Regina (Respondent)
v.
Moloney (Appellant) (On Appeal from the Court of Appeal
(Criminal Division))
JUDGMENT
Die Jovis 21° Martii 1985
Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Moloney, That the Committee
had heard Counsel on Monday the 28th and Tuesday the 29th
days of January last upon the Petition and Appeal of Alistair
Baden Roy Moloney praying that the matter of the Order set
forth in the Schedule thereto, namely an Order of Her
Majesty’s Court of Appeal (Criminal Division) of the 8th day
of June 1984, might be reviewed before Her Majesty the Queen
in Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioner might have
such other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet; and Counsel
having been heard on behalf of the Director of Public
Prosecutions (on behalf of Her Majesty) Respondent to the
said Appeal, and due consideration had this day of what was
offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of her Majesty’s Court of
Appeal (Criminal Division) of the 8th day of June 1984
complained of in the said Appeal be, and the same is hereby,
Set Aside save for the grant of legal aid and that the
verdict of murder be, and the same is hereby, also Set Aside
and a verdict of manslaughter substituted: And it is further
Ordered, That the Certified Question be answered in the
negative: And it is also further Ordered, That the Cause
be, and the same is hereby, remitted back to the Court of
Appeal (Criminal Division) for hearing at the earliest
possible date to determine the appropriate sentence.
Cler: Parliamentor:
HOUSE OF LORDS
REGINA (RESPONDENT)
V.
MOLONEY (APPELLANT)
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL
DIVISION))
Lord Chancellor
Lord Fraser of Tullybelton
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Bridge of Harwich
LORD HAILSHAM OF ST. MARYLEBONE, L.C.
My Lords,
For the reasons which appear in the speech about to be
delivered by my noble and learned friend Lord Bridge of Harwich,
which I have had the privilege of reading in draft and with which
I agree, the disposal of this case cannot be in doubt. The appeal
must be allowed. The verdict of murder must be set aside. A
verdict of manslaughter must be substituted. The case must be
remitted to the Court of Appeal (Criminal Division) to determine
the appropriate sentence. The case must be listed for hearing at
the earliest possible date. The appellant has been in custody since
November 1981, since the date of his conviction on a life sentence
for murder, which, on any view, must be treated as unsafe and
unsatisfactory.
I agree with my noble and learned friend that the certified
question must be answered in the negative owing to the presence
of sub-paragraph (b) in the question as certified, and I agree with
the reasons which have lead my noble and learned friend to that
conclusion.
I do, however, feel constrained to add the sense of deep
distress I feel at the course which this unhappy and cautionary
tale has taken in order to reach your Lordships’ House. It has
only come by here by leave of your Lordships. That leave could
not have been given had the Court of Appeal not certified a point
of law of general public importance to have been involved.
Strictly speaking that question, though now, I hope, about to
be satisfactorily answered, did not arise. It did not arise because,
as my noble and learned friend has demonstrated, the verdict was
already unsafe and unsatisfactory for a simpler and more
fundamental reason. On a true analysis of the evidence, the real
defence was never properly left to the jury with an appropriate
Woolmington [1935] AC 462 direction.
This gives rise to all the more concern because the
committing justices, men and women unqualified in the law, had
already come to the conclusion that, on a true analysis of the
facts, only a committal for manslaughter and not murder was
justified, and, on arraignment, the appellant had given the
prosecution and the court yet another opportunity to analyse the
matter correctly by tendering a plea of guilty to manslaughter
which, it seems, was not acceptable, and in any event not
accepted.
I do not wish to qualify in any way what my noble and
learned friend is about to say in answer to the certified question.
It had already been pointed out by Wien J. in Reg. v. Belfon
[1976] 1 W.L.R. 741, 747 that it is not foresight but intention
which constitutes the mental element in murder, and the
undesirability of elaborating unnecessarily on the meaning of
intention in all but exceptional cases had already been emphasised
by Lawton L3. in Reg. v. Beer (1976) 63 Cr.App.R. 222, 225. In
the same place Lawton LJ. had also emphasised the very unusual
nature of the facts in Reg. v. Hyam [1975] AC 55 to which I had
ventured to draw the attention of the House at p. 78 of the
report. At this point I feel that I should insert a word of
personal explanation. The innocent victims who perished in the
fire caused by Mrs. Hyam were not the target of the appellant’s
malice, which was solely directed, or to use Viscount Kilmuir
L.C.’s phrase “aimed,” at her rival in love who was asleep upstairs
and, who, with a small boy was, in the event, unharmed. It was
for this reason that I made reference to Viscount Kilmuir’s speech
in Director of Public Prosecutions v. Smith [1961] A.C. 290, 327.
Further, the intention of the appellant in Reg. v. Hyam [1975]
A.C. 55 was made apparent by two separate sets of facts, set out
on p. 78 of the report. These were (1) that, prior to setting in
train her criminal plan Mrs. Hyam first ascertained that her
former lover was not in the house and therefore safe, thus making
it plain that her intention was to expose those who were in the
house to danger to their lives, and (2) that she took elaborate
precautions to make sure that her actions did not awake the
sleepers in the house, thus making it doubly clear that her
intention was to expose them to whatever danger would be
involved in the fire. I certainly did not intend by my observations
to fall either into the trap exposed in this case by my noble and
learned friend of opening up a charge of murder in “motor
manslaughter” cases which are the result of criminal negligence or
recklessness and not intention, or to excuse the hypothetical
terrorist in my noble and learned friend’s bomb disposal case
whose intention may well prove to have been obvious. However,
as I am content to accept my noble and learned friend’s
formulation in the present appeal, these observations are now, I
suppose, of purely historical interest. I do not think I fell into
either error. But if I did, I would clearly have been wrong.
In the end justice in this case will have been done, but, in
my view, at the end’ of an unduly long and circuitous route. It
would have been done at the trial if the court and the prosecution
had followed the very sensible course taken by the committing
justices, or accepted the very proper plea tendered on behalf of
the defence. It would have been done on appeal had the Court
analysed correctly the true nature of the defence emerging from
the evidence and noticed the fact that it had not been properly
put to the jury. I conclude with the pious hope that your
Lordships will not again have to decide that foresight and
forseeability are not the same thing as intention although either
may give rise to an irresistible inference of such, and that matters
which are essentially to be treated as matters of inference for a
jury as to a subjective state of mind will not once again be
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erected into a legal presumption. They should remain, what they
always should have been, part of the law of evidence and
inference to be left to the jury after a proper direction as to
their weight, and not part of the substantive law.
LORD FRASER OF TULLYBELTON
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Bridge of Harwich. I agree
with it and for the reasons given by him I would allow the appeal
and make the other orders which he suggests.
LORD EDMUND-DAVIES
My Lords,
I have had a like advantage, and I too would allow the
appeal and make the orders indicated in the speech of my noble
and learned friend, Lord Bridge of Harwich, with which I am in
respectful and total agreement.
LORD KEITH OF KINKEL
My Lords,
I have had the benefit of reading in draft the speech of my
noble and learned friend, Lord Bridge of Harwich. I agree with it,
and for the reasons he gives I too would allow the appeal.
LORD BRIDGE OF HARWICH
My Lords,
In the early hours of 22 November 1981, the appellant fired
a single cartridge from a twelve-bore shotgun. The full blast of
the shot struck the appellant’s stepfather, Patrick Moloney, in the
side of the face at a range of about six feet and killed him
instantly. According to the police surgeon, who was on the scene
within an hour of the shooting, the whole of the skull had in fact
been destroyed, leaving just the root of the neck.
Behind this shocking event lies a tragic story. In November
1981 the appellant was aged 22. He was a serving soldier in the
Gordon Highlanders and was at the material time on leave at the
home of his mother and stepfather, having returned from duty in
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Belize in South America. He had been in the army since
November 1978 and had served in Northern Ireland, in this country,
and finally in South America.
There is no doubt that the appellant was one of a united,
happy family. His mother had married the victim, Patrick
Moloney, when the appellant was a very small boy. The appellant,
at some stage, changed his name to Moloney. To all intents and
purposes Patrick Moloney acted as a father to the appellant and
was treated by the appellant as such. The undisputed evidence at
the appellant’s trial was that the stepfather and stepson enjoyed a
happy and loving relationship with each other.
On 21 November 1981 there was a dinner party at the home
of Mr. and Mrs. Moloney to celebrate the ruby wedding anniversary
of Mrs. Moloney’s father and mother, the appellant’s maternal
grandparents. The party was a convivial one. Drink flowed
freely. Both Patrick Moloney and the appellant drank a great deal
of wine and spirits. By 1.00 a.m. in the morning of 22 November
all the members of the family had retired to bed except the
appellant and his stepfather. They were heard downstairs laughing
and talking in an apparently friendly way.
Shortly before 4.00 a.m. on 22 November the grandfather
was awakened by the sound of a shot. He immediately came
downstairs and found the appellant already on the telephone to the
police station. The appellant said to the police officer who
answered his call: “I’ve just murdered my father.” He gave the
address of the Moloney home.
Two police patrol officers arrived on the scene at 4.09 a.m.
The appellant’s breath smelt strongly of alcohol, his eyes were
bloodshot and he was unsteady on his feet, but his manner was
calm and collected.
The police officers looked into the room where the shooting
had taken place and saw the body of the deceased in an armchair
by the fireplace. There was a double-barrelled shotgun positioned
between the dead man’s knees; it was broken and pointing down
towards the floor. The barrels appeared to be unloaded. It is
appropriate to add at this point that later investigation revealed
that the deceased had a live cartridge on his knee. A second
shotgun, obviously that from which the fatal shot had been fired,
was lying on the couch on the opposite side of the room.
The appellant was taken to the police station. At about
4.30 a.m. he was in the detention room in the company of one of
the police patrol officers, a Constable Dighton, not a C.I.D.
officer. According to Constable Dighton, at about this time, the
appellant made two oral statements which were to play some
significant part in his trial. At first he said: “I didn’t want to kill
him. It was kill or be killed. I loved him, I adored him.” A
little later, he said:
“It all started because I wanted to leave the army. I went
and got the guns and took the cartridges out of the
cupboard. We both started to load the guns. I was quicker
than him. He’s got a bad arm; I should have realised. I
loaded the gun before him and pointed it to him. I said:
– 4 –
“You’ve lost.’ He said: ‘You wouldn’t dare pull the trigger.’
I did and he’s dead. If I hadn’t, he would have done and he
would have been sitting here instead of me.”
It is right to emphasise that neither of these statements was in
writing. A note purporting to record his recollection of what had
been said was made by Constable Dighton some time after the
event. As will be seen, these two very brief statements by no
means accorded with the full account which the appellant shortly
afterwards gave to two detective officers in a form which was
recorded and signed by him.
At 5.45 a.m. the appellant was examined by a doctor. His
breath smelt strongly of alcohol and his tongue was dry and
furred. His co-ordination was poor; he had difficulty in
unbuttoning his shirt, and he tended to sway on his feet and to
walk with an unsteady gait. At 3.50 a.m. the doctor took a
sample of blood from the appellant. This revealed upon later
analysis that the proportion of alcohol in the blood at that time
was 157 milligrams of alcohol per 100 millilitres of blood, i.e.,
almost twice the permitted limit of alcohol in the blood above
which it becomes an offence to drive a motor vehicle.
Following his examination by the doctor, the appellant was
interviewed by the acting detective chief superintendent,
Superintendent Cole, and Detective Sergeant Fletcher. Sergeant
Fletcher made a full written record of this interview which the
appellant in due course signed as correct. It is in the course of
this record that one reads the appellant’s full account of the
tragic events at his family home on the morning of 22 November.
He has, in all essentials, adhered to that account ever since. The
material part of the statement reads as follows:
“It started with a dinner party which was thrown for my
grandparents’ fortieth wedding anniversary. Towards the
end, we all had a lot to drink and our guests had left and I
told me Dad I wanted to leave the army. He disagreed
with me and started to outline his reasons for disagreeing
with me. It was obviously set for being a long discussion so
my mother, my sister and grandparents went to bed. We
had a couple more drinks while the discussion went on and I
was very drunk, and I suspect he was as well. At this point
I have to become vague because the conversation came
round to personal prowess and in particular with a shotgun.
Me Dad claimed that he could not only outshoot me but
outload me, outdraw me, i.e. he was faster than me, and
claimed even with a crippled left arm he was still faster
than me. I disagreed with him and said: ‘Don’t be silly’ or
words to that effect. In fact we were swearing at each
other at this time. So he said: ‘We’ll prove it. Go and get
two of the shotguns.’ He has four, I have one. So I went
upstairs and got my shotgun and I got his shotgun. I gave
him his shotgun and he told me to get two cartridges out of
a box in the cupboard. I gave him one and took the other
myself. He opened his gun and started to remove his snap
caps. I opened my gun and removed two empty cartridges
which I use as snap caps as I don’t have any, I inserted
the cartridge in the right hand barrel, closed the gun, took
off the safety catch and pulled the trigger of the left hand
-5-
barrel, and told him he’d lost. By this time I don’t think
he’d even cleared his barrel of the snap caps. He looked at
me and said: ‘I didn’t think you’d got the guts, but if you
have pull the trigger.’ I didn’t aim the gun. I just pulled
the trigger and he was dead. I then went and called the
police and told the operator I had just murdered my father,
and that’s the story.”
The appellant was in due course charged with murder, and
brought before the St. Neots Magistrates’ Court to be committed
for trial. On 12 February 1982 that court found that there was
no prima facie case of murder and committed the appellant to
stand his trial at the Crown Court on a charge of manslaughter.
The indictment, however, preferred against the appellant, charged
him with murder. A plea of guilty to manslaughter, tendered by
the appellant, was not acceptable to the Crown. The trial took
place before Stephen Brown J. and a jury at the Birmingham
Crown Court. On 17 September 1982, the appellant was convicted
of murder. His appeal against conviction was dismissed by the
Court of Appeal (Criminal Division) (May L.J., Boreham and Nolan
JJ.), on 16 December 1983. The court certified that a point of
law of general public importance was involved in their decision in
the following terms:
“Is malice aforethought in the crime of murder established
by proof that when doing the act which causes the death of
another the accused either:
-
-
-
intends to kill or do serious harm; or
-
foresees that death or serious harm will
probably occur, whether or not he desires either of
those consequences?”
-
-
Your Lordships’ House granted leave to appeal.
Before turning to the substantial issues which the appeal
raises, it is appropriate to refer to a subordinate issue, which was
canvassed at the trial and which, at best, can have done nothing
but confuse the jury and add an unnecessary burden to the judge’s
task in summing up. As already stated, the appellant had offered
a plea of guilty to manslaughter and had at no stage contested his
guilt of that offence. He said in evidence that he had no
recollection of having spoken the words attributed to him by
Constable Dighton, in particular the two sentences: “It was kill or
be killed” and “If I hadn’t, he would have done and he would have
been sitting here instead of me.” The implication of these two
sentences, if they were ever spoken, was wholly inconsistent, not
only with the detailed account of events in the written statement
which the appellant signed and the evidence he gave in support of
that account, but also with the objective evidence that the
deceased was found after the event with his gun broken and
unloaded. Counsel who appeared for the appellant at the trial (not
the counsel who appeared in the Court of Appeal or before your
Lordships) nevertheless invited the jury to acquit the appellant of
any offence, on the ground that he acted in self defence. In the
circumstances the judge, very prudently no doubt, felt it proper to
leave this issue to the jury with appropriate directions, though on
a true analysis it will be apparent that there was not a scintilla
– 6 –
of evidence to discharge the evidential burden on the appellant
necessary to raise any issue of self defence at all. It is difficult
to dispel a lurking anxiety that the argument that he acted in self
defence may have operated on the minds of the jury adversely to
the appellant.
The true and only basis of the appellant’s defence that he
was guilty, not of murder, but of manslaughter, was encapsulated
in the two sentences in his statement: “I didn’t aim the gun. I
just pulled the trigger and he was dead.” The appellant amplified
this defence in two crucial passages in his evidence. He said: “I
never deliberately aimed at him and fired at him intending to hurt
him or to aim close to him intending to frighten him.” A little
later, he said, he had no idea in discharging the gun that it would
injure his father. “In my state of mind I never considered that
the probable consequence of what I might do might result in injury
to my father. I never conceived that what I was doing might
cause injury to anybody. It was just a lark.”
This being the evidence. The issue for the jury was a short
and simple one. If they were sure that, at the moment of pulling
the trigger which discharged the live cartridge, the appellant
realised that the gun was pointing straight at his stepfather’s head,
they were bound to convict him of murder. If, on the other hand,
they thought it might be true that in the appellant’s drunken
condition and in the context of this ridiculous challenge, it never
entered the appellant’s head when he pulled the trigger that the
gun was pointing at his father, he should have been acquitted of
murder and convicted of manslaughter.
The learned judge correctly directed the jury that in order
to prove the appellant guilty of murder, “the prosecution have to
prove that he intended either to kill his stepfather or to cause
him some really serious bodily injury.” But he had earlier given
the following direction on intent:
“When the law requires that something must be proved to
have been done with a particular intent, it means this: a
man intends the consequences of his voluntary act, (a) when
he desires it to happen, whether or not he foresees that it
probably will happen; and (b) when he foresees that it will
probably happen, whether he desires it or not.”
That part of the direction following the colon is given in the
precise terms of the so-called definition of intent set out in
Archbold’s Criminal Pleading Evidence and Practice, 40th ed.,
(1979) para. 1441a, p. 948. The textbook places this definition in
inverted commas although it does not purport to be a quotation
from any judgment or work of authority. The text then continues:
“As will be seen, this definition is in accordance with the great
preponderance of authority.” Finding such a passage in the
standard textbook, which is every judge’s vade mecum when on
circuit, no one can possibly blame the learned judge for relying on
it.
Before considering the criticisms levelled at this direction,
it is necessary to examine two later passages in the summing up
and a supplementary direction given to the jury in answer to a
question which they asked. The learned judge, when he came to
– 7 –
set out the case for the defence, quoted what I have described
above as the two crucial passages in the appellant’s evidence
amplifying the sentence in his statement: “I didn’t aim the gun.”
The learned judge did not relate these passages to his direction on
intent, as many judges, I think, might have done, by saying to the
jury: “Members of the jury, if you believe that may be true, you
should acquit of murder and convict of manslaughter.” Moreover,
only a few sentences further on he quoted an answer given by the
appellant under cross-examination as follows:
“There is no doubt that when I fired that gun it was
pointing at my father’s head at a distance of about six feet,
and at this distance there is no doubt it would cause death.
It is a lethal weapon.”
It is clear that this answer must have been intended to
acknowledge what the appellant recognised to be the fact with
hindsight; it cannot have been intended as an admission of his
state of mind at the time of the shooting. It may be that the
context made this clear to the jury, and I hesitate to criticise
such an experienced learned judge, but the possibility of the jury
misunderstanding the significance of these passages in the
appellant’s evidence imposed, as it seems to me, a special duty on
the judge to give the jury a direction which placed the real issue
before them in unmistakable terms, when, as happened in the
event, the jury returned four hours after their initial retirement
and asked for “clarification of intent.”
Having reminded the jury that the necessary intent was
either to kill or to cause really serious bodily harm, the judge
continued in a passage which it is only fair to quote in full. He
said:
“In deciding the question of the accused man’s intent, you
will decide whether he did intend or foresee that result by
reference to all the evidence, drawing such inferences from
the evidence as appear proper in the circumstances.
Members of the jury, it is a question of fact for you to
decide. As I said I think when I was directing you
originally you cannot take the top of a man’s head off and
look into his mind and actually see what his intent was at
any given moment. You have to decide it by reference to
what he did, what he said and all the circumstances of the
case.
An intent may be an impulsive intent or it may be
premeditated. Nobody has suggested in this case that there
was that element of premeditation. What the prosecution
have said is that when he pulled the trigger of that gun it
must have been pointing at the deceased and that the
accused knew that it was pointing at him, knew it was
loaded, and when he by a deliberate act pulled the trigger
and fired the live barrel of that gun at his stepfather then,
say the Crown, he must have intended at the very least to
have caused him some really serious bodily injury.
The defendant denies that he had that intent, and in
considering the question of his intent it is right that you
should take into account the evidence relating to the drink
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that he had taken. As I have already endeavoured to
explain to you, drink of itself is no defence for any
unlawful action which may be committed, but it is one of
the factors which you should have regard to in considering
whether this accused man did have that necessary intent
when he pulled that trigger. A drunken intent is still an
intent, but you must be satisfied that he did intend either
to kill or to do really serious bodily injury before you can
return a verdict of guilty of murder.”
It will be observed that in this passage foresight of probable
consequences, as an alternative to intent, has become mere
foresight. The Crown’s case of what it was contended the
appellant must have known is recapitulated at some length. The
defence is stated baldly as a denial of intent, without reference to
the appellant’s evidence to the effect that he did not realise the
gun was aiming at his father.
Delivering the judgment of the Court of Appeal in this case,
May L.J. said:
“We respectfully accept Mr. Blom-Cooper’s submission, based
upon the dictum of Lawton L.J. in the case of Reg. v. Beer
(1976), 63 Cr.App.R. 222, that in most cases there is no
need, indeed it is undesirable, to give a jury any definition
of intent or intention in a murder case. It is usually
sufficient to direct them, as indeed did the learned judge
after the passage to which I have already referred, that
intent or intention is a question of fact for them to
determine, taking into account ail the circumstances of the
case.”
May L.J. then quoted the trial judge’s initial direction on intent by
reference to foresight of probable consequences. He continued:
“We think it is quite clear why the learned judge did, in
this particular case, go further than is usual in most cases
of murder. Intent or intention, in common parlance at
least, involves the existence of a state of mind comprising
the decision at least to attempt to achieve the intended
result.”
May L.J. then referred to the approval by Lord Hailsham of St.
Marylebone L.C. in Reg. v. Hyam [1975] AC 55, 74, of the
famous definition of intention given by Asquith L.J. in Cunliffe v.
Goodman [1950] 2 K.B. 237, 253 and added:
“On the facts of the present case, as they appear from the
papers, we are certainly prepared to accept that this
applicant never intended to kill or cause serious bodily
injury to his father, using the word ‘intended’ in that
limited sense. Nevertheless, in the present case there was
also ample material upon which a jury could conclude that
the applicant had deliberately discharged his gun when it
was pointing in the direction of his father and at a distance
of only six feet.”
The dictum of Lawton L.J. in Reg. v. Beer, 63 Cr.App.R. 222, to
which May L.J. refers, now has the endorsement of the Judicial
– 9 –
Committee of the Privy Council in the judgment delivered by Lord
Roskill in Leung Kam-kwok v. The Queen on 19 December 1984.
My Lords, I have to say, with ail respect, that I have
difficulty in following the reasoning in the passage I have cited
from the judgment of May L.J., if he was saying, as he seems to
have been, that this was a case where it was appropriate to direct
the jury that foresight of probable consequences was equivalent to
intent. It seems to me, on the contrary, to have been a prime
example of a case where this was, in the language of Lawton L.J.
in Reg. v. Beer, 63 Cr.App.R. 222, 225 an “irrelevant direction,
which may cause confusion for the jury.” The fact that, when the
appellant fired the gun, the gun was pointing directly at his
stepfather’s head at a range of about six feet was not, and could
not be, disputed. The sole issue was whether, when he pressed the
trigger, this fact and its inevitable consequence were present to
the appellant’s mind. If they were, the inference was inescapable,
using words in their ordinary, everyday meaning, that he intended
to kill his stepfather. The undisputed facts that the appellant
loved his stepfather and that there was no premeditation or
rational motivation, could not, as any reasonable juror would
understand, rebut this inference. If, on the other hand, as the
appellant was in substance asserting, it never crossed his mind, in
his more or less intoxicated condition and when suddenly
confronted by his stepfather’s absurd challenge, that by pulling the
trigger he might injure, let alone kill, his stepfather, no question
of foresight of consequences arose for consideration. Whatever his
state of mind, the appellant was undoubtedly guilty of a high
degree of recklessness. But, so far as I know, no one has yet
suggested that recklessness can furnish the necessary element in
the crime of murder.
If the jury had not demonstrated, by the question they asked
after four hours of deliberation, that the issue of intent was one
they did not understand, there might be room for further argument
as to the outcome of this appeal. As it is, the jury’s question,
the terms of the learned judge’s further direction, and the jury’s
decision, just over an hour later to return a unanimous verdict of
guilty of murder, leave me in no doubt, with every respect to the
trial judge, and the Court of Appeal, that this was an unsafe and
unsatisfactory verdict.
That conclusion would be sufficient to dispose of this
appeal. But since I regard it as of paramount importance to the
due administration of criminal justice that the law should indicate
the appropriate direction to be given as to the mental element in
the crime of murder, or indeed in any crime of specific intent, in
terms which will be both clear to judges and intelligible to juries,
I must first examine the present state of the law on that subject,
and, if I find that it leads to some confusion, I must next consider
whether it is properly within the judicial function of your
Lordships’ House to attempt some clarification and simplification.
I emphasise at the outset that this is in no sense an academic, but
essentially a practical, exercise.
I could not, however hard I tried, hope to emulate the
outstanding erudition with which the speeches in your Lordships’
House in Reg. v. Hyam [1975] AC 55, studied the history and
development of, and the authorities relevant to, the concept of
– 10 –
“malice aforethought,” to use the anachronistic and now wholly
inappropriate phrase which still lingers on in the definition of
murder to denote the necessary mental element. It will be
sufficient for my purposes to consider, as shortly as may be, the
most significant developments in this field within the past thirty
years.
The Homicide Act of 1957, by section 1(1) abolished what
used to be called constructive malice, but not what used to be
called implied malice. It was so held and the implications of the
change in the law were made clear by a particularly strong Court
of Criminal Appeal (Lord Goddard C.J., Hilbery, Byrne, Slade and
Devlin 33.) in Reg. v. Vickers [1957] 2 Q.B. 664. Lord Goddard
C.J., delivering the unanimous judgment of the court, explained
that killing in the course of committing another felony, e.g., theft
or rape, (“constructive malice”) was no longer murder. To
constitute murder what had now to be proved was either an
intention to kill (“express malice”) or an intention to do grievous
bodily harm (“implied malice”). The admirably clear and simple
directions to the jury given by Hinchcliffe J., the trial judge, were
expressly approved as “impeccable.” Those directions several times
indicated that to support a conviction for murder an intention to
kill or do grievous bodily harm must be proved, but contained no
paraphrase or elaboration of what the concept of intention
involved.
The next case I must consider is Director of Public
Prosecutions v. Smith [1961] A.C. 290. The case is important for
three reasons. The first is that the House, reversing the Court of
Criminal Appeal, approved a direction by the trial judge, Donovan
J., in a capital murder case, in the following terms (p. 325):
“The intention with which a man did something can usually
be determined by a jury only by inference from the
surrounding circumstances including the presumption of law
that a man intends the natural and probable consequences of
his acts. If you feel yourselves bound to conclude from the
evidence that the accused’s purpose was to dislodge the
officer, then you ask yourselves this question: Could any
reasonable person fail to appreciate that the likely result
would be at least serious harm to the officer? If you
answer that question by saying that the reasonable person
would certainly appreciate that, then you may infer that
that was the accused’s intention, and that would lead to a
verdict of guilty on the charge of capital murder.”
The effect of this decision was to declare the presumption that a
man intends the natural and probable consequences of his acts to
be irrebuttable, or, put in other language, to require juries, in
deciding whether a person accused of murder had the necessary
intention to kill or cause grievous bodily harm, to apply the
objective test of the reasonable man, not the subjective test of
what was in the mind of the accused man. In this respect the
decision was never popular with the profession. It is said to have
been widely disregarded by trial judges, directing juries in murder
cases, until it was eventually overruled by section 8 of the
Criminal Justice Act 1967, which provides:
– 11 –
“A court or jury, in determining whether a person has
committed an offence, – (a) shall not be bound in law to
infer that he intended or foresaw a result of his actions by
reason only of its being a natural and probable consequence
of those actions; but (b) shall decide whether he did intend
or foresee that result by reference to all the evidence,
drawing such inferences from the evidence as appear proper
in the circumstances.”
The second and third reasons why Director of Public Prosecutions
v. Smith [1961] A.C. 290, is important sufficiently appear by two
short citations from the speech of Viscount Kilmuir L.C., with
which Lords Goddard, Tucker, Denning, and Parker of Waddington,
ail agreed. He said, at p. 327:
“The jury must, of course, in such a case as the present
make up their minds on the evidence whether the accused
was unlawfully and voluntarily doing something to someone.
The unlawful and voluntary act must clearly be aimed at
someone in order to eliminate cases of negligence or of
careless or dangerous driving.”
He said, at p. 334:
“My Lords, I confess that whether one is considering the
crime of murder or the statutory offence [sc. section 18 of
the Offences against the Person Act of 1861], I can find no
warrant for giving the words ‘grievous bodily harm’ a
meaning other than that which the words convey in their
ordinary and natural meaning. ‘Bodily harm’ needs no
explanation, and ‘grievous’ means no more and no less
than ‘really serious.”‘
My Lords, between 1957, when Reg. v. Vickers [1957] 2 Q.B.
661, was decided and the decision of Reg. v. Hyam [1975] AC 55,
in 1974, I do not believe it was ever the practice of trial judges
to equate intent with foresight of probable consequences. To
invite a jury in effect, whatever the precise terms used in
summing up, to apply the rule of evidence, or for that matter of
common sense, that a man may ordinarily be presumed to intend
the natural and probable consequences of his acts, is a different
matter altogether.
So I must turn to consider Reg. v. Hyam and discover, if I
can, just what it decided. Mrs. Hyam was jealous of a Mrs.
Booth. Mrs. Hyam feared that Mr. Jones, her former lover, was
about to marry Mrs. Booth. Mrs. Hyam went to Mrs. Booth’s
house at night (having first assured herself that Mr. Jones would
not be there) where Mrs. Booth and her three children were
sleeping. Taking care to disturb no one, Mrs. Hyam set the house
on fire with petrol. Mrs. Booth and one of her children escaped,
the other two children died in the fire. Mrs. Hyam was tried for
murder before Ackner J. and a jury. She was convicted.
The direction which Ackner J. gave to the jury in written
form on the question of intent was in the following terms:
“The prosecution must prove, beyond all reasonable doubt,
that the accused intended to (kill or) do serious bodily harm
– 12 –
to Mrs. Booth, the mother of the deceased girls. If you are
satisfied that when the accused set fire to the house she
knew that it was highly probable that this would cause
(death or) serious bodily harm, then the prosecution will
have established the necessary intent. It matters not if her
motive was, as she says, to frighten Mrs. Booth.”
The Court of Appeal (Criminal Division) dismissed Mrs. Hyam’s
appeal, but gave her leave to appeal to this House and certified
that the following point of law of general public importance was
involved in their decision:
“Is malice aforethought in the crime of murder established
by proof beyond reasonable doubt that when doing the act
which led to the death of another the accused knew that it
was highly probable that the act would result in death or
serious bodily harm?”
Your Lordships’ House dismissed the appeal by a majority of three
(Lord Hailsham of St. Marylebone L.C., Viscount Dilhorne, and
Lord Cross of Chelsea) to two (Lord Diplock and Lord Kilbrandon.)
Lord Hailsham of St. Marylebone L.C. gave a qualified negative
answer to the certified question expressed in the following
propositions, at p. 79:
“(1) Before an act can be murder it must be ‘aimed at
someone’ as explained in Director of Public Prosecutions v.
Smith [1961] A.C. 290, 327, and must in addition be an act
committed with one of the following intentions, the test of
which is always subjective to the actual defendant:
(i) The intention to cause death;
(ii) The intention to cause grievous bodily harm in
the sense of that term explained in Smith, at p. 335,
i.e., really serious injury;
(iii) Where the defendant knows that there is a
serious risk that death or grievous bodily harm will
ensue from his acts, and commits those acts
deliberately and without lawful excuse, the intention
to expose a potential victim to that risk as the result
of those acts. It does not matter in such
circumstances whether the defendant desires those
consequences to ensue or not, and in none of these
cases does it matter that the act and the intention
were aimed at a potential victim other than the one
who succumbed.
(2) Without an intention of one of these three types the
mere fact that the defendant’s conduct is done in the
knowledge that grievous bodily harm is likely or highly likely
to ensue from his conduct is not by itself enough to convert
a homicide into the crime of murder.”
Viscount Dilhorne said, at p. 80:
“It is to be observed that Ackner J. in his direction to the
jury said that such knowledge [sc. that it was highly
– 13 –
probable that the act would cause death or serious bodily
harm] established the necessary intent. The question
certified asked whether it constituted malice aforethought.
If it did, it does not follow that it established an intent to
do grievous bodily harm.”
He went on to express the opinion that the question certified
should be answered in the affirmative. He added, however, at p.
82:
“I think, too, that if Ackner J. had left the question of
intent in the way in which it is left in the vast majority of
cases, namely, was it proved that the accused had intended
to kill or to do grievous bodily harm, no reasonable jury
could on the facts of this case have come to any other
conclusion than that she had intended to do grievous bodily
harm, bearing in mind her knowledge and the fact that,
before she set fire to the house, she took steps to make
sure that Mr. Jones was not in it as she did not want to
harm him. If the normal direction had been given, much
litigation would have been avoided.”
Lord Diplock, in his dissenting opinion, said this with regard
to the law of intent generally, at p. 86:
“… I agree with those of your Lordships who take the
uncomplicated view that in crimes of this class no
distinction is to be drawn in English law between the state
of mind of one who does an act because he desires it to
produce a particular evil consequence, and the state of mind
of one who does the act knowing full well that it is likely
to produce that consequence although it may not be the
object he was seeking to achieve by doing the act.”
However, he developed an elaborate argument for limiting the
“particular evil consequence” in the definition of murder which an
accused must have intended, in the sense indicated in the passage
cited, to the death of the victim, and consequentially for excluding
from the definition an intention to cause injury, no matter how
serious, which was not likely to cause death. This view would
result in a conveniently simple definition of the mental element in
murder as an intention to cause death or to endanger life. It
would also, of course, involve overruling Reg. v. Vickers [1957] 2
Q.B. 664.
Lord Kilbrandon delivered a short speech agreeing with Lord
Diplock, at p. 98, that:
“to kill with the intention of causing grievous bodily harm is
murder only if grievous bodily harm means some injury
which is likely to cause death: if murder is to be found
proved in the absence of an intention to kill, the jury must
be satisfied from the nature of the act itself or from other
evidence that the accused knew that death was a likely
consequence of the act and was indifferent whether the
consequence followed or not.”
Lord Cross of Chelsea, although voting with the majority,
effectively sat on the fence on the main issue which divided the
– 14 –
rest of their Lordships. Having reviewed their differences he
concluded his speech by saying, at pp. 97-98:
“All that I am certain of is that I am not prepared to
decide between them without having heard the fullest
possible argument on the point from counsel on both sides –
especially as a decision that Reg. v. Vickers [1957] 2 Q.B.
664 was wrongly decided might have serious repercussions
since the direction approved in that case must have been
given in many homicide cases in the last 17 years. For my
part, therefore, I shall content myself with saying that on
the footing that Reg. v. Vickers was rightly decided the
answer to the question put to us should be ‘Yes’ and that
this appeal should be dismissed.”
The Criminal Law Revision Committee in its Fourteenth
Report entitled Offences against the Person (1980) (Cmnd. 7844),
drew attention at pp. 8 et seq. under the heading “The mental
element in murder” to the suggested effect of Reg. v. Hyam
[1975] AC 55, but pointed out three uncertainties which the
decision left unresolved. One of these has been finally settled by
the unanimous decision of this House in Reg. v. Cunningham [1982]
A.C. 566, affirming Reg. v. Vickers [1957] 1 Q.B. 664 and making
clear that the restricted definition of the mental element in
murder favoured in Reg. v. Hyam by Lord Diplock and Lord
Kilbrandon, could now only be adopted by legislative, not by
judicial, action. The other two uncertainties remain.
First, is it a necessary ingredient in the crime of murder
which helps to distinguish it from the crime of manslaughter that
the action of the accused should be “aimed” at someone in the
sense intended by Lord Hailsham of St. Marylebone L.C. in Reg. v.
Hyam [1975] AC 55, relying on a passage in the speech of
Viscount Kilmuir In Director of Public Prosecutions v. Smith [1961]
A.C. 290? If so, what exactly does this involve? Secondly, if
foresight of probable consequences is to be treated either as
equivalent to intent, or as evidence from which intent may (or
must?) be inferred, how is the degree of probability in homicide
cases, where some risk of death or serious injury is foreseen, to
be defined in a way that will distinguish murder from
manslaughter.
Before attempting to grasp these nettles, I would make
some general observations. The definition of intent on which
Stephen Brown J. based his initial direction to the jury in this
case and which first appeared in the 40th edition, but now appears
virtually unchanged in the 41st edition of Archbold’s
Criminal Pleading Evidence and Practice published in 1982, is, as
previously stated, clothed with the spurious authority of quotation
marks. I will repeat it here for clarity (para. 17-13, p. 995):
“In law a man intends the consequence of his voluntary act,
-
-
-
when he desires it to happen, whether or not
he foresees that it probably will happen, or -
when he foresees that it will probably happen,
whether he desires it or not.”
-
-
– 15 –
Although in its terms applicable to any offence of specific intent,
this so-called definition must be primarily derived from Reg. v.
Hyam [1975] AC 55. The text embodies a reference to Viscount
Dilhorne’s opinion, implicit in the passage cited above from p. 82
of the report, that in Reg. v. Hyam itself, as in the vast majority
of cases, an explanation of intent was unnecessary and notes the
endorsement of this view to which I have already referred in Reg.
v. Beer 63 Cr.App.R. 222. Apart from copious references to Reg.
v. Hyam, the ensuing citation in support of the claim that the
definition “is in accordance with the great preponderance of
authority,” refers to many decided cases in which there are to be
found obiter dicta on the subject. But looking on their facts at
the decided cases where a crime of specific intent was under
consideration, including Reg. v. Hyam [1975] AC 55 itself, they
suggest to me that the probability of the consequence taken to
have been foreseen must be little short of overwhelming before it
will suffice to establish the necessary intent. Thus, I regard the
Archbold definition of intent as unsatisfactory and potentially
misleading and one which should no longer be used in directing
juries.
The golden rule should be that, when directing a jury on the
mental element necessary in a crime of specific intent, the judge
should avoid any elaboration or paraphrase of what is meant by
intent, and leave it to the jury’s good sense to decide whether the
accused acted with the necessary intent, unless the judge is
convinced that, on the facts and having regard to the way the
case has been presented to the jury in evidence and argument,
some further explanation or elaboration is strictly necessary to
avoid misunderstanding. In trials for murder or wounding with
intent, I find it very difficult to visualise a case where any such
explanation or elaboration could be required, if the offence
consisted of a direct attack on the victim with a weapon, except
possibly the case where the accused shot at A and killed B, which
any first year law student could explain to a jury in the simplest
of terms. Even where the death results indirectly from the act of
the accused, I believe the cases that will call for a direction by
reference to foresight of consequences will be of extremely rare
occurrence. I am in full agreement with the view expressed by
Viscount Dilhorne that, in Reg. v. Hyam [1975] AC 55 itself, if
the issue of intent had been left without elaboration, no reasonable
jury could have failed to convict. I find it difficult to understand
why the prosecution did not seek to support the conviction, as an
alternative to their main submission, on the ground that there had
been no actual miscarriage of justice.
I do not, of course, by what I have said in the foregoing
paragraph, mean to question the necessity, which frequently arises,
to explain to a jury that intention is something quite distinct from
motive or desire. But this can normally be quite simply explained
by reference to the case before the court or, if necessary, by
some homely example. A man who, at London airport, boards a
plane which he knows to be bound for Manchester, clearly intends
to travel to Manchester, even though Manchester is the last place
he wants to be and his motive for boarding the plane is simply to
escape pursuit. The possibility that the plane may have engine
trouble and be diverted to Luton does not affect the matter. By
boarding the Manchester plane, the man conclusively demonstrates
his intention to go there, because it is a moral certainty that that
is where he will arrive.
-16 –
I return to the two uncertainties noted by the Criminal Law
Revision Committee in the Report referred to above as arising
from Reg. v. Hyam [1975] AC 55, which still remain unresolved.
I should preface these observations by expressing my view that the
differences of opinion to be found in the five speeches in Reg. v.
Hyam have, as I believe, caused some confusion in the law in an
area where, as I have already indicated, clarity and simplicity are,
in my view, of paramount importance. I believe it also follows
that it is within the judicial function of your Lordships’ House to
lay down new guidelines which will achieve those desiderata, if we
can reach broad agreement as to what they should be.
In one sense I should be happy to adopt in its entirety the
qualified negative answer proposed by my noble and learned friend
on the Woolsack to the certified question in Reg. v. Hyam [1975]
A.C. 55, 79, because, if I may say so, it seems to me to be
supported by the most convincing jurisprudential and philosophical
arguments to be found in any of the speeches in Reg. v. Hyam.
But I have to add at once that there are two reasons why I
cannot regard it as providing practical guidance to judges who
have to direct juries in the rare cases where foresight of probable
consequences must be canvassed with the jury as an element which
should affect their conclusion on the issue of intent.
First, I cannot accept that the suggested criterion that the
act of the accused, to amount to murder, must be “aimed at
someone” as explained in Director of Public Prosecutions v. Smith
[1961] A.C. 290 by Viscount Kilmuir, at p. 327, is one which would
be generally helpful to juries. The accused man in Director of
Public Prosecutions v. Smith was driving a car containing stolen
goods. When told to stop by a police constable he accelerated
away. The constable clung to the side of his car and the accused,
in busy traffic, pursued an erratic course in order to shake the
constable off. When finally shaken off, the constable fell in front
of another car and was killed. In this context it was, no doubt,
entirely apposite to say, as Viscount Kilmuir did: “The unlawful
and voluntary act must clearly be aimed at someone in order to
eliminate cases of negligence or of careless or dangerous driving.”
But what of the terrorist who plants a time bomb in a public
building and gives timely warning to enable the public to be
evacuated? Assume that he knows that, following evacuation, it is
virtually certain that a bomb disposal squad will attempt to defuse
the bomb. In the event the bomb explodes and kills a bomb
disposal expert. In our present troubled times, this is an all too
tragically realistic illustration. Can it, however, be said that in
this case the bomb was “aimed” at the bomb disposal expert?
With all respect, I believe this criterion would create more doubts
than it would resolve.
Secondly, I believe that my noble and learned friend, Lord
Hailsham’s inclusion in the mental element necessary to a
conviction of murder of “the intention to expose a potential
victim,” inter alia, to “a serious risk that . . . grievous bodily
harm will ensue from his acts” ([1975] AC 55, 79) comes
dangerously near to causing confusion with at least one possible
element in the crime of causing death by reckless driving, and by
inference equally of motor manslaughter, as identified by Lord
Diplock in the later case of Reg. v. Lawrence [1982] A.C. 510,
– 17 –
526, 527, where the driving was such “as to create an obvious and
serious risk of causing physical injury to some other person” and
the driver “having recognised that there was some risk involved,
had nonetheless gone on to take it.” If the driver, overtaking in a
narrow country lane in the face of an oncoming cyclist, recognises
and takes not only “some risk” but a serious risk of hitting the
cyclist, is he to be held guilty of murder?
Starting from the proposition established by Reg. v. Vickers
[1957] 2 Q.B. 664, as modified by Director of Public Prosecutions
v. Smith [1961] A.C. 290 that the mental element in murder
requires proof of an intention to kill or cause really serious injury,
the first fundamental question to be answered is whether there is
any rule of substantive law that foresight by the accused of one
of those eventualities as a probable consequence of his voluntary
act, where the probability can be defined as exceeding a certain
degree, is equivalent or alternative to the necessary intention. I
would answer this question in the negative. Here I derive
powerful support from the speech of my noble and learned friend,
Lord Hailsham, in Reg. v. Hyam [1975] AC 55. He said, at p.
75: “I do not, therefore, consider, as was suggested in argument,
that the fact that a state of affairs is correctly foreseen as a
highly probable consequence of what is done is the same thing as
the fact that the state of affairs is intended.” And again, at p.
77: “I do not think that foresight as such of a high degree of
probability is at all the same thing as intention, and, in my view,
it is not foresight but intention which constitutes the mental
element in murder.” The irrationality of any such rule of
substantive law stems from the fact that it is impossible to define
degrees of probability, in any of the infinite variety of situations
arising in human affairs, in precise or scientific terms. As Lord
Reid said in Southern Portland Cement Ltd. v. Cooper [1974] A.C.
623, 640:
“Chance probability or likelihood is always a matter of
degree. It is rarely capable of precise assessment. Many
different expressions are in common use. It can be said
that the occurrence of a future event is very likely, rather
likely, more probable than not, not unlikely, quite likely, not
improbable, more than a mere possibility, etc. It is neither
practicable nor reasonable to draw a line at extreme
probability.”
I am firmly of opinion that foresight of consequences, as an
element bearing on the issue of intention in murder, or indeed any
other crime of specific intent, belongs, not to the substantive law,
but to the law of evidence. Here again I am happy to find myself
aligned with my noble and learned friend, Lord Hailsham, in Reg.
v. Hyam [1975] AC 55, where he said, at p. 65: “Knowledge or
foresight is at the best material which entitles or compels a jury
to draw the necessary inference as to intention.” A rule of
evidence which judges for more than a century found of the
utmost utility in directing juries was expressed in the maxim: “A
man is presumed to intend the natural and probable consequences
of his acts.” In Director of Public Prosecutions v. Smith [1961]
A.C. 290 your Lordships’ House, by treating this rule of evidence
as creating an irrebuttable presumption and thus elevating it, in
effect, to the status of a rule of substantive law, predictably
provoked the intervention of Parliament by section 8 of the
– 18 –
Criminal Justice Act of 1967 to put the issue of intention back
where it belonged, viz., in the hands of the jury, “drawing such
inferences from the evidence as appear proper in the
circumstances.” I do not by any means take the conjunction of
the verbs “intended or foresaw” and “intend or foresee” in that
section as an indication that Parliament treated them as
synonymous; on the contrary, two verbs were needed to connote
two different states of mind.
I think we should now no longer speak of presumptions in
this context but rather of inferences. In the old presumption that
a man intends the natural and probable consequences of his acts
the important word is “natural.” This word conveys the idea that
in the ordinary course of events a certain act will lead to a
certain consequence unless something unexpected supervenes to
prevent it. One might almost say that, if a consequence is
natural, it is really otiose to speak of it as also being probable.
Section 8 of the Criminal Justice Act 1967 leaves us at
liberty to go back to the decisions before that of this House in
Director of Public Prosecutions v. Smith [1961] A.C. 290 and it is
here, I believe, that we can find a sure, clear, intelligible and
simple guide to the kind of direction that should be given to a
jury in the exceptional case where it is necessary to give guidance
as to how, on the evidence, they should approach the issue of
intent.
I know of no clearer exposition of the law than that in the
judgment of the Court of Criminal Appeal (Lord Goddard C.J.,
Atkinson and Cassels JJ.) delivered by Lord Goddard C.J. in Rex,
v. Steane [1947] K.B. 997 where he said, at p. 1004:
“No doubt, if the prosecution prove an act the natural
consequence of which would be a certain result and no
evidence or explanation is given, then a jury may, on a
proper direction, find that the prisoner is guilty of doing the
act with the intent alleged, but if on the totality of the
evidence there is room for more than one view as to the
intent of the prisoner, the jury should be directed that it is
for the prosecution to prove the intent to the jury’s
satisfaction, and if, on a review of the whole evidence, they
either think that the intent did not exist or they are left in
doubt as to the intent, the prisoner is entitled to be
acquitted.”
In the rare cases in which it is necessary to direct a jury
by reference to foresight of consequences, I do not believe it is
necessary for the judge to do more than invite the jury to
consider two questions. First, was death or really serious injury in
a murder case (or whatever relevant consequence must be proved
to have been intended in any other case) a natural consequence of
the defendant’s voluntary act? Secondly, did the defendant foresee
that consequence as being a natural consequence of his act? The
jury should then be told that if they answer yes to both questions
it is a proper inference for them to draw that he intended that
consequence.
My Lords, I would answer the certified question in the
negative. I would allow the appeal, set aside the verdict of
– 19 –
murder, substitute a verdict of manslaughter and remit the case to
the Court of Appeal (Criminal Division) to determine the
appropriate sentence. Having regard to the time the appellant has
already spent in custody, the case should be listed for hearing at
the earliest possible date.
– 20 –
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