Notes Of Cases
| Published date | 01 November 1974 |
| DOI | http://doi.org/10.1111/j.1468-2230.1974.tb02411.x |
| Date | 01 November 1974 |
NOTES
OF
CASES
MALICE AFORETHOUGHT
"
Is
malice sforethought in the crime of murder estab-
lished 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
?
"
Tms
question, certified for consideration by the House of Lords
in
Hyam,'
raises two fundamental problems about
mens Tea.
First,
does the definition of
"
intent
"
in the criminal law extend to a
situation where the forbidden consequence was merely foreseen by
the accused, but neither desired, sought after nor aimed at by him
?
Secondly, in the particular crime of murder,
is
it
enough to secure
a conviction
to
prove intent (however defined) to cause grievous
bodily harm, as opposed
to
intent to kill?
It
has tended to be
assumed that an affirmative answer should be given to both these
questions, and therefore to the question certified in
Hyarnj2
the
attention
of
commentators in recent years hsaving been focused
on
the different issue, raised by
D.P.P.
v.
Smithpa
of whether any
subjective state of mind at all needs to be proved in order to convict
of murder. Moreover, as a practical matter, the line between in-
tentional killing and knowingly running the risk of causing serious
bodily hiarm is a fine one, and only rarely will facts occur, such as
those in
Hy~rn,~
that can be argued with any plausibility to involve
the latter but not the former state of mind.
As
a
result, little direct
authority exists
on
the question, and the House found itself in an
area where considerations of principle, policy,
or
even the court's
sense of the fitness of things, are paramount.
Intention
It
is accepted more
or
less without question that where,
as
in
most common law crimes, a subjective
mens rea
has to be estab-
lished, this requirement is satisfied not only by showing that the
accused planned, sought after
or
desired the consequence that the
definition of the crime forbids, but also by showing that the accused
foresaw (even
if
he did not desire) that the consequence would
probably result from his actions, land yet did not desist from those
1
Hyam
V.
D.P.P.
[1974]
2
All
E.R.
41.
2
Cross and Jones,
Introduction
to
Criminal
Law
(7th
ed.), pp. 44
and
139-144;
Smith
and
Ho
an,
Criminal
Law
(Srd ed.), pp.
46
and
226-227.
3
[196l]
A.C.
'2%.
4
H
set fire to
Mrs.
B's
house in order,
it
was claimed,
to
frighten her, but
without
any
intention
of
musing death
or
grievous bodily
h8Im.
Mrs.
B
escaped from the fire, but her two daughters perished.
H
knew that people
were,
or
were
very
probably, in
the
house st the time.
676
Nov.
1974
NOTES
OF
CASES
677
actions;
or,
in other words, that he was
((
reckless
”
as to the
occurrence of the forbidden consequence. However, this undoubted
fact that the
mens Tea
of most particular crimes includes reckless-
ness as well as purpose
or
desire has led to some analytical difficul-
ties when writers have attempted
a
general definition
of
the
subjective states of mind characteristic of
mens Tea;
the principal
problem being that recklessness, because
it
lacks the element of
purpose
or
dtsire, seems to be something different from at least
the popular meaning of
cc
intention.” Two rationalisations of this
situation are available: (i) that acting with knowledge that the
consequence would probably occur satisfies the definition
of
intention
5;
and (ii) that intention as to the consequence, and
recklessness as to the consequence, are alternative types of
mens
Tea6
Rationalisation (ii) places foresight of consequences under the
definition of recklessness, and thus avoids tbe need to consider
whether, as is assumed by rationalisation (i), foresight without
desire also falls under the definition of intention.
This and theorising is relevant in the present context only
because Ackner
J.,
in directing the jury in
Hyam,
told them that
(‘
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 esbblished
the necessary intent.” Hyam contended that this direction was
incorrect because knowledge that
a
certain consequence was highly
probable does not establish an
intent
to produce that consequence
’
;
in other words, that rationalisation (i) above was wrong, and fur-
ther that, contrary to rationalisation (ii) above, recklessness was
not an alternative to intention at least as the
mens
rea
of murder.
Lord Hailsham agreed with this argument in theory,l but under-
mined
it
in practice by holding that the
((
intention
”
required could
be satisfied by an intention to expose the victim to the
risk
of
death
or
grievous bodily harm
O;
Viscount Dilhorne thought that
Ackner
J.’s
formulation had been correct but that, in any event,
knowledge of the probability of the relevant consequences amoun-
ted to malice aforethought whether
or
not
it
constituted
“
inten-
tion
”
lo;
Lord
Cross
saw difficulties, both in logic and in ordinary
lNanguage,ll in viewing foresight of consequences as an example of
intention but, like Lord Dilhorne, thought that the relevant ques-
5
e.g.
Cross
and Jones,
op.
cit.
p.
44,
where this is referr:! to as
“
oblique
intention.” The learned authors employ the phraseolo
of
recklessness
”
as
E
vehicle for discussion of the different question of tg
degree
of probability
with which the consequence
must
be foreseen:
op.
cit.
p.
47.
6
e.g.
Smith and Hogan,
op.
cit.
pp.
45-46.
The learned authors seem
to
restrict
“
oblique
”
intention
to
cases where the consequence in question
is
known
to
be certain,
or
“
virtually certain,” to result from the accused’s acts, even if not
desired by him.
I
7
[1974]
2
All
E.R.
at
p.
67G.
8
At p.
54G.
9
At p.
55D-G.
’0
At p.
69D-I?.
1:
At pp.
70H-71B.
678
THE
MODERN
LAW REVIEW
VOL
a7
tion was not one of the definition of intention but of whether, as a
matter of the law of murder, foresight of death
or
grievous bodily
harm sufflced
for
malice aforethought
la;
and Lord Diplock said
that on this issue he agreed with those of his brethren who took
the
“
uncomplicated view
”
that a
mew rea
requirement was
satisfied by knowledge that a particular consequence was likely to
result, as well as by desiw to produce that consequence.1s
This last approach, roughly that of rationalisation (ii) above,
seems, with respect, to provide the clearest and simplest answer
to the analytical problem, in effect by pointing to various states
of mind that the law accepts as fulfilling the requirement of
mens rea,
without becoming embroiled in speculation about whether
all those states of mind can be lumped together under
“
inten-
tion.” There are, of course, crimes the
mens Tea
of which is
indeed restricted to desire of,
or
purpose to produce, the forbidden
consequences
lo;
but such cases seem to conwrn inquiries into the
accused’s state of mind with regard to future
or
unachieved results
of
his conduct, where the concept inherent in
“
recklessness
”
of
liability, because
of
hazardous conduct, for the actual occurrence
of results is inappropriate. Generally speaking, therefore, reckless-
ness as well as purpose
or
desire
is
well established as
a
general
head
of
mew rea;
and whilst there may be policy reasons for
limiting the particular crime
of
murder
to
purposive ki1ling,l5 such
limitation was in
Hyam
held, rightly, not to follow from
an
inves-
tigation
of
the meaning
of
‘‘
intention
”
in
the criminal law
at
large.
D.P.P.
v.
Smith
The House in
Hyam
did not formally overrule the objective
test for malice aforethought adopted in
D.P.P.
v.
Smith,16
Lord
Diplock thinking that such
a
result had already been achieved
by section
8
of the Criminal Justice Act
1967.
As
a
matter
of
strict construction
it
is,
with respect, very doubtful whether this
last view
is
correct
la
but the reality of the matter is that the
whole tenor of current judicial attitudes, and indeed the whole
ambit of the dispute in
Hyam,
is
so
far from suggesting that the
law of murder involves any objective liability that
Smith,
on this
point, overruled
or
not, can for the future be safely
left
in decent
obscurity.lg
Grievous bodily harm
Hyam advanced two contentions
:
that recklessness as to death,
and not mlerely as to grievous bodily harm, was necessary to convict
12
At
p:
71E-D.
13
At
p.
63A-C.
14
e.g.
Steane
“471 K.B. 997. (1973) 123
N.L.J.
at
p.
985.
16
See
note 3
supra.
‘7
[1974] 2 All
E.R.
at
p.
68D.
18
19671
A.S.C.L.
230-232;
Smith
and
Hogan,
op.
cit.
229.
Cf.
Wallett
l9
Of.
Smith
$741
Crim.L.R.
367.
[1!368] 2
Q.B.
367.
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