Hyam v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Hailsham of St. Marylebone,Viscount Dilhorne,Lord Diplock,Lord Cross of Chelsea,Lord Kilbrandon |
| Judgment Date | 21 March 1974 |
| Judgment citation (vLex) | [1974] UKHL J0321-1 |
| Date | 21 March 1974 |
| Court | House of Lords |
[1974] UKHL J0321-1
Lord Hailsham of St. Marylebone
Viscount Dilhorne
Lord Diplock
Lord Cross of Chelsea
Lord Kilbrandon.
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Hyam against Director of Public Prosecutions (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel, as well on Tuesday the 15th, as on Wednesday the 16th and Thursday the 17th, days of January last, upon the Petition and Appeal of Pearl Kathleen Hyam of 15, Pembrook Road, Coventry, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 18th of June 1973, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 18th day of June 1973, 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.
My Lords,
In my view the one point in this case is the intention which it is necessary to impute to an accused person in order to find him guilty of the crime of murder. Is it simply the intention to kill or cause grievous bodily harm (in the sense of really serious injury) as is commonly assumed, or is it enough that he intends wilfully to expose another to the risk of death or grievous bodily harm in the sense of really serious injury? I do not believe that knowledge or any degree of foresight is enough. Knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention. But what is that intention? It is acknowledged that intention to achieve the result of death or grievous bodily harm in the sense of really serious injury is enough to convict. But may the intention wilfully to expose a victim to the serious risk of death or really serious injury also be enough? It is upon the answer to this question that, in my view, depends the outcome of the present appeal.
On an indictment containing two counts alleging the murder of two female children, the appellant in this case pleaded guilty to manslaughter, but after a trial lasting three days was convicted of murder by a majority verdict of eleven to one. The question in the appeal is whether the verdicts of murder can stand or whether verdicts of manslaughter should be substituted for them.
The facts are simple, and not in dispute. In the early hours of Saturday, 15th July 1972, the appellant set fire to a dwelling house in Coventry by deliberately pouring about half a gallon of petrol through the letter box and igniting it by means of a newspaper and a match. The house contained four persons, presumably asleep. They were a Mrs. Booth and her three children, a boy and the two young girls who were the subjects of the charges. Mrs. Booth and the boy escaped alive through a window. The two girls died as the result of asphyxia by the fumes generated by the fire. The appellant's motive (in the sense in which I shall use the word "motive") was jealousy of Mrs. Booth whom the appellant believed was likely to marry a Mr. Jones of whom the appellant herself was the discarded, or partly discarded, mistress. Her account of her actions, and her defence, was that she had started the fire only with the intention of frightening Mrs. Booth into leaving the neighbourhood, and that she did not intend to cause death or grievous bodily harm. The judge directed the jury:
"The prosecution must prove, beyond all reasonable doubt, that the accused intended to (kill or) do serious bodily harm to Mrs. Booth, the mother of the deceased girls. If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm then the prosecution will have established the necessary intent. It matters not if her motive was, as she says, to frighten Mrs. Booth".
The judge explained that he had put brackets round the words "kill or" and "death or" because he advised the jury to concentrate on the intent to do serious bodily harm rather than the intent to kill.
There were other passages in the summing-up to the same effect, but this was the vital passage, and the judge reduced it to writing and caused the jury to retire with it into the jury room. As the case proceeded, it is the only passage in the judge's summing-up to which I need draw attention, and gives rise to the only point which was argued before your Lordships' House. The Court of Appeal dismissed the appeal "not without some reluctance", and, in giving leave to appeal to the House of Lords, certified that it involved the following point of law of general public importance, namely, the question:
"Is malice aforethought in the crime of murder established by proof beyond reasonable doubt that when doing the act which led to the death of another the accused knew that it was highly probable that that act would result in death or serious bodily harm?"
This is the only question which, in my view, it is necessary to consider and the whole appeal is, therefore, within a fairly narrow compass. Both in the Court of Appeal and in your Lordships' House the Crown disclaimed, in my view rightly, any argument based on the so called "proviso" (now s. 2(1) of the Criminal Appeal Act, 1968), and accordingly the question certified remains to be considered solely on its merits.
Before directing my mind to the simple point involved there are two general topics I desire to discuss. The first is as to the historical context in which the point falls to be decided, and the second is as to the precise senses in which I shall endeavour to use certain common words such as "motive", "intention", "purpose", "object", "desire".
My Lords, the distinction between murder and manslaughter, both felonies at Common Law, appears to derive from the Statutes of Henry VIII and Edward VI (23 H.VIII c. 1, 25 H.VIII c.3, 1 Ed. VI c. 12, 5 & 6, Ed VI c. 10) by which benefit of clergy was withdrawn from murder committed ex malitia praecogitata, which, in the form "malice prepense" or "prepensed" and "malice aforethought" has continued in common use in legal circles to the present date. (See on this topic Bacon's Abridgment s.v. Murder.)
The precise value of this phrase is open to doubt. As long ago as 1883 Stephen described it as:
"A phrase which is never used except to mislead or to be explained away"
and advised its abolition as a term of art and the substitution for it of a "definite enumeration of the states of mind intended to be taken as constituent elements of murder". In the present case Cairns L.J. in delivering the judgment now appealed from said:
"There is no doubt that murder is killing 'with malice aforethought' and there is no doubt that neither the word 'malice' nor the word 'aforethought' is to be construed in any ordinary sense".
I agree with this latter observation, and would myself think that the sooner the phrase is consigned to the limbo of legal history the better for precision and lucidity in the interpretation of our criminal law.
However, "malice aforethought" was and is part of our criminal jurisprudence and by the beginning of the twentieth century (and for long before that) had come by judicial interpretation to cover a number of states of mind which rendered guilty of murder men and women whose conviction of a capital offence would not be considered acceptable to-day even by the most convinced adherents of the death penalty. In the first place, until the decision in Woolmington v. D P.P. [1935] A.C. 462, it was commonly held that:
"Every person who kills another is presumed to have wilfully murdered him, unless the circumstances are such as to raise a contrary presumption.
The burden of proving circumstances of excuse, justification, or extenuation is upon the person who is shown to have killed another."
(See Stephen's Digest of the Criminal Law, Art. 230). In the second place, by a doctrine known as that of "constructive malice" a person was deemed to have committed murder ex malitia praecogitata if he had either of the following states of mind:
"An intent to commit any felony whatever;
"An intent to oppose by force any officer of justice on his way to, in, or returning from the execution of the duty of arresting, keeping in custody, or imprisoning any person whom he is lawfully entitled to arrest, keep in custody, or imprison, or the duty of keeping the peace or dispersing an unlawful assembly, provided that the offender has notice that the person killed is such an officer so employed"
and the expression "officer of justice" could be held to include not merely a constable, but any private person who happened in the given circumstances to have the right to do any of the acts concerned (See Stephen's Digest, Art. 223). This remained the law until 1957, when, by section 1 of the Homicide Act of that year, the doctrine of constructive malice in the above sense was abolished and a man was said not to be guilty of murder unless the killing were:
"done with the same malice aforethought (express or implied) as is required for a...
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