R v Hancock [1985] UKHL 9

House of Lords
Between
RAppellantHancockRespondent
Before
Lord ScarmanDate 4 November 1985
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 Orders of Her Majesty's Court of Appeal (Criminal Division) of 4th November 1985 complained of in the said Appeal be, and the same are hereby, Affirmed; That the certified question be answered in the affirmative: and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the costs of both the Appellant and the Respondents Be paid out of central funds, pursuant to section 10 of the Costs in Criminal Cases Act 1973, the amount thereof to be certified by the Clerk of the Parliaments.

Cler: Parliamentor

Judgment: 27.2.S6

HOUSE OF LORDS

REGINA

v.

HANCOCK AND ANOTHER (RESPONDENTS)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

Lord Scarman Lord Keith of Kinkel Lord Roskill Lord Brightman Lord Griffiths

LORD SCARMAN

My Lords,In this case the Director of Public Prosecutions appeals against the decision of the Court of Appeal (Criminal Division) [1985] 3 W.L.R. 1014 quashing the respondents' convictions of murder and substituting verdicts of manslaughter. The appeal is brought to secure a ruling from the House upon the refusal of the Court of Appeal to accept as sound the guidelines formulated by this House in a recent case in which the House gave guidance as to the direction appropriate to be given by the judge to the jury in a murder trial in which the judge considers it necessary to direct the jury upon the issue of intent by reference to foresight of consequences. The case is Reg, v. Moloney [1985] AC 905 , and the guidance was in these terms, p.929 G:
"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."
In the present case, the trial judge having based his direction to the jury on the guidance which I have quoted, the two accused (respondents to this appeal) were convicted of murder. The Court of Appeal quashed the convictions on the ground that the judge's guidance may well have misled the jury. The court refused leave to appeal but certified the following point of general public importance:

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" Do the questions to be considered by a jury set out in the speech of Lord Bridge of Harwich in Reg, v. Moloney [1985] A.C. 905, 929 as a model direction require amplification?"
It will be observed that the questions which it was suggested in Moloney that the jury should ask themselves refer to a "natural" consequence, not a "natural and probable" consequence. The Director now appeals with the leave of the House.The appeal is of importance for two reasons. First, of course, there is the need to settle a point of difference between this House and the Court of Appeal. The Moloney guidance was intended to be authoritative in the sense that it was given to be followed by judges in appropriate cases, i.e. those "exceptional" cases, as the House thought, where the foreseeability of death or serious bodily harm may be relevant to a decision as to the intent underlying the act of violence. The House realised and declared, however, that the guidance was no part of the ratio decidendi in the case (Lord Bridge of Harwich at [1985] AC 905 , 920 F-G). The guidance was offered as an attempt in a practical way to clarify and simplify the task of the jury. It was not intended to prevent judges from expressing in other language, if they should deem it wise in a particular case, guidance designed to assist the jury to reach a conclusion on the facts in evidence. The judicial function exercised from time to time by appellate courts of offering guidance either for the benefit of a judge exercising a discretion conferred upon him by law or as to the assistance which a judge may properly give a jury in reaching a conclusion of fact can be helpful but does not result in, or establish, though it should reflect, a rule of law. And, as this case illustrates, there is always the danger that the inevitable generality of guidelines intended to cover a class of case may be such as to be inapplicable or misleading in some cases - usually through an error of omission.The dangers inherent in general guidance for the assistance of juries in determining a question of fact lead me to the second reason for the importance of the appeal, namely that the cases to which the guidance was expressly limited by the House in Moloney, i.e. the "rare cases" in which it is necessary to direct a jury by reference to foresight of consequences, are unlikely to be so rare or so exceptional as the House believed. As the House then recognised, the guidelines as formulated are applicable to cases of any crime of specific intent, and not merely murder. But further and disturbingly crimes of violence where the purpose is by open violence to protest, demonstrate, obstruct, or frighten are on the increase. Violence is used by some as a means of public communication. Inevitably there will be casualties: and inevitably death will on occasions result. If death results, is the perpetrator of the violent act guilty of murder? It will depend on his intent. How is the specific intent to kill or to inflict serious harm proved? Did he foresee the result of his action? Did he foresee it as probable? Did he foresee it as highly probable? If he did, is he guilty of murder? How is a jury to weigh up the evidence and reach a proper conclusion amidst these perplexities? The best guidance that can be given to a trial judge is to stick to his traditional function, i.e. to limit his direction to the applicable rule (or rules) of law, to emphasise the incidence and burden of proof, to remind the jury that they are the judges of fact, and

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against that background of law to discuss the particular questions of fact which the jury nave to decide, indicating the inferences which they may draw ii they think it proper from the facts which they find established. Should not appellate guidance emphasise the importance of particular facts and avoid generalisation? This is a question to be considered. The facts of this case would appear to indicate an affirmative answer.On 16 May 1985 at the Crown Court, Cardiff, Reginald Dean David Hancock and Russell Shankland were convicted of the murder of Mr. Wilkie. In the dark hours of the early morning of 30 November 1984 Mr. Wilkie was driving his taxi along the Heads of the Valley Road. As he approached the bridge over the road at Rhymney he was killed when two lumps of concrete hit his car. The two lumps, a block and a post, had been dropped from the bridge as he approached it.Mr. Wilkie's passenger was a miner going to work. Mr. Hancock and Mr. Shankland were miners on strike, and strongly objected to Mr. Wilkie's passenger going to work. That morning they had collected the block and the post from nearby, had brought them to the bridge under which the Heads of the Valley Road runs through a cutting, and had placed them on the parapet on the side facing towards the Rhymney roundabout. They then awaited the arrival of a convoy escorting the miner on his way to work. The convoy approached the bridge at about 5.15 a.m.: it consisted of a police motor-cycle, a police land-rover, the taxi driven by Mr. Wilkie, and a police sherpa van. The convoy was travelling from the Rhymney roundabout towards the bridge in the nearside lane of the carriageway. Estimates of its speed varied: it was put somewhere between 30 and 40 m.p.h. As the convoy neared the bridge, the concrete block struck the taxi's windscreen. The post struck the carriageway some 4ft. 8ins, from the nearside verge. Before, however, the post subsided on the ground, it was hit by the taxi. The taxi skidded out of control, coming to rest on the embankment. Mr. Wilkie died from the injuries he received in the wrecking of the taxi by the two lumps of concrete.The case for the prosecution was that the two concrete objects were either thrown from the bridge or pushed over its parapet in the path of the taxi at a time when the taxi could not avoid being struck by one or both of them. And, as the trial judge told the jury, the prosecution case could be compressed into one question and answer, the question being "what else could a person who pushed or threw such objects have intended but to cause really serious bodily harm to the occupants of the car?" The answer in the prosecution's submission was that a person acting in that way could in the circumstances have intended nothing less.The defence was simple enough: that the two men intended to block the road, to stop the miner going to work, but not to kill or to do serious bodily harm to anyone. Hancock told Detective Chief Superintendent Caisley that he did not throw the two pieces of "masonry" over the bridge but merely "dropped" them. He told him that he dropped them on the side of the bridge "nearest to the roundabout where I could see them coming." At a later interview Hancock admitted "shoving" the block concrete over the parapet of the bridge, but declared that he believed when he did

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so that he was standing "over the middle [emphasis supplied] lane", i.e. not over the nearside lane, along which the convoy was moving. He said that he did not mean to do anyone damage - "just to frighten him [i.e. the miner going to work] more than anything." Shankland admitted that he was party to the plan to obstruct the road but denied that they intended to hurt anyone. Like Hancock, he emphasised that their plan was to drop the objects in the middle lane of the carriageway, i.e. clear of the lane along which the convoy was travelling, and that they believed that this was what they did.Hancock and Shankland were prepared to plead guilty to manslaughter but the Crown decided to pursue the charge of murder. The issue was ultimately one of intention. Did they (or either of them) intend to kill or to cause anyone serious bodily- harm?The case called for a careful direction by judge to jury as to the state of mind required by law to be proved to their satisfaction before they could return a verdict of murder. The jury would also want his help in weighing up the evidence. The judge's direction as to the intention required by law was impeccable. He said:
"If the prosecution has made you satisfied so as to be sure that Dean Hancock and Russell Shankland agreed that they would, in concert, push or throw missiles from the bridge, each having the intention either to kill or to cause really serious injury, then you will find each of them guilty of murder as the block was thrown or pushed by Dean Hancock in pursuance of the agreement.
When he came to help them on the facts, he offered guidance along the Moloney lines:
"You may think that critical to the resolution of this case is the question of intent. In determining whether a person intended to kill or to cause really serious injury, you must have regard to all of the evidence which has been put before you, and draw from it such inferences as to you seem proper and appropriate. You may or may not, for the purpose of considering what inferences to draw, find it helpful to ask: Was death or serious injury a natural consequence of what was done? Did a defendant foresee that consequence as a natural consequence? That is a possible question which you may care to ask yourselves. If you find yourselves not satisfied so as to be sure that there was an intent to kill or to cause really serious injury, then it is open to you to return a verdict of not guilty of murder, but guilty of manslaughter."
The jury was out for five hours. When they returned they told the judge that they had failed to reach agreement. The judge now gave them the option of a majority verdict. A few minutes later he received a note from the jury in these terms:
"Your Lordship,

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With respect, the jury has discussed at great length the factual aspects of this case and feel, under the circumstances, confident in dealing with this matter.However, the precise legal definitions regarding the committing of murder and manslaughter are causing dissent because of lack of knowledge, particularly with regard to intent and foreseeable consequences."The jury were plainly perplexed. The judge gave them a further direction but did not go beyond what he had already said in summing up. If they were puzzled by the way in which the judge had then dealt with the issue of intent, the second direction would not have helped them. Their problem was how to relate foresight to intention - a problem which they did not find solved by asking themselves the two questions relating to natural consequences and foresight which the judge had put to them.In the Court of Appeal Lord Lane C.J. delivered the judgment of the court. The court found itself driven to the conclusion that the use by the judge of the Moloney guidelines may have misled the jury. The guidelines offered the jury no assistance as to the relevance or weight of the probability factor in determining whether they should, or could properly, infer from foresight of a consequence (in this case, of course, death or serious bodily harm) the intent to bring about that consequence. This was, in the court's view, a particularly serious omission because the case law, as Lord Bridge of Harwich in Moloney [1985] A.C. 905, 925H had recognised, indicated "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." In the court's view the judge's failure to explain the factor of probability was because he faithfully followed Moloney; "he was unwittingly led into misdirecting the jury by reason of the way in which the guidelines in Moloney were expressed:" [1985] 3 W.L.R. 1014, 1018H.The question for the House is, therefore, whether the Moloney guidelines are sound. In Moloney's case the ratio decidendi was that the judge never properly put to the jury the defence, namely that the accused was unaware that the gun was pointing at his stepfather. The House, however, held it necessary in view of the history of confusion in this branch of the law to attempt to clarify the law relating to the establishment of the mental element necessary to constitute the crime of murder and to lay down guidelines for assisting juries to determine in what circumstances it is proper to infer intent from foresight. The House certainly clarified the law. First, the House cleared away the confusions which had obscured the law during the last 25 years laying down authoritatively that the mental element in murder is a specific intent, the intent to kill or to inflict serious bodily harm. Nothing less suffices: and the jury must be sure that the intent existed when the act was done which resulted in death before they can return a verdict of murder.Secondly, the House made it absolutely clear that foresight of consequences is no more than evidence of the existence of the intent; it must be considered, and its weight assessed, together with all the evidence in the case. Foresight does not necessarily

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imply the existence of intention, though it may be a fact from which when considered with all the other evidence a jury may- think it right to infer the necessary intent. Lord Hailsham of St. Marylebone L.C. put the point succinctly and powerfully in his speech in Moloney [1983] A.C. 905, 913 E-F:
"I conclude with the pious hope that your Lordships will not again have to decide that foresight and foreseeability 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 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."
Thirdly, the House emphasised that the probability of the result of an act is an important matter for the jury to consider and can be critical in their determining whether the result was intended.These three propositions were made abundantly clear by Lord Bridge of Harwich. His was the leading speech and received the assent of their other Lordships, Lord Hailsham of St. Marylebone L.C., Lord Fraser of Tullybelton, Lord Edmund-Davies, and Lord Keith of Kinkel. His speech has laid to rest ghosts which had haunted the case law ever since the unhappy decision of your Lordships' House in Reg, v. Smith [1961] A.C. 290 and which were given fresh vigour by the interpretation put by some upon the speeches of members of this House in Reg, v. Hyam [1975] A.C. 55.It is only when Lord Bridge of Harwich turned to the task of formulating guidelines that difficulty arises. It is said by the Court of Appeal that the guidelines by omitting any express reference to probability are ambiguous and may well lead a jury to a wrong conclusion. The omission was deliberate. Lord Bridge omitted the adjective "probable" from the time-honoured formula "foresight of the natural and probable consequences of his acts" because he thought that "if a consequence is natural, it is really otiose to speak of it as also being probable," [1985] AC 905 , 929 B. But is it?Lord Bridge of Harwich did not deny the importance of probability. He put it thus, p.925H:
"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."
In his discussion of the relationship between foresight and intention, Lord Bridge of Harwich reviewed the case law since the passing of the Homicide Act 1957 and concluded at p. 928 F that

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"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."
He referred to the rule of evidence that a man is presumed to intend the natural and probable consequences of his acts, and went on to observe that the House of Lords in Smith's case [1961] A.C. 290 had treated the presumption as irrebuttable, but that Parliament intervened by section 8 of the Criminal Justice Act 1967 to return the law to the path from which it had been diverted, leaving the presumption as no more than an inference open to the jury to draw if in all the circumstances it appears to them proper to draw it.Yet he omitted any reference in his guidelines to probability. He did so because he included probability in the meaning which he attributed to "natural." My Lords, I very much doubt whether a jury without further explanation would think that "probable" added nothing to "natural." I agree with the Court of Appeal that the probability of a consequence is a factor of sufficient importance to be drawn specifically to the attention of the jury and to be explained. In a murder case where it is necessary to direct a jury on the issue of intent by reference to foresight of consequences the probability of death or serious injury resulting from the act done may be critically important. Its importance will depend on the degree of probability: if the likelihood that death or serious injury will result is high, the probability of that result may, as Lord Bridge of Harwich noted and the Lord Chief Justice emphasised, be seen as overwhelming evidence of the existence of the intent to kill or injure. Failure to explain the relevance of probability may, therefore, mislead a jury into thinking that it is of little or no importance and into concentrating exclusively on the causal link between the act and its consequence. In framing his guidelines Lord Bridge of Harwich emphasised [1985] AC 905 , 929G , that he did not believe it necessary to do more than to invite the jury to consider his two questions. Neither question makes any reference (beyond the use of the word "natural") to probability. I am not surprised that when in this case the judge faithfully followed this guidance the jury found themselves perplexed and unsure. In my judgment, therefore, the Moloney guidelines as they stand are unsafe and misleading. They require a reference to probability. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended. But juries also require to be reminded that the decision is theirs to be reached upon a consideration of all the evidence.Accordingly, I accept the view of the Court of Appeal that the Moloney guidelines are defective. I am, however, not persuaded that guidelines of general application, albeit within a limited class of case, are wise or desirable. The Lord Chief Justice formulated in this case guidelines for the assistance of juries but for the reason which follows, I would not advise their use by trial judges when summing up to a jury.

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I fear that their elaborate structure may well create difficulty. Juries are not chosen for their understanding of a logical and phased process leading by question and answer to a conclusion but are expected to exercise practical common sense. They want help on the practical problems encountered in evaluating the evidence of a particular case and reaching a conclusion. It is better, I suggest, notwithstanding my respect for the comprehensive formulation of the Court of Appeal's guidelines, that the trial judge should follow the traditional course of a summing up. He must explain the nature of the offence charged, give directions as to the law applicable to the particular facts of the case, explain the incidence and burden of proof, put both sides' cases making especially sure that the defence is put; he should offer help in understanding and weighing up all the evidence and should make certain that the jury understand that whereas the law is for him the facts are for them to decide. Guidelines, if given, are not to be treated as rules of law but as a guide indicating the sort of approach the jury may properly adopt to the evidence when coming to their decision on the facts.In a case where foresight of a consequence is part of the evidence supporting a prosecution submission that the accused intended the consequence, the judge, if he thinks some general observations would help the jury, could well, having in mind section 8 of the Criminal Justice Act 1967, emphasise that the probability, however high, of a consequence is only a factor, though it may in some cases be a very significant factor, to be considered with all the other evidence in determining whether the accused intended to bring it about. The distinction between the offence and the evidence relied on to prove it is vital. Lord Bridge's speech in Moloney made the distinction crystal clear: it would be a disservice to the law to allow his guidelines to mislead a jury into overlooking it.For these reasons I would hold that the Moloney guidelines are defective and should not be used as they stand without further explanation. The laying down of guidelines for use in directing juries in cases of complexity is a function which can be usefully exercised by the Court of Appeal. But it should be done sparingly, and limited to cases of real difficulty. If it is done, the guidelines should avoid generalisation so far as is possible and encourage the jury to exercise their common sense in reaching what is their decision on the facts. Guidelines are not rules of law: judges should not think that they must use them. A judge's duty is to direct the jury in law and to help them upon the particular facts of the case.Accordingly, I would answer the certified question in the affirmative and would dismiss the appeal. I would propose that the costs of all parties be paid out of central funds.

LORD KEITH OF KINKEL

My Lords,I have had the benefit of reading in advance the speech of my noble and learned friend Lord Scarman. I agree with it, and for the reasons he gives would dismiss the appeal.

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LORD ROSKILL

My Lords,I have had the advantage of reading in draft the speech delivered by noble and learned friend Lord Scarman. For the reasons he gives I too would dismiss this appeal.

LORD BRIGHTMAN

My Lords,For the reasons given in the speech of my noble and learned friend Lord Scarman, I too would dismiss this appeal.

LORD GRIFFITHS

My Lords,I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Scarman. For the reasons he gives I too would dismiss this appeal.

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