R v Moloney [1984] UKHL 4

House of Lords
Between
RAppellantMoloneyRespondent
Before
Lord Hailsham of St
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 Causebe, 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 HarwichLORD 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:

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"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

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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

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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

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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

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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

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"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:

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"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

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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.

(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

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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

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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."

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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.

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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,

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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

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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

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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.

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