Hyam v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS |
| Judgment Date | 18 June 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J0618-1 |
| Docket Number | No. 6530/C/72 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 June 1973 |
[1973] EWCA Crim J0618-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Cairns
Mr. Justice Browne
and
Mr. Justice Shaw
No. 6530/C/72
MR. I. C. R. McCULLOUGH, Q.C. and MR. B. FARRER appeared as Counsel for the Appellant.
MR. L. S. SHIELDS, Q.C. and MR. B. LAUGHLAND appeared as Counsel, for the Crown.
These are the actual reasons for the judgment of the Court which was delivered at the end of the hearing on the 15th May, 1973.
On the 24th November, 1972 at Warwick Crown Court before Ackner J. the Appellant Mrs. Pearl Kathleen Hyam was convicted on two Counts of murder and was sentenced to life imprisonment.
The two Counts arose in this way; two girls, daughters of a Mrs. Booth, met their deaths because the house in which they were sleeping was set on fire by the Appellant and they both died by asphyxiation by the fumes.
The Appellant appeals against conviction on a certificate from the trial Judge in these terms:
"I certify that the case is a fit case for appeal on the ground that it raised the question whether the prosecution had established the necessary intent in the crime of murder by proving beyond reasonable doubt 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".
Further grounds of appeal were advanced in the Appellant's notice.
There was no dispute about the primary facts.
The Appellant separated from her husband in the fifties and shortly afterwards met a Mr. Jones. Soon after that he left his wife and he and the Appellant had an affectionate relationship involving sexual intercourse. In 1957 he was divorced and in 1968 she divorced her husband. By then she had developed some gynaecological trouble. Meanwhile, in about 1964 Mr. Jones had met Mrs. Booth. From 1958 there was no further sexual intercourse between Mr. Jones and the Appellant. She attributed this at first to his showing consideration to her because of her illness, but by 1970 she became suspicious of his relations with Mrs. Booth and was deeply jealous. She sent anonymous letters to Mrs. Booth - and some to herself as a cover. In the spring of 1971 she learnt that Mr. Jones and Mrs. Booth had become engaged to be married. In May 1972 Mrs. Booth obtained a decree nisi against her husband. It was due to be made absolute in July 1972. During that month the Appellant learnt that Mr. Jones and Mrs. Booth were planning to go on holiday together.
In the early hours of the 15th July, 1972 the Appellant made her way by a van to Mrs. Booth's house in Coventry. Mrs. Booth, her son and her two daughters were sleeping there. The Appellant took with her a gallon can containing petrol. She passed Mr. Jones' house on the way and she looked for his lights to make sure he was at home because, as she said in evidence, she did not want to do him any harm. She parked the van a little distance away from Mrs. Booth's house. She went to that house and removed a milk bottle from the step in case she should knock it over and arouse somebody by the noise. She poured petrol from the can through the letter-box - probably about half a gallon of it. She also stuffed some newspaper through the letter-box. According to her she had for some reason gone back to the van and there came across a box of matches which she took to the house door. She lit the paper, whereupon the petrol was ignited and immediately caused a tremendous blaze. She then left and went home without giving the alarm or doing anything to stop the conflagration. Mrs. Booth and her son escaped from a window, but the two girls were overcome by the fumes and died.
The Appellant's case was that she acted in this way only to frighten Mrs. Booth. Mrs. Booth had come from Newcastle-under-Lyme and the Appellant said she hoped that Mrs. Booth would be so much afraid of suffering some future injury that she would go back there. The Appellant asserted that she had not intended to cause bodily injury to anybody let alone kill anybody. It was conceded on her behalf that her acts had been reckless and she pleaded guilty to manslaughter but she pleaded not guilty to murder. She also raised the plea of diminished responsibility, but that was not pursued on the argument of the appeal.
A vital part of the Judge's direction to the jury, to which he attached such importance that he had it typed out and copies handed to them, was as follows: "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.
The certified ground of appeal relates to this direction. Further grounds were argued but we can deal with them shortly.
It was said that the Judge was wrong to invite the jury to concentrate on the less serious intent because a person setting fire to a house was more likely to envisage death than injury as a consequence (especially as the Judge equated serious bodily harm with "being at least partially burned") but that if the jury had directed their minds to the risk of death they might well have thought it inconceivable that the Appellant should knowingly risk killing four people. Now it must have been clear to the jury that when the Judge spoke of somebody being "at least partially burned" he was referring not to some trivial burn but to something really serious. It could be as cogently argued that a woman would be unlikely to risk causing such burns to four people (against three of whom she had no grudge) as that she would be unlikely to risk killing them. If, however, the jury thought the risk of death was more likely to be envisaged than that of injury they were free to consider the case on that basis. The Judge expressed the view that it was "safer and wiser" to concentrate on the former rather than on the latter but he did include the words "Kill or" in his direction and he did, early in his summing-up, make quite clear to the jury that it was for them to decide "what happened, whom you believe, what various people thought and intended".
When it was suggested that in one passage in the summing-up there was "a trace of an objective approach" where the Judge said that "a person's motive could be merely to frighten someone but yet the means she chose so deadly that it was very likely that it would cause death or serious bodily harm." Read in its context that sentence clearly meant "likely in the mind of that person". Other parts of the summing-up, including the typed out passage, make it abundantly clear that it was the accused's own mind that the jury must examine.
Next it was complained that the Judge had failed to remind the jury that two doctors, who had been called to deal with the issue of diminished responsibility, had said that, having heard the Appellant's evidence, they were of the view that she was trying to tell the truth. We cannot regard this as a serious omission; it was for the jury and not for the doctors to decide whether or not she was trying to tell the truth in her evidence.
Coming then to the certified ground of appeal, we were faced with a problem, by no means easy of solution, as to what state of mind of an accused person, short of the deliberate purpose of killing, can now form the basis of a conviction for murder.
There is no doubt that murder is killing "with malice aforethought", and there is no doubt that neither the word "nalice" nor the word "aforethought" is to be construed in any ordinary sense. The whole phrase is to be interpreted according to principles that have been laid down in decided cases.
Next it is clear that there is malice aforethought if a person kills with intent to kill or do grievous bodily harm. ( R. v. Vickers, (1957) 2 Queen's Bench, 664).
Now in, the ordinary use of language the word "intent" (or the commoner word "intention") has...
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