R v Cunningham [1981] UKHL 5

House of Lords

Between

RAppellant

CunninghamRespondent

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the certified question be answered in the Affirmative and that the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 4th day of December 1980 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Lord Hailsham of St. Marylebone Lord Wilberforce Lord Simon of Glaisdale Lord Edmund-Davies Lord Bridge of Harwich

HOUSE OF LORDS

REGINA (RESPONDENT)

CUNNINGHAM (APPELLANT)

Lord Hailsham of St. Marylebone

My Lords,

On the 14th February 1980 the appellant was arraigned on an indictment accusing him of the murder of a Persian national, named Korosh Amine Natghie (known as " Kim ") on the 8th October 1979. There was a second count of unlawful wounding with which we are not concerned. To the charge of murder the appellant pleaded that he was indeed guilty of the man- slaughter of " Kim ", but that he was not guilty of his murder. He was tried before Lawson J. and a Kent jury and on the 18th February 1980 he was duly convicted of murder. His appeal against conviction was dismissed by the Court of Appeal (Criminal Division) consisting of Lord Lane C.J. and Boreham and Ewbank JJ. on 4th December 1980. They refused leave to appeal to the House of Lords, but certified that the following point of law of general public importance was involved in the appeal, viz.,

" Whether a person is guilty of murder by reason of his unlawfully " killing another intending to do grievous bodily harm."

On the 19th March 1981 the appellant was given leave to appeal by an Appeal Committee of your Lordships' House. In these circumstances the appeal comes before your Lordships for decision.

Broadly speaking the facts are not in dispute. The victim died on the 8th October 1979 when, in view of the fact that he was virtually already dead, the breathing machine on which he had been placed on the 5th October was finally switched off. Kim's death was due to a fracture of the base of the skull and a subdural haemorrhage as the result of an incident on the 30th September 1979 at the Albion Public House, Margate. These injuries were caused by blows received from the appellant, which included repeated blows from a chair or part of a chair, some of which were inflicted while Kim lay defenceless upon the ground. The attack by the appellant on Kim was unprovoked, but motivated by jealousy. The appellant suspected Kim, wrongly it seems, of associating sexually with the appellant's former mistress whom the appellant planned to marry.

At no time did the appellant deny the attack or that the attack was the cause of death. The point decided by the Court of Appeal in R. v. Malcherek, R. v. Steel [1981] 2 All E.R. 422, was neither taken nor argued. From the start, however, he asserted that he had not intended to kill the deceased. There was, however, ample evidence from which the jury could infer, as they evidently did, that he did intend to inflict grievous bodily harm, whether or not this is defined as " really serious injury ".

Constrained by previous authorities, Lawson J. directed the jury that the sole question for them was:

" As a matter of law, the question of fact on which your verdict " depends is solely this . . . ' At the time when the defendant inflicted " ' the injuries on Kim . . . did he intend to do him really serious " ' harm? ' If the answer to that question is ' yes ', you find him guilty " of murder. If the answer to the question is ' no', then you find him " not guilty of murder, but guilty of manslaughter."

There were further directions to the same effect later in the summing up, and on a subsequent request by the jury for further instruction on the difference

between murder and manslaughter, but they do not alter the point at issue. This direction was rightly characterised by the Lord Chief Justice in the course of delivering the judgment of the Court of Appeal as " by reason of " a number of decisions . . . binding on this court . . . correct and " impeccable ". The sole question, therefore, for your Lordships' House is whether these decisions, binding on both courts below, were correctly or wrongly decided. The assumption which must be made for the purpose of determining the appeal is that the appellant in inflicting the fatal injuries on the deceased did intend to inflict really serious injury, but did not intend to kill him. In the circumstances of the judge's direction, there can be no question of applying the proviso.

Murder has been traditionally defined as unlawful killing with malice aforethought. It was this element of malice aforethought which rendered the offence unclergiable after the reign of Henry VIII (see my speech in Hyam v. D.P.P.

[1975] AC 55

at page 66). It is, of course, common ground that malice aforethought at least includes an intention to kill. The question is how nearly to this intention malice must be confined to constitute the offence of murder. The Homicide Act 1957 abolished the species of malice known as " constructive " but it has hitherto been accepted doctrine that the Homicide Act did not abolish the doctrine, in my view rather unfortunately, known as " implied malice ": see section 1 (c) of the Act, R. v. Vickers [1957] 2 Q.B. 664 at 671, 672 and Hyam (supra). I call the label unfortunate because the " malice " in an intention to cause grievous bodily harm is surely express enough. The question is whether the fact that it falls short of an intention to kill and may fall short of an intent to endanger life is enough to exclude an unlawful killing resulting from an act inspired by this intention from the ambit of the crime of murder. The intermediate doctrine which adds on an intention to endanger life to the positive intention to kill as sufficient mens rea to complete the offence need not be considered until I consider Lord Diplock's dissenting speech in Hyam. At the other end of the spectrum, it is established that, since section 8 of the Criminal Justice Act 1967, the test whether malice is express or implied is subjective (see Hyam, supra). The definition of grievous bodily harm means " really "serious bodily harm" in current English usage (D.P.P. v. Smith [1961] A.C. 290, R. v. Metharam [1961] 3 All E.R. 200, Hyam v. D.P.P., supra, at p.68), all disapproving R. v. Ashman (1 F. & F. 88).

Counsel for the appellant understandably founded his case upon the powerful dissenting opinion of Lord Diplock in Hyam, concurred in by Lord Kilbrandon, and asked, if necessary, your Lordships to avail themselves of the Practice Direction in [1966] 1 W.L.R. 1234 to give effect to it. I say " if necessary ", because counsel properly drew our attention to the some- what Delphic italicised phrase employed by Lord Cross of Chelsea at p.98 of the report in adding his weight to the opinions of what became the majority in an otherwise equally divided House. In order to dispose first of this minor point I do not believe that your Lordships could give effect to the submission of counsel that R. v. Vickers was wrongly decided without invoking the Practice Direction. However apparently ambiguous the italicised phrase, there is no doubt on which side Lord Cross's vote was cast, and. even if there were any doubt about this, Vickers was effectively endorsed by your Lordships' House in D.P.P. v. Smith, supra, which for this purpose has not been overtaken by the Criminal Justice Act 1967. In order to deter- mine the appeal in favour of the appellant and to give effect to Lord Diplock's opinion it would be necessary, in my view, not merely to override Vickers, but to disregard the endorsement of it in Smith and Hyam notwithstanding that the exact point in Hyam was concerned with the proposition formulated in Stephen's Digest (9th edition, Art 264(b) whilst the present case is concerned with the part of the proposition in Art 264(a)). (As to these, see the quotation which follows.)

Before I embark on an analysis of Lord Diplock's argument, on your Lordships' attitude to which, substantially, I regard the appellant’s case to stand or fall, there are one or two preliminary observations as to the history

of the crime of homicide and the language employed in defining them on which I would desire to comment. As I pointed out at p.66 of the report in Hyam, the expression "malice aforethought", in whatever tongue expressed, is unfortunate since neither the word " malice" nor " afore- " thought" is construed in its ordinary sense. In construing the word " aforethought" an intention to kill or, if Lord Diplock's dissenting opinion be followed, to endanger life, however lacking in premeditation, is admittedly enough to constitute the mens rea in murder in the absence of the avail- ability of such mitigating factors as self defence, provocation, insanity, or diminished responsibility, notwithstanding that, five minutes before his act, the killer may have been innocent of any such intention. As regards " malice ", the necessary intention for the purposes of the present appeal is either an intention to kill or endanger life (as Lord Diplock's speech in Hyam would have had it) or the intention to kill or cause really serious harm (or the addition to it decided in Hyam) as the five-judge Court of Appeal and your Lordships' House have decided it to be in Vickers, Smith and Hyam respectively. Each state of mind is something which may exist without the assailant being consciously activated by " malice " in the popular sense of the word.

Stephen's Digest (Art 264) defined " malice aforethought" as follows:

•

" Murder is homicide not excused or justified by the exceptions laid " down in Chapter XXX, and with malice aforethought as hereinafter " defined.

" Malice aforethought means any one or more of the following states " of mind preceding or co-existing with the act or omission by which "death is caused, and it may exist where that act is unpremeditated: —

" (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; " [This is the state of mind affirmed in Vickers ].

" (b) 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;" [This is approximately the state of mind affirmed in Hyam ] .

" (c) an intent to commit any felony whatever; (or, submitted, an " intent to commit any felony of such a kind that the actual " commission thereof would involve the use or at least the threat " of force against the person killed.) " [This state of mind was excluded by the Homicide Act, 1957].

" (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 peace or dispersing an unlawful assembly, " provided that the offender has notice that the person killed is " such an officer so employed." [This state of mind too was excluded by the Homicide Act 1957].

This definition was the result of a long and careful research into the earlier cases and authors, beginning with Coke and ending with East, as set out at length in Stephen's original note XIV (now note VIII in Mr. Sturge's edition). It represents the author's view of what the law of murder was independently of the doctrine of " constructive malice " contained in sub- paragraphs (c) and (d) of the definition now effectively abolished by the Homicide Act 1957.

By the time Vickers was decided, the terminology of the law thus recog- nised three classes of malice aforethought as sufficient to constitute the crime of murder, viz. " express ", " implied " and " constructive " malice,

the last mentioned, as I have said, having been abolished by the Homicide Act 1957, but corresponding to sub-paragraphs (c) and (d) of Stephen's classification. These last are sometimes labelled "felony murder", and " arrest murder ". For myself, as I have observed before (see Hyam at p.67), I find the terminology inconvenient. I can understand well enough how a contract can be express (when expressed in words oral or written) or implied (e.g. when to be inferred from conduct, from a course of dealing or by necessary implication). I find much greater difficulty in applying this dis- tinction to a state of mind. Since a mental state must necessarily be subjective, there is an argument for saying that all states of mind must be express. Since a mental state can only be inferred, whether from the deeds or words of the subject, or, as Lord Diplock points out (Hyam p.90) from his own subsequent account of the matter on oath in the witness box, there is an equally strong case for saying that all states of mind must be implied. Nevertheless, though I personally find the terminology misleading and inappropriate, it was expressly recognised by the draftsman of the Homicide Act 1957 (section 1(1)) as being current law at the time, and by the reinforced Court of Appeal in Vickers. Despite the summing up of Hinchcliffe J. quoted at p.672 of the report in Vickers, and the fact (of which I am fairly certain) that the phrase " implied malice " has not been used consistently at all, (Stephen in his History of the Criminal Law uses it at least once in the sense of " constructive malice"), I was at one time tempted to the view that " express malice " was originally used to refer to Stephen's sub-paragraph (a) (the Vickers point) and " implied malice " to Stephen's sub-paragraph (b) (the Hyam point). However in deference to the authority of Vickers where the phrase is not used in this sense either by the Court of Appeal or by Hinchcliffe J., I do not now think it safe to express this opinion, attractive as I still find it. Whatever the truth of the matter, the language of decided cases and of section 1(1) of the Homicide Act 1957 compels one to accept the nomenclature as established legal usage, and to assume a tripartite division between express and implied malice, on the one hand, and con- structive malice on the other.

This brings me to Lord Diplock's dissenting opinion which is really central to the appellant's case. Like myself, he is offended by the express/ implied terminology, which is, however, inescapable in discussing the previous learning. For this terminology Lord Diplock substitutes the far more convenient " actual malice" and " constructive malice". I do not myself consider that this innovation, by itself an improvement, necessarily affects the validity, or otherwise, of his argument, though it does enable him to skate over the difficulty created by the express retention by the draftsman of the " implied " category in section 1(1) of the Act of 1957.

The real nerve of Lord Diplock's argument, however, does, as it seems to me, depend on the importance to be attached to the passing in 1803 of Lord Ellenborough's Act (43 Geo. 3 c.58) by which, for the first time, wounding with the intent to inflict grievous bodily harm became a felony. This, Lord Diplock believes, rendered it possible to apply the doctrine of " felony "murder" as defined in Stephen's category (c), abolished in 1957, to all cases of felonious wounding, where death actually ensued from the wound. The abolition of "felony murder" in 1957 was thus seen to enable the judiciary to pursue the mental element in murder behind the curtain imposed upon it by the combined effect of the statutory crime of felonious wounding and the doctrine of constructive malice, and so to arrive at a position in which the mental element could be redefined in terms either of an intention to kill, or an intention actually to endanger human life, to correspond with the recommendations of the Royal Commission of 1839.

It seems to me, however, that this highly ingenious argument meets with two insuperable difficulties. I accept that it appears to be established that the actual phrase "grievous bodily harm", if not an actual coinage by Lord Ellenborough's Act, can never be found to have appeared in print before it, though it has subsequently become current coin, and has passed into the general legal jargon of statute law, and the cases

decided thereon. But counsel, having diligently carried us through the institutional writers on homicide, starting with Coke, and ending with East, with several citations from the meagre reports available, only succeeded in persuading me at least that, even prior to Lord Ellenborough's Act of 1803, and without the precise label " grievous bodily harm ", the authors and the courts had consistently treated as murder, and therefore unclergiable, any killing with intent to do serious harm, however described, to which the label " grievous bodily harm ", as defined by Lord Kilmuir at p.334 of the report of D.P.P. v. Smith, reversing the " murder by pinprick " doctrine arising from R. v. Ashman (1858) 1 F. & F. 88, could properly have been applied. It would be tedious to pursue the citations all in detail. We were referred successively to Co. Inst. 3, 47-52, Hale P.C. c.33 424-477, Hawkins P.C.I pp.85-88, Blackstone Com. iv. 191-201, Foster com. 255-267, and East 1 103, 214-233. But the further we went into these passages, the more hopeless appeared to be the view that, irrespective of constructive malice, malice aforethought had ever been limited to the intention to kill or endanger life. On the contrary, these authorities reinforced the conclusion arrived at by Stephen's original note XIV (in the Sturge edition note VIII). This is the more striking in that the last few lines of the note demonstrate clearly that the possible combined effect of the felony murder rule and the existence of a statutory crime of felonious wounding was consciously present to the author's mind.

There is a second difficulty in the way of treating Lord Ellenborough's Act as providing the kind of historical watershed demanded by Lord Dip- lock's speech and contended for in the instant appeal by appellant's counsel. This consists in the fact that, though the 19th century judges might in theory have employed the felony murder rule to apply to cases where death ensued in the course of a felonious wounding, they do not appear to have done so in fact. No case was cited where they did so. On the contrary, there appears to be no historical discontinuity between criminal jurisprudence before and after 1803. Stephen never so treated the matter (either in his text, or, except in the last few lines, in his note XIV). It was not so treated in the Australian case of La Fontaine v. R. (1976) 136 C.L.R. 62 (after Hyam, but in a juris- diction in which the constructive malice rule still applied). It was pointed out by counsel for the Crown that the relevant felony created by Lord Ellenborough's Act was limited to cutting or stabbing and did not extend e.g. to beating, which would effectively have excluded the felony murder doctrine from many cases where death ensued from an act intended to inflict grievous bodily harm. For myself, I think that there is a logical difficulty not based on this narrow point of construction, which prevented the judges from adopting the principle. Felonious wounding intrinsically involves proof by the prosecution of the requisite intention and therefore gives no added force to the earlier law, if I have correctly interpreted the learning before 1803. The way is thus clear on any view to accept as decisive what I myself had always understood to be the law prior to 1957. This is contained in the statement of Lord Goddard C.J. representing the court of five judges as reported in Vickers at p.670 of the report:

" Murder is, of course, killing with malice aforethought, but ' malice " ' aforethought' is a term of art. It has always been defined in English " law as either an express intention to kill, as could be inferred when " a person, having uttered threats against another, produced a lethal " weapon and used it on a victim, or implied where, by a voluntary act, " the accused intended to cause grievous bodily harm to the victim, " and the victim died as the result."

I should, however, make at least a passing reference to the valid observa- tion made by Lord Diplock at p.91 of the report of Hyam where he points out that, at one point in his History, Stephen appears to treat his draft code (which clearly would have supported Lord Diplock's formulation) as " exactly " corresponding " with his formulation in the Digest (which it clearly does not). As to this, I can only say, on this point, Stephen was surely in error. The two documents do not " exactly correspond ".

Counsel for the appellant used one further ground, not found in Lord Diplock's opinion, for supporting the minority view in Hyam, This was the difficulty which, as he suggested, a jury would find in deciding what amounted to an intention to inflict " grievous bodily harm " or " really " serious bodily harm " as formulated in Smith. I do not find this argument convincing. For much more than 100 years juries have constantly been required to arrive at the answer to precisely this question in cases falling short of murder, (e.g., the section 18 cases). I cannot see that the fact that death ensues should render the identical question particularly anomalous, or its answer, though admittedly more important, any more difficult. Nor am I persuaded that a reformulation of murder so as to confine the mens rea to an intention to endanger life instead of an intention to do really serious bodily harm would either improve the clarity of the law or facilitate the task of juries in finding the facts. On the contrary, in cases where death has ensued as the result of the infliction of really serious injuries I can see endless opportunity for fruitless and interminable discussion of the question whether the accused intended to endanger life and thus expose the victim to a probable danger of death, or whether he simply intended to inflict really serious injury.

I must add one or two words about the arguments presented in the view of the minority on p.90 of the report of Hyam. I readily accede to the view that the task of the modern judge in applying the criminal law is rendered more difficult by the paucity of reliable reports of criminal cases prior to the establishment of a proper pyramid of criminal appeals. I also accept the relevance of the fact that prior to Woolmington v. D.P.P. [1935] A.C. 462, the burden of proof was erroneously supposed to be on the defence in a number of cases where a voluntary act resulting in death had been proved by the prosecution, and that prior to 1898 criminal courts had never the advantage of the testimony of the accused. I also genuflect before the miracles of modern surgery and medicine, though I express some doubt whether these may not have been offset to some extent by the increased lethal characteristics of modern weaponry (particularly in the fields of automatic weaponry, explosives and poisons), and the assistance to criminality afforded by the automobile, the motorway and international air transport. I also take leave to doubt whether in the case of injuries to the skull in particular or indeed really serious bodily harm in general these advances have made the difference between inflicting serious bodily harm and endangering life sufficiently striking as to justify judicial legislation on the scale proposed. But, more important than all this, I confess that I view with a certain degree of scepticism the opinion expressed on pp.90-93 of the Hyam report that the age of our ancestors was so much more violent than our own that we can afford to take a different view of "concepts of what is right " and what is wrong that command general acceptance in contemporary " society ". In the weeks preceding that in which this appeal came before your Lordships both the Pope and the President of the United States have been shot in cold blood, a circuit judge has been slain, a police officer has given evidence of a deliberate shooting of himself which has confined him to a wheeled chair for life, five soldiers have been blown up on a country road by a mine containing over a thousand pounds of high explosive, the pillion passenger has been torn from the back of a motor bicycle and stabbed to death by total strangers apparently because he was white, and another youth stabbed, perhaps because he was black, petrol bombs and anti- personnel weapons have been thrown in the streets of London and Belfast at the bodies of the security forces, cars have been overturned and set on fire in Brixton and Bristol, and the Press has carried reports that our own Sovereign moves about the streets of her own country protected by body- guards armed with automatic weapons. If I moved a few months back I could cite the siege of the Iranian embassy and other terrorist sieges where hostages have been taken by armed men, the shooting in the streets of London of foreign refugees at the hand of their political opponents, and many other acts of lawlessness, violence and cruelty. I doubt whether what seemed clear in 1974, when the Hyam appeal was heard, would have seemed so obvious seven years later in 1981. Like "public policy", "concepts of

" what is right and what is wrong that command general acceptance in " contemporary society" are difficult horses for the judiciary to ride, and. where possible, are arguably best left to the legislature to decide. It must be added that the legislature has been relatively slow to act Commis- sion after Commission, Committee after Committee have reported both before and after Sir James Stephen's draft Bill was stillborn after examination by a Victorian Select Committee of the House of Commons in 1874. Few of the recommendations of these successive enquiries have exactly coincided with one another, and fewer still have reached the statute book. One cannot but feel sympathy with Lord Kilbrandon's plea (Hyam at p.98) for a single, and simplified, law of homicide especially since the death penalty for murder has been abolished. But I venture to think that the problem involves difficul- ties more serious than is supposed. Few civilised countries have identical laws on the subject of homicide or apply them in the same way. To name only two broad issues of policy, are we to follow section 5 of the Homicide Act 1957 and categorise certain classes of murder in which the prohibited act is arbitrarily adjudged to be worse than in others? The fate of section 5 after the abolition of the death penalty, and its history before that, do not encourage emulation. Or, are we to follow Lord Kilbrandon's inclination and create a single offence of homicide and recognise that homicides are infinitely variable in heinousness, and that their heinousness depends very largely on their motivation, with the result that the judge should have absolute discretion to impose whatever sentence he considers just from a conditional discharge to life imprisonment? I can see both difficulty and danger in this for the judiciary. After conviction of the new offence of homicide, judges would have to be the judges of fact for themselves, unaided by any precise jury verdict as to the exact facts found or any guidance from the legislature as to the appropriate penalty. I doubt whether in practice they would relish the responsibility with greater enthusiasm than that with which Parliament would be eager to entrust them with it.

In the meantime we must administer the law as we consider it to be without either the zeal of the reformer or the unwillingness to admit error which characterises the reactionary. In my opinion, Vickers was a correct statement of the law as it was after amendment by the Homicide Act 1957, and in Smith and Hyam your Lordships were right to endorse Vickers.

Having reached this conclusion, I doubt whether I possess moral or intellectual agility to discern exactly what I would have done with regard to the Practice Direction had I reached an opposite view. But I am impressed by the stance Lord Reid took in Knuller Ltd. v. D.P.P. [1913] A.C. 435 at 455, where he refused to invoke the Practice Direction in support of his own previous dissent in Shaw v. D.P.P. and I am impressed by the arguments of Lord Morris of Borth-y-Gest and Lord Simon of Glaisdale in the same case in favour of caution. Nor can I disregard the fact that had I reached a different conclusion I should have been saying that between 1957 and the abolition of capital punishment for murder, a number of persons (including Vickers himself) would have been executed when they ought only to have been convicted at common law of manslaughter had the trial judge anticipated my putative decision. Under the express terms of the Practice Direction stare decisis is still the indispensable foundation of the use by your Lordships of the appellate jurisdiction of the House and its normal practice. Especially must this be so in criminal law, where certainty is indeed a con- dition of its commanding and retaining respect.

In the event, I am spared these conscientious difficulties, and, without refusing to invoke the Practice Direction, I am able to say with sincerity that, on the law as it is, and on its merits, the appeal should be dismissed.

Lord Wilberforce

My Lords,

I have had the privilege of reading in advance the speech delivered by the Lord Chancellor. I agree entirely with it.

I wish to add to what the noble and learned Lord has said my firm recognition of the value of his opinion with reference to the issue now relevant, in the case of Hyam v. D.P.P.

[1975] AC 55

. Taken together with R. v. Vickers [1975] 2 Q.B. 664 and the endorsement of that case by this House in D.P.P. v. Smith [1961] A.C. 290, with the history of the develop- ment of the law relating to murder over nearly four hundred years, and with the authority of Stephen, this makes the case for the minority opinions in Hyam, as statements de lege lata, with respect, unarguable at the present time. And, furthermore, if it were possible for this House, judicially, to change the existing law (so as to require an intention to endanger life rather than an intention to do " grievous bodily harm "), whatever defects the present law may possess, that particular change would in my opinion be for the worse, not for the better, in providing a test both uncertain and prac- tically unworkable. I am happy to see that the Lord Chancellor agrees in this.

I would dismiss the appeal and answer the certified question in the affirmative.

Lord Simon of Glaisdale

My Lords,

I have had the privilege of reading in draft the speech delivered by my noble and learned friend on the Woolsack. I agree with it; and I would therefore dismiss the appeal.

Lord Edmund-Davies

My Lords,

I gratefully accept everything that the Lord Chancellor has propounded in his speech which I have had the advantage of reading in draft, and I venture to add no more than a footnote.

The cases are probably rare where your Lordships' House would think it right to invoke the Practice Direction (Judicial Precedent) [1966] 1 W.L.R. 1234) notwithstanding the conclusion that a relevant earlier decision had been correctly arrived at. But that such a power exists is recognised in the Practice Direction itself, and Miliangos v. George Frank (Textiles) Ltd. (1976 A.C. 443) is an instance of this House, while not condemning as wrong a decision it had delivered fifteen years earlier, declining to follow it on the ground that the instability which had meanwhile overtaken major currencies was such that, in the words of my noble and learned friend, Lord Wilber- force, at p.467F, " To change the rule would . . . avoid injustice in the " present case ".

Even where an earlier decision is not approved of, the Practice Direction stresses "... the especial need for certainty as to the criminal law ", and in Reg. v. Knuller Ltd. [1973] A.C. 435 Lord Reid emphasised that—

"... our change of practice in no longer regarding previous decisions " of this House as absolutely binding does not mean that whenever we " think that a previous decision was wrong we should reverse it."

The minority dissents of the noble and learned Lords, Lord Diplock and Lord Kilbrandon, in Hyam v. D.P.P.

[1975] AC 55

were based on their conclusions that the law as to intent in murder had been incorrectly stated by this House in D.P.P. v. Smith [1961] A.C. 290 at 335, and that exposure of the error should lead to a quashing of Hyam's conviction for murder. In the present case, on the other hand, your Lordships have unanimously con- cluded and now reiterate that the law as to murderous intent was correctly stated in Reg. v. Vickers [1957] 2 Q.B. 664. Even so, is now the time and is this House the place to reveal and declare (so as to " avoid injustice ")

what ought to be the law and, in the light of that revelation, here and now to recant from its former adoption of Vickers?

My Lords,

I would give a negative answer to the question. I say this despite the fact that, after much veering of thought over a period of years, the view I presently favour is that there should be no conviction for murder unless an intent to kill is established, the wide range of punishment for manslaughter being fully adequate to deal with all less heinous forms of homicide. I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm, an action which, while undoubtedly involving the infliction of " really serious " harm " and, as such, calling for severe punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted murder, nothing less than an intent to kill will suffice. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill.

So there are forceful arguments both ways. And they are arguments of the greatest public consequence, particularly in these turbulent days when, as the Lord Chancellor has vividly reminded us, violent crimes have become commonplace. Resolution of that conflict cannot, in my judgment, be a matter for your Lordships' House alone. It is a task for none other than Parliament, as the constitutional organ best fitted to weigh the relevant and opposing factors. Its solution has already been attempted extra-judicially on many occasions, but with no real success. My Lords, we can do none other than wait to see what will emerge when the task is undertaken by the legislature, as I believe it should be when the time is opportune.

Be that as it may, in respectful and complete concurrence with the Lord Chancellor, I hold that the direction of Lawson J. in the present case was impeccable and I would therefore dismiss the appeal.

Lord Bridge of Harwich

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend on the Woolsack. I respectfully and unreservedly agree with it. Accordingly I would answer the certified question in the affirmative and dismiss the appeal.

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