) Before an act can be murder
it must be "aimed at someone" as
explained in D.P.P.
v. Smith at p. 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 D.P.P. v. 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. Nevertheless, for the reasons
I have given in
my opinion the appeal fails and should be dismissed.
Viscount Dilhorne
MY LORDS,
For some considerable time the appellant had had regular
sexual relations
with a Mr. Jones. In consequence of her having
some gynaecological
trouble those relations ceased and were not
resumed after she had had an
operation in 1968. She became
suspicious of Mr. Jones's relations with a
Mrs. Booth and very
jealous of her. She tried to break up that association
by the
writing of anonymous letters. In May, 1972, Mrs. Booth obtained
a
decree nisi for divorce from her husband. That decree was due
to be
made absolute towards the end of July, 1972, and then Mrs.
Booth would
have been free to marry Mr. Jones.
On the 15th July, 1972, at about 2 a.m. the appellant
drove a van to the
house where Mrs. Booth lived with her son and
two daughters aged, we
were told, 17 and 11. On her way there she
went past Mr. Jones's house
to see if he was there. The lights
were on so she decided that he was. She
did that, she said,
because she did not want to do any harm to Mr. Jones.
She parked
the van round the corner from Mrs. Booth's house. She took a
gallon
can of petrol from the van and poured petrol through the letter
box
in Mrs. Booth's front door. She then put newspaper in the
letter box and
lit it. The petrol ignited and the appellant said
that she realised that what
she had done was tremendously
dangerous to anyone living in the house.
She, however, did nothing
to alert the occupants of the house to the danger
she had put them
in or the Fire Brigade. She just drove to her home some
five miles
away.
Mrs. Booth and her son succeeded in escaping from the
house. Her two
daughters did not and were killed.
The appellant was charged with and convicted of their murder.
At the beginning of his summing-up Ackner J. told the
jury that a person
who unlawfully and deliberately causes the
death of another intending
either to kill or to do serious bodily
harm is guilty of murder. He said that
there was no dispute that
the appellant had killed the two children and that
it was not
suggested that the setting fire to the house was other than
a
deliberate act. He told the jury that the only question on which
they had to
focus their attention was the appellant's intent.
13
" The prosecution must
prove, beyond all reasonable doubt, that
" the accused
intended to (kill or) do serious bodily harm 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 prosecu-
" tion will have established
the necessary intent. It matters not if her
" motive was, as
she says, to frighten Mrs. Booth."
" 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
"
that act would result in death or serious bodily harm? "
" not with the purpose of
taking life, but with the knowledge or
" belief that life was
likely to be sacrificed by it, that was not only
" murder by
the law of England, but by the law of probably every other
"
country."
" (a) An intention
to cause the death of, or grievous bodily harm to,
" any
person, whether such person is the person actually killed or not;
" (b) Knowledge that
the act which causes death will probably cause
" the death
of, or grievous bodily harm to, some other person, whether
"
such person is the person actually killed or not, although such
know-
" ledge is accompanied by indifference whether death or
grievous bodily
" harm is caused or not, or by a wish that it
may not be caused ;
" (c) An intent to commit any felony whatever ;
" (d) An intent to
oppose by force any officer of justice on his way
" to, in,
or returning from the execution of the duty of arresting, keeping
"
in custody, or imprisoning any person whom he is lawfully entitled
"
to arrest, keep in custody, or imprison, or the duty of keeping the
14
" peace or dispersing an unlawful assembly,
provided that the offender
" has notice that the person
killed is such an officer so employed."
The Royal Commission on Capital Punishment (1949-1953)
in their Report
(Cmnd. 8932) said at p. 27 that this was the
statement of the modern law
most commonly cited as authoritative.
The Royal Commission did not
dissent from but endorsed Stephen's
statement that such knowledge amounted
to malice aforethought. In
paragraph 76 (p. 28) five propositions were stated
which, the
Report said, were commonly accepted. The fifth proposition
was:
" (v) It is murder if one person kills another by
an intentional act
" which he knows to be likely to kill or
to cause grievous bodily harm
" and may either be recklessly
indifferent as to the results of his act or
" may even desire
that no harm should be caused by it."
The propositions, the Report said, fell within
paragraphs (a) and (b) of the
Article of Stephen's
Digest and
" it has been generally agreed that they are
properly included in the
" category of murder "
and
in paragraph 473 it is stated: —
" Under the existing law as stated by Stephen the
question the jury
" have to consider in such a case is
whether the accused knew or was
" aware of the likely
consequences of his act: and we think that the law
" is
sound."
In R. v. Jakac (1960) Victoria Reports 367
the Full Court of the Supreme
Court of Victoria delivered a
judgment in which it was said that the Royal
Commission's fifth
proposition was clearly the law.
Stephen in his Digest treated such knowledge as a
separate head of malice
aforethought and distinct from those in
which intent is necessary. The
Royal Commission treated it as
justifying a conviction of murder even if the
accused did not
intend to kill or to do grievous bodily harm. If this view is
right,
then Ackner J. was wrong in telling the jury that proof of such
know-
ledge established the necessary intent.
On the other hand, Lord Devlin in a lecture he gave in
1954 (reported
in 1954 Criminal Law Review, p. 661) said that
where a man has decided
that certain consequences would probably
happen, then " for the purposes
" of the law he intended
them to happen, and it does not matter whether he
" wanted
them to happen or not... it is criminal intent in the strict sense."
Pearson L.J., as he then was, appears to have been of
the same opinion
for in Hardy v. Motor Insurers Bureau
[1964] 2 Q.B. 745 at p. 763 he
said: —
" Then this is the syllogism. No reasonable man
doing such an act
" could fail to foresee that it would in
all probability injure the other
" person. The accused is a
reasonable man. Therefore he must have
" foreseen, when he
did the act, that it would in all probability injure
" the
other person. Therefore he had the intent to injure the other
"
person."
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.
In my opinion, it follows if the second contention
advanced on
behalf of the appellant is rejected, that the question
certified
should be answered in the affirmative.
While I do not think that it is strictly necessary in
this case to decide
whether such knowledge establishes the
necessary intent, for, if Ackner J.
was wrong about that, it is
not such a misdirection as would warrant the
quashing of the
conviction as, even if it did not establish intent, it was
correct
in that such knowledge amounted to malice aforethought. I am
inclined
to the view that Ackner J. was correct. A man may do an act
with a
number of intentions. If he does it deliberately and
intentionally,
knowing when he does it that it is highly probable
that grievous bodily
15
harm will result, I think most people would say and be
justified in saying
that whatever other intentions he may have had
as well, he at least intended
grievous bodily harm.
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.
I now turn to the second contention advanced on behalf
of the appellant.
This has two facets; first, that the reference
to the intent to cause grievous
bodily harm has been based on the
law that killing in the course or further-
ance of a felony is
murder, and that when the Homicide Act, 1957, was
enacted
abolishing constructive malice it meant that it no longer sufficed
to
establish intent to do grievous bodily harm ; and, secondly,
that, if intent
to do grievous bodily harm still made a killing
murder, it must be intent to
do grievous bodily harm of such a
character that life was likely to be
endangered.
Committing grievous bodily harm was for many, many
years, and until
all felonies were abolished, a felony.
Consequently so long as the doctrine
of constructive malice was
part of the law of England, to secure a conviction
for murder, it
was only necessary to prove that the death resulted from an
act
committed in the course of or in furtherance of the commission
of
grievous bodily harm. But when one looks at the cases and the
old text
books, one does not find any indication that proof of
intent to do grievous
bodily harm was an ingredient of murder only
on account of the doctrine
of constructive malice. Indeed, one
finds the contrary.
Coke in his Institutes throws no light on this though in
3 Instit. p. 56
he went so far as to say that, if death resulted
from an unlawful act, it was
murder. In Hale's Pleas of the Crown
(1685) at p. 44 it is said that it is
murder
" If a man doe an act that apparently must
introduce harm and
" death ensue ",
and in his History of the Pleas of the Crown (published
in 1800) it is said
at p. 451 that malice which makes a killing
murder is of two kinds, malice
in fact and malice in law, and that
" Malice in fact is a deliberate intention of doing
some corporal
" harm to the person of another ". . . . "
It must be a compassing or
" designing to do some bodily
harm."
Hale gave as one instance where murder was to be implied
by law the
case where the killing was done by " a person that
intends a theft or
" burglary " (p. 465). He thus
distinguished constructive malice implied from
a killing in the
course of or in furtherance of another offence from malice
in
fact; and, for there to be malice in fact, it was enough that there
should
be an intention to do some bodily harm.
Stephen in his Digest also distinguished between intent
to kill or to do
grievous bodily harm and knowledge that death or
bodily harm was likely
to result (paragraphs (a) and (b))
from constructive malice (paragraphs (a)
and (d)),
and I can find no case to support the contention that a
direction
that an intent to do grievous bodily harm was regarded
and treated as a
direction based on constructive malice.
In R. v. Bubb & Hook (1850) 4 Cox C.C. 455
the jury was directed that
there must be an intention to cause
death or some serious bodily injury. In
R. v. Porter
(1873) 12 Cox C.C. 444 Brett J. told the jury that :-
" if the prisoner kicked the man, intending to
inflict grievous harm,
" and death ensued from it, he was
guilty of murder."
16
In R. v. Doherty (1887) 16 Cox C.C. 306 Stephens J. said: —
" What, then, is the intention necessary to
constitute murder? Several
" intentions would have this
effect; but I need mention only two in this
" case, namely,
an intention to kill and an intention to do grievous
" bodily
harm."
In R. v. Lumley (1911) 22 Cox C.C. 635
Avory J. told a jury that if the
accused had contemplated that
grievous bodily harm was likely to result,
it was murder. In R.
v. Gibbins & Procter (1918) Cr. App. R. 134 the
Court
of Criminal Appeal dismissed an appeal where the judge had
directed
the jury that it would be murder if the accused wilfully
and deliberately
withheld food from a child
" so as to cause her to weaken and to cause her
grievous bodily injury
" as a result of which she died."
In Director of Public Prosecutions v. Beard
[1920] A.C. 479 Lord Birken-
head, L.C., at p. 499 referred to
a charge of murder " based upon intention
" to kill or
to do grievous bodily harm " and in Holmes v. Director
of Public
Prosecutions [1946] A.C. 588 Lord Simon, with whose
speech the other
Members of the House agreed, referred at p. 598
to malice as the intention
to kill or to inflict grievous bodily
harm.
Killing with intent to do grievous bodily harm has thus
for many years
been regarded as murder, quite apart from the
doctrine of constructive malice.
This was recognised in the Report
of the Royal Commission on Capital
Punishment. Their five
propositions stated in paragraph 76 which were,
so the Report
said, generally accepted to be properly included in the category
of
murder, were
" all cases where the accused either intended to
cause death or
" grievous bodily harm or knew that his act
was likely to cause death
" or grievous bodily harm."
The Royal Commission went on to recommend the abolition
of constructive
malice, and in paragraph 123 suggested a clause
for inclusion in a Bill to
bring that about.
Section 1 of the Homicide Act, 1957, is in all material
respects similar
to the clause proposed. It would, indeed, be odd
if the Royal Commission
by recommending the abolition of
constructive malice had in fact proposed
the abolition of intent
to do grievous bodily harm as an ingredient of murder
when the
Commission had not intended and did not recommend that.
Parliament
may, of course, do more by an Act than it intends but if, as
in my
opinion was the case, intent to do grievous bodily harm was
entirely
distinct from constructive malice, then the conclusion
that Parliament did
so by the Homicide Act, 1957, must be
rejected. In my opinion R. v. Vickers
(supra) was
rightly decided and this House was right in saying that was so
in
Director of Public Prosecutions v. Smith (supra).
I now turn to the second facet of the appellant's
contention, namely, that
the words " grievous bodily harm "
are to be interpreted as meaning harm of
such a character as is
likely to endanger life. In R. v. Desmond (supra)
Cockburn
C.J. said that "knowledge or belief that life was likely to be
"
sacrificed " made a death murder. This may have been unduly
favourable
to the accused. Stephen in his Digest did not limit
grievous bodily harm to
harm likely to endanger life, though, as
Mr. McCullough pointed out, at p. 80
of his History of the
Criminal Law (1883) Stephen said that paragraphs (a)
and (b) of
his Article in his Digest and paragraph 174 of the draft
Criminal
Code produced by the Criminal Law Commission 1878-79
exactly corres-
ponded. The draft Code did not use the words "
grievous bodily harm " but
proposed that it would be murder
if
" the offender means to cause the person killed any
bodily injury
" which is known to the offender to be likely
to cause death."
Therefore, Mr. McCullough contended, when Stephen
referred to grievous
bodily harm he meant harm likely to cause
death. This inference was the
sole foundation for this part of his
argument.
17
" not necessary that such
harm should have been actually done, or
" that it should be
either permanent or dangerous, if it be such as
" seriously
to interfere with comfort or health, it is sufficient."
If the words bore the meaning
now contended for, there must have been
many murder cases in which
that was not explained to the jury and in which
there was
consequently a substantial misdirection. The Royal Commission
on
Capital Punishment in their review of the law did not suggest that
the
words had this limited meaning. Indeed, in paragraph 472 of
the Report
the following appears: —
" We should therefore
prefer to limit murder to cases where the
" act by which
death is caused is intended to kill or to ' endanger life '
" or is known to be likely
to kill or endanger life. But we do not
" believe that, if
this change is made, it would lead to any great
"
difference in the day to day administration of the law."
For these reasons in my opinion this appeal should be dismissed.
Lord Diplock
MY LORDS,
18
actus reus of the offence, as is the case with
manslaughter, but also towards
a particular evil consequence of
that act. As I shall endeavour to show,
this was not always so.
That it is so now is the consequence of the
enactment of section 1
of the Homicide Act, 1957, and (if the decision
of this house in
D.P.P. v. Smith [1961] A.C. 290 was right) of the enactment
of
section 8 of the Criminal Justice Act, 1967.
This appeal raises two separate questions. The first is
common to all
crimes of this class. It is: what is the attitude of
mind of the accused
towards the particular evil consequence of his
physical act that must be
proved in order to constitute the
offence? The second is special to the
crime of murder. It is: what
is the relevant evil consequence of his
physical act which causes
death, towards which the attitude of mind of
the accused must be
determined on a charge of murder?
Upon the first question I do not desire to say more than
that I agree
with your Lordships 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. What is common to both these states
of
mind is willingness to produce the particular evil consequence: and
this,
in my view, is the mens rea needed to satisfy a
requirement, whether imposed
by statute or existing at common law,
that in order to constitute the offence
with which the accused is
charged he must have acted with " intent" to
produce a
particular evil consequence or, in the ancient phrase which
still
survives in crimes of homicide, with " malice
aforethought".
I turn then to the second question. I believe that all
your Lordships are
agreed that if the English law of homicide were
based on concepts that are
satisfactory, both intellectually and
morally, the crime of murder ought
to be distinguished from less
heinous forms of homicide by restricting it
to cases where the
consequence of his act, which the accused desired or
foresaw as
likely, was the death of a human being. Where we differ is as
to
whether it is still open to this House to declare in its judicial
capacity that
this is now the law of England, or whether to define
the law of murder thus
would involve so basic a change in the
existing law that it could only
properly be made by Act of
Parliament. For my part I think that Parliament
itself has, by the
Homicide Act, 1957, made it constitutionally permissible
for this
House so to declare, and I believe that this House ought to do so.
Any discussion of the historical development of the law
of homicide is
complicated by the varying ways in which those who
wrote on this subject
from the seventeenth century onwards have
differentiated between malice
that is " express " and
malice that is " implied ". In the interests of clarity
I
shall endeavour to avoid these terms and speak instead of "
actual malice "
and " constructive malice ". By "
actual malice " I mean the attitude of
mind of the killer
towards the infliction of bodily injury on another person
at the
time he did the act that caused the death; by " constructive
malice "
I mean those circumstances which until the passing
of the Homicide Act,
1951, rendered killing murder without its
being necessary to inquire into
the attitude of mind of the killer
towards the infliction of bodily injury
on another person. For the
purposes of the present case the relevant
example of "constructive
malice" is where the killing was done in the
course or
furtherance of some felony other than homicide.
I readily concede that, prior to 1957, it had become
commonplace for
judges (myself included) to define the "
intent" which must be proved to
justify a conviction for
murder as an intent " to kill or to do grievous bodily
harm,"
and that this practice has continued since the passing of the
Homicide
Act, 1957, during which period it has received the
approval of the Court
of Criminal Appeal in R. v. Vickers
([1957] 2 Q.B. 664) and of this House
itself in D.P.P. v.
Smith.
My Lords, the now familiar expression " grievous
bodily harm " appears
to owe its place in the development of
the English law of homicide to its
19
use in 1803 in Lord
Ellenborough's Act (43 Geo.III cap.58), which made
it a felony to
shoot at, stab or cut any other person " with intent to
murder,
" maim, disfigure or disable ... or do some other
grievous bodily harm ".
There was a proviso that if the act
were committed "under such
" circumstances as that if
death had ensued therefrom the same would not
" in law have
amounted to the crime of murder " the accused was to
be
acquitted of the felony. In this context the " intent"
with which the act
was committed appears to be distinguished from
the " circumstances"
under which it was committed and
the latter to refer to such surrounding
circumstances as
self-defence, a sudden falling out, provocation or preventing
an
escape from lawful custody or apprehension.
" It is not necessary that
such harm . . . should be either permanent
" or dangerous: if
it be such as seriously to interfere with comfort or
"
health, it is sufficient."
20
such as robbery, rape or abortion, but relied solely on
his intent to do
physical harm to any person, the distinction
between constructive malice
and actual malice had no practical
consequences and in course of time came
to be overlooked.
21
It must be remembered that, judged by present-day
standards, we are
dealing with a violent age. Men were used to
carry deadly weapons and not
slow to resort to them. So, at the
beginning of the period Coke did not
classify as murder a killing
on " a sudden falling out". Later when this
defence
became merged in the general doctrine of provocation most of
the
cases with which the writers were pre-occupied involved the
use of deadly
weapons and it is not without significance that
Lord Ellenborough's Act
itself was concerned only with shooting,
stabbing and cutting.
Medical and surgical science were in a very primitive
state. Any bodily
injury, particularly if it involved risk of
sepsis through an open wound, might
well prove mortal although
to-day the likelihood of its resulting in death would
be
insignificant. It was not until the last quarter of the nineteenth
century
that antiseptics came into general use.
Until the nineteenth century the common law did not
recognise uncon-
summated attempts to commit a crime as being
criminal offences in them-
selves. So in relation to the crime
of murder judges were dealing with bodily
injuries which had in
fact been fatal, and so demonstrated to have been of a
kind which
could endanger life.
As stated by Sir Michael Foster it was accepted law in
the eighteenth
century that once the fact of killing was proved
the onus lay upon the
prisoner to prove facts negativing malice
aforethought unless such facts arose
out of the evidence produced
against him.
Until as late as 1898 persons accused of murder were i