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Cite as: [1974] UKHL 2, [1975] AC 55

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JISCBAILII_CASE_CRIME

    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,


    In my view the one point in this case is the intention which it is necessary
    to impute to an accused person in order to find him guilty of the crime of
    murder. Is it simply the intention to kill or cause grievous bodily harm (in
    the sense of really serious injury) as is commonly assumed, or is it enough
    that he intends wilfully to expose another to the risk of death or grievous
    bodily harm in the sense of really serious injury? I do not believe that
    knowledge or any degree of foresight is enough. Knowledge or foresight
    is at the best material which entitles or compels a jury to draw the necessary
    inference as to intention. But what is that intention? It is acknowledged
    that intention to achieve the result of death or grievous bodily harm in the
    sense of really serious injury is enough to convict. But may the intention
    wilfully to expose a victim to the serious risk of death or really serious
    injury also be enough? It is upon the answer to this question that, in my
    view, depends the outcome of the present appeal.

    On an indictment containing two counts alleging the murder of two female
    children, the appellant in this case pleaded guilty to manslaughter, but after
    a trial lasting three days was convicted of murder by a majority verdict of
    eleven to ore. The question in the appeal is whether the verdicts of murder
    can stand or whether verdicts of manslaughter should be substituted for
    them.

    The facts are simple, and not in dispute. In the early hours of Saturday,
    15th July 1972, the appellant set fire to a dwelling house in Coventry by
    deliberately pouring about half a gallon of petrol through the letter box and
    igniting it by means of a newspaper and a match. The house contained
    four persons, presumably asleep. They were a Mrs. Booth and her three
    children, a boy and the two young girls who were the subjects of the charges
    Mrs. Booth and the boy escaped alive through a window. The two girls
    died as the result of asphyxia by the fumes generated by the fire. The
    appellant's motive (in the sense in which I shall use the word " motive ")
    was jealousy of Mrs. Booth whom the appellant believed was likely to marry
    a Mr. Jones of whom the appellant herself was the discarded, or partly
    discarded, mistress. Her account of her actions, and her defence, was that
    she had started the fire only with the intention of frightening Mrs. Booth into
    leaving the neighbourhood, and that she did not intend to cause death or
    grievous bodily harm. The judge directed the jury:

    ' 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 ".

    The judge explained that he had put brackets round the words " kill or "
    and " death or " because he advised the jury to concentrate on the intent
    to do serious bodily harm rather than the intent to kill.

    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."

    There is also a more important third element latent in the decision to which
    I will return later, and which seems to justify the result, if not all the
    reasoning.

    The view taken above of Smith and of the 1967 Act is not enough to
    dispose of the present appeal. For, whatever may be said by way of criticism
    of the crucial passage in the judge's direction, it was impeccable at least
    in this, that it applied the jury's mind to a subjective test of what was the
    state of the mind of the accused. The question raised by Ackner J.'s charge
    to the jury is not whether he revived the passages in Smith which seem to
    suggest an objective test, but (i) whether, on the assumption that
    the test is subjective, foresight of the probable consequences is an alterna-
    tive species of malice aforethought to intention, or, as Pearson L.J.
    clearly suggests in Hardy v. Motor Insurers' Bureau [1964] 2 Q.B. at the
    top of p. 764, whether foresight of the probable consequence is only another
    way of describing intention and (ii) on the assumption that foresight can
    be used as an alternative or equivalent of intention whether a high degree
    of probability in that which is foreseen is enough. This seems to me the
    point in this case, and I do not find it altogether easy to decide. In order
    to equip myself to do so, I must embark on a brief enquiry into the meaning
    of some ordinary words. It has been pointed out more than once that
    " motive " has two distinct but related meanings. I do not claim to say
    which sense is correct. Both are used, but it is important to realise that
    they are not the same. In the first sense " motive " means an emotion
    prompting an act. This is the sense in which I used the term when I said
    that the admitted motive of the appellant was jealousy of Mrs. Booth. The
    motive for murder in this sense may be jealousy, fear, hatred, desire for
    money, perverted lust, or even, as in so called " mercy killings ", compassion
    or love. In this sense motive is entirely distinct from intention or purpose.
    It is the emotion which gives rise to the intention and it is the latter and
    not the former which converts an actus reus into a criminal act. Thus as
    Smith and Hogan point out (op. cit. p. 47)

    " 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.

    It is, however, important to realise that in the second sense too, motive,
    which in that sense is to be equated with the ultimate " end " of a course
    of action, often described as its " purpose " or " object ", although " a kind
    " of intention". is not co-extensive with intention, which embraces, in
    addition to the end, all the necessary consequences of an action including
    the means to the end and any consequences intended along with the end.

    8

    In the present case the appellant's " motive "—in the second sense—may
    have been to frighten Mrs. Booth. This does not exclude, and the jury
    must have affirmed, the intention to expose the sleepers in the house to
    the high probability of grievous bodily harm and in many cases it may
    involve an actual intention to kill or cause grevious bodily harm. Thus,
    also, in a Victorian melodrama the villain's motive—in the second sense—
    or his " end " his " purpose ", " object" or " intention " may have been
    to acquire an inheritance. But this does not exclude, and may involve, the
    intention to slay the rightful heir, or abduct his sister. Or again, in the
    Law Commission's report on D.P.P. v. Smith the example is given where
    the end is to be paid insurance monies, the means is to blow up an aircraft
    in flight, and the inseparable consequence is the death of passengers and
    crew.

    I know of no better judicial interpretation of " intention " or " intent"
    than that given in a civil case by Asquith LJ. (Cunliffe v. Goodman [19501]
    2 K.B. 237) when he said at p. 253 :

    " 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."

    If this be a good definition of " intention " for the purposes of the criminal
    law of murder, and so long as it is held to include the means as well as the
    end and the inseparable consequences of the end as well as the means, I
    think it is clear that " intention " is cleariy to be distinguished alike from
    " desire " and from foresight of the probable consequences. As the Law
    Commission pointed out in their disquisition on D.P.P. v. Smith, a man
    may desire to blow up an aircraft in flight in order to obtain insurance
    monies. But if any passengers are killed he is guilty of murder, as their death
    will be a moral certainty if he carries out his intention. There is no difference
    between blowing up the aircraft and intending the death of some or all of
    the passengers. On the other hand, the surgeon in a heart transplant opera-
    tion may intend to save his patient's life, but he may recognise that there
    is at least a high degree of probability that his action will kill the patient.
    In that case he intends his patient's life, but he foresees as a high degree
    of probability that he will cause his death, which he neither intends nor
    desires, since he regards the operation not as a means to killing his patient,
    but as the best, and possibly the only, means of ensuring his survival.

    If this be the right view of the meaning of words, the question certified
    in this case must, strictly speaking, be answered in the negative. No doubt
    foresight and the degree of likelihood with which the consequences are fore-
    seen are essential factors which should be placed before a jury in directing
    them as to whether the consequences are intended. But the true view is that
    put forward by Byrne J. in D.P.P. v. Smith [1961] A.C. at p. 300:

    " 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."

    This is in accordance with the views of Denning L.J. in Hosegood v.
    Hosegood
    when he says (66 T.L.R. 738):

    " 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 '."

    This passage was cited by Lord Porter in Lang v. Lang [1955] A.C. 402
    at p. 425, where the perfectly proper distinction, noted above, that a conse-
    quence may be intended though it is not desired, is also drawn, and should
    be taken as established.

    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

    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.

    But this, again, does not dispose of the matter. Another way of putting
    the case for the Crown was that, even if it be conceded that foresight of the
    probable consequences is not the same thing as intention, it can, nevertheless,
    be an alternative type of malice aforethought, equally effective as intention
    to convert an unlawful killing into murder. This view, which is inconsistent
    with the view that foresight of a high degree of probability is only another
    way of describing intention, derives some support from the way in which
    the proposition is put in Stephen's Digest, Art. 223, where it is said that
    malice aforethought for the purpose of the law of murder includes a state
    of mind in which there is

    " 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."

    If this be right, Ackner J.'s direction can be justified on the grounds that
    such knowledge is itself a separate species of malice aforethought, and not
    simply another way of describing intention. Apart from D.P.P. v. Smith
    (if and insofar as it may be regarded as authority for this proposition) the
    diligence of counsel was unable to discover an English case directly support-
    ing this view, but persuasive authority for it exists in the cast of Jakac
    [1961] Vic. L.R. 367 where the Supreme Court of Victoria expressly adopted
    the passage from Stephen's Digest cited above and said at p. 370:

    " We do not think that the passage cited from Stephen's Digest has
    " ever been seriously challenged as a correct statement of the law ".

    Further support for the view of the law embodied in this proposition can
    be derived from the direction of Avory J. to the jury in Lumley (1911)
    22 Cox C.C. 635 and perhaps from the direction in Ward [1956] 1 Q.B. 351,
    described by the Court of Criminal Appeal in Smith as the " high water
    mark" ([1961] A.C. at p. 301) and not to be relied on now as a fair
    direction in other respects in the light of the Criminal Justice Act, 1967, s. 8.
    Reference was also made to the 19th century case of Desmond v. Barrett
    (1868) Times Newspaper 28th April, 1868, in which Cockburn C.J. after
    expounding the doctrine of constructive malice, which then applied, said
    this:

    " 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

    At this point counsel on both sides addressed a number of arguments
    to the House based on principle and public policy. Of these the most
    notable were as follows:

    1. Counsel for the Crown urged the necessity of treating deaths such
      as any arising from the recent bomb outrages as murder. Reference was
      made to the 19th century case of Desmond (Times Newspaper 28th April,
      1868, supra.). These cases, however, must surely be judged like any other
      on their facts. If murder consists, and consists only, in slaying with intent
      to kill, or intent to cause grievous harm to some person, a jury must decide
      the matter after taking into account all relevant circumstances including
      any warnings given, and any evidence tendered on behalf of the accused,
      and come to the appropriate conclusion. There should be no difficulty in
      securing convictions in appropriate cases. If, on the other hand, the
      mental ingredient in murder may consist in the deliberate exposure of
      potential victims to the substantial risk of death or grievous bodily harm,
      in the actual knowledge that such risk is being incurred, then an appropriate
      direction to that effect can be made. I do not think that it is appropriate
      for this House in its judicial capacity to be unduly swayed by motives of
      public policy in defining crimes which have been so long before the courts
      as have murder and manslaughter.

    2. Counsel for the defence argued that actual foresight of a high degree
      of probability was too indefinite a phrase to enable juries consistently to
      administer this important branch of the law. Reference was made to an
      observation of Lord Reid in a recent civil case (Southern Portland Cement
      v. Cooper [19741 1 All E.R. 87 at p. 94) with which I respectfully agree.
      Lord Reid said :

    " 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."

    If I were to accept the direction of Ackner J., as correct in the present case
    for all purposes, or to answer without qualification the question certified
    in the affirmative, I should, I think, be driven to draw the line in a criminal
    case of high importance at precisely the point at which it was said
    to be neither practicable nor reasonable to do so.

    I must, however, qualify the negative answer I have proposed to the
    question certified as of general public importance. For the reasons I have
    given, 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. It is the absence
    of intention to kill or cause grievous bodily harm which absolves the heart
    surgeon in the case of the transparant, notwithstanding that he foresees as a
    matter of high probability that his action will probably actually kill the
    patient. It is the presence of an actual intention to kill or cause grievous
    bodily harm which convicts the murderer who takes a very long shot at his
    victim and kills him notwithstanding that he thinks correctly as he takes his
    aim that the odds are very much against his hitting him at all.

    But what are we to say of the state of mind of a defendant who knows
    that a proposed course of conduct exposes a third party to a serious risk
    of death or grievous bodily harm, without actually intending those conse-
    quences, but nevertheless and without lawful excuse deliberately pursues that
    course of conduct regardless whether the consequences to his potential victim
    take place or not? In that case, if my analysis be correct, there is not merely
    actual foresight of the probable consequences, but actual intention to expose
    his victim to the risk of those consequences whether they in fact occur or not.
    Is that intention sufficient to reduce the crime to manslaughter'notwithstanding
    a jury's finding that they are sure that it was the intention with which the act
    was done? In my opinion, it is not, and in this my opinion corresponds
    with the opinion of the Commissioners on the Criminal Law, Fourth Report
    (1839), when they said, "Again it appears to us that it ought to make no

    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.

    This is not very far from the situation in this case. The jury appear to
    have taken this as a carefully premeditated case and that this was so can
    hardly be disputed, and, though it was disputed, the jury clearly rejected
    this view. The appellant had made her way to the house in a van in the
    early hours of the morning. She took with her a jerry can containing at
    least half a gallon of petrol. As she passed Mr. Jones' house she carefully
    made sure that he was in his own home and not with Mrs. Booth, because,
    as she said, she did not want to do Mr. Jones any harm. She parked the
    van at a distance from Mrs. Booth's house, and when she got to the front
    door she carefully removed a milk bottle from the step in case she might
    knock it over and arouse somebody by the noise. And when she had started
    the fire she crept back to her van and made off home without arousing
    any one or giving the alarm. Once it is conceded that she was actually and
    subjectively aware of the danger to the sleeping occupants of the house in
    what she did. and that was the point which the judge brought to the jury's
    attention, it must surely follow naturally that she did what she did with the
    intention of exposing them to the danger of death or really serious injury
    regardless of whether such consequences actually ensued or not. Obviously
    in theory, a further logical step is involved after actual foresight of the
    probability of danger is established. But in practice and in the context of
    this case the step is not one which, given the facts, can be seriously debated.
    For this reason I do not think the summing-up can be faulted, since the judge
    drew the jury's attention to the only debatable question in the case, and
    gave them a correct direction in regard to it.


    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

    He had written down, and he had handed to the jury, his direction with
    regard to intent. It was in the following terms:

    " 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."

    In the light of that direction and their verdict one must take it that the jury
    were satisfied that the appellant knew that, when she set fire to the house,
    it was highly probable that she would cause serious bodily harm.

    The appellant's appeal to the Court of Appeal (Criminal Division) on the
    ground that this was a misdirection was dismissed, but that Court granted
    leave to appeal to this House, certifying that the following point of law
    was of general public importance : —

    " 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? "

    It is to be observed that Ackner J. in his direction to the jury said that such
    knowledge 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.

    In this House Mr. McCullough for the appellant contended that the ques-
    tion certified should be answered in the negative. He submitted that
    knowledge that a certain consequence was a highly probable consequence
    does not establish an intent to produce that result. " All consequences that
    " are foreseen are not", he said, " necessarily intended ".

    He also contended that the direction given by Acker J. was erroneous
    in another respect, namely, that, despite the decision in R. v. Vickers [1957]
    2 O.B. 664 and the decision of this House in Director of Public Prosecutions
    v. Smith
    [1961] A.C. 290 to the contrary, intent to do grievous bodily harm
    did not, nor did knowledge that such harm was the probable result, suffice
    to make a killing murder. For it to be murder, he contended that the intent
    must be to kill or to endanger life or, if knowledge was enough, knowledge
    that the act would kill or endanger life.

    With regard to his first contention, so long ago as 1866 Cockburn C.J.
    at the Central Criminal Court in the Fenian trials, R. v. Desmond & Ors.
    (Times Newspaper 28th April, 1868), directed the jury that 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."

    In his Digest of the Criminal Law, published in 1877, Sir James Stephen
    defined " malice aforethought " as involving the following states of mind:

    " (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

    In R. v. Ashman (1858) 1 F. & F. 88 Willes J. said in a case where a man
    was charged with shooting with intent to do grievous bodily harm, that it
    was

    " 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."

    Since then that interpretation has in a number of cases been placed on the
    words " grievous bodily harm " in murder and other cases. Donovan J. in
    Director of Public Prosecutions v. Smith (supra) used it. So far from grievous
    bodily harm being limited to harm likely to endanger life, since Ashman
    its meaning has been extended. This extension was terminated by the decision
    in Director of Public Prosecutions v. Smith, Viscount Kilmuer saying that
    there was no warrant for giving the words a meaning other than that which
    the words convey in their ordinary and natural meaning.

    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."

    In the same paragraph it is stated that Stephen expressed the opinion that
    to substitute " bodily injury known to the offender to be likely to cause
    " death " would to some extent narrow the definition. So little weight can
    be attached to the inference which we are asked to draw from the comparison
    of the Article in his Digest with the provisions of the draft Criminal Code
    (see supra).

    Our task is to say what, in our opinion, the law is, not what it should be.
    In the light of what I have said, in my opinion, the words " grievous bodily
    " harm " must, as Viscount Kilmuir said, be given their ordinary and natural
    meaning and not have the gloss put on them for which the appellant
    contends.

    The House can, it is now recognised, review its previous decisions. I see
    no reason to review its decision in Director oj Public Prosecutions v. Smith
    (supra) on the questions raised in this case. No question here arises of any
    objective or subjective test, for the jury must be taken to have found that
    the appellant knew it was highly probable that serious bodily harm would
    be caused.

    To change the law to substitute " bodily injury known to the offender to
    " be likely to cause death " for " grievous bodily harm " is a task that should,
    in my opinion, be left to Parliament if it thinks such a change expedient.
    If it is made, an accused will be able to say: True it is that I intended
    grievous bodily harm or that I knew such harm was likely to result but I
    never intended to kill the dead man or to put his life in danger and I did
    not know that by doing him serious bodily harm I would put his life in
    danger. But I share the view of the majority of the Royal Commission that
    such a change would not 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,

    What distinguishes murder from manslaughter today is that murder now
    falls within the class of crime in which the mental element or mens rea
    necessary to constitute the offence in English law includes the attitude of
    mind of the accused not only towards his physical act itself, which is the

    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.

    I have found no trace of the actual expression " grievous bodily harm "
    being used before 1803, by writers on the law of homicide or by judges, to
    describe what was a sufficient evil intention to constitute that " malice
    " aforethought" that was the badge of murder. Apart from minor piece-
    meal exceptions of assaults in particular circumstances which had been made
    felonies by earlier statutes, until the passing of Lord Ellenborough's Act,
    assaults, however serious their physical consequences, were classified as no
    more than misdemeanours unless they resulted in death. So if intention to
    cause physical injury short of death was sufficient " malice aforethought"
    for the crime of murder, this must at that time have been because it was
    " actual malice " and not " constructive malice " implied by law when the
    act that caused the death was done in the course of furtherance of some
    other felony.

    The felony created by Lord Ellenborough's Act was one in which the
    intent with which the physical act was done was a necessary ingredient of
    the offence; but the intent here, unlike that needed to constitute actual
    malice in the offence of murder, was defined in the Statute itself. Conse-
    quently after the passing of Lord Ellenborough's Act, wherever the act that
    caused the death was shooting, stabbing or cutting, it became constructive
    malice and so made the killing murder if the intent with which the act was
    done was to do any " grievous bodily harm " within the meaning of the
    statute. This provision was re-enacted in 1828 (9 Geo. IV cap. 31) and
    remained in force until it was replaced by section 18 of the Offences Against
    the Person Act, 1861. which extended the felonious offence to causing
    grievous bodily harm by any means if done " with intent to maim, disfigure
    " or disable ... or to do some other grievous bodily harm ", and omitted
    the proviso.

    The expression " grievous bodily harm " in the earlier statutes had been
    construed by Graham B. in R. v. Cox ((1818) Russ & Ry. 362) and Willes J.
    in R. v. Ashman ((1858) 1 F. & F. 88). In the words of Willes J.

    " 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."

    Until the decision of this House in D.P.P. v. Smith (ubi sup.) this statement
    of Willes J. had been accepted as authoritative upon the meaning of this
    expression in the Offences Against the Person Act, 1861, which was passed
    shortly after it.

    Neither R. v. Cox nor R. v. Ashman was concerned with a charge of
    murder: but the effect of the acceptance of Willes J.'s definition was to make
    it constructive malice sufficient to support a charge of murder if the act
    that caused the death was done with the intent seriously to interfere with
    the comfort or health of any person, even though that act was not one
    foreseen as being in the least likely to endanger life.

    In the result, so long as the doctrine of constructive malice continued to
    be part of the English law of murder, it ceased to matter whether the
    actual intent with which the act that caused the death was done was an
    intent to do " grievous bodily harm " within the meaning of the successive
    statutes or some more heinous intent that might have had to be proved in
    order to show actual malice sufficient to constitute the crime of murder at
    common law. So where, as in the generality of murder charges, the prosecu-
    tion did not rely upon the intent of the accused to commit some other felony


    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.

    In 1957 all this was altered. The doctrine of constructive malice was
    abolished by section 1 of the Homicide Act, 1957. So it was no longer
    sufficient on a charge of murder to prove that the accused had killed another
    person in the course or in furtherance of the statutory offence under section 18
    of the Offences of the Person Act, 1861, for which the only intent necessary
    was an intent to " do grievous bodily harm " as that expression in the statute
    had been construed by the courts. It became necessary to prove that his
    intent was such as would have amounted to actual malice at common law
    if none of the statutes from Lord Ellenborough's Act onwards had been
    passed.

    The passing of the Homicide Act, 1957, thus required the courts to embark
    upon an inquiry in which the first step was to ascertain in what terms judges
    were directing juries at the close of the eighteenth century as to the state of
    mind of the accused which had to be proved to sustain a charge of murder
    on the ground of actual malice. If that were the end of the inquiry, however,
    and judges were again to direct juries in the same terms as their eighteenth
    century predecessors, the effect of the passing of the Homicide Act, 1957,
    would have been to set back the clock two hundred years. To do this would
    frustrate the underlying principle which is the justification for retaining the
    common law as a living source of rules binding upon all members of con-
    temporary society in England. The rules of which it is the source, cannot
    be unchanging. In the field of crime their purpose is to discourage conduct
    which is commonly accepted by Englishmen to be harmful to society in the
    circumstances in which men and women live to-day ; not in the circumstances
    of two centuries ago. They must reflect contemporary views of what is just,
    what is moral, what is humane, and not those current in an earlier and more
    primitive or violent age. For unless they do, the system of criminal justice
    will break down. The unique combination of the functions of judge and
    jury in a criminal trial, the absence of any means of impugning a jury's
    verdict of acquittal, or of questioning a direction by the judge which states
    the law in a way unduly favourable to the accused, have the practical conse-
    quence that effect is not given to a criminal law if it outrages the instinctive
    sense of justice of judges and of juries alike.

    So with the passing of the Homicide Act, 1957, the courts were faced with
    a dual task: first, to discover as a matter of historical research what state of
    mind of the accused was regarded by the eighteenth century judges as con-
    stituting actual malice for the purposes of the crime of murder ; and, secondly,
    to decide in what respects the views on this matter of subsequent generations
    of judges, if all of them were wise, would have been modified to take account
    of the way in which material circumstances and social concepts had been
    developed throughout the nineteenth and twentieth centuries—a task which
    presents a challenge without precedent to the wisdom of those upon whom
    this decision rests.

    The material for the task of historical research is scanty. There was no
    systematic contemporaneous reporting of criminal trials before the nineteenth
    century. There was no check upon how individual judges directed juries on
    the criminal law, unless the judge himself chose to reserve a point of law for
    the informal consideration of his brother judges at Serjeant's Inn—and even
    such reports as there are of the opinions expressed by all the judges on points
    of law which were reserved, are sparse and haphazard. The major sources
    of information are the works of institutional writers on the subject, starting
    with Coke in 1612, followed by Hale in 1685, by Foster J. in 1762 and
    finishing with East in 1803. They were the subject of detailed critical analysis
    by Sir James Stephen in the nineteenth century in his Digest of the Criminal
    Law written in 1877 and History of Criminal Law written in 1883.

    If what was written before the nineteenth century about the degree of
    violence that must have been intended by the accused in order to support a
    charge of murder is to be properly understood, there are several matters to be
    borne in mind.

    21

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. Until as late as 1898 persons accused of murder were i