Notes Of Cases
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb02724.x |
| Published date | 01 November 1957 |
| Date | 01 November 1957 |
NOTES
OF
CASES
GRIEVOUS BODILY
HARM
AND
IMPLIED
MALICE
IN
MURDER
THE case of John Wilson Vickers created a furore for several
reasons. Not only was
it
one of the first cases of capital murder to
be decided under the Homicide Act,
1957,
but
it
was also one of
those rare cases where the Lord Chief Justice convened a full Court
of Criminal Appeal because, to quote his own words, a point
of
law
had arisen which was
“
of
great importance,” and when the court
originally considered the matter, with three judges, they were
not
agreed. The full court of five judges (including the original three)
were able to reach a unanimous decision, and when the Attorney-
General’s fiat was sought for an appeal to the House of Lords, this
was refused. The Attorney-General’s refusal
to
exercise his dis-
cretion
in
favour of a further appeal was challenged in the House
of
Commons,
no
less than sixty-nine members putting their names
to
Mr.
Sidney Silverman’s original motion. Doubts were raised
whether this motion was wisely worded, and a revised motion was
moved and debated
on
August
1, 1957,
and negatived without a
division.’ Vickers was executed, being the first person to be hanged
in the United Kingdom for two years.
There was clearly sufficient here to make the case a
cause
cdlBbre,
but the question we have
to
consider
is
whether the case
contributes anything to
our
understanding of the law of homicide
and the law governing criminal appeals.
The purpose of section
1
of the Homicide Act,
1957,
as the
marginal note indicates, is to abolish the much criticised doctrine
of constructive malice. The form of words chosen to give effect to
this purpose leaves untouched the common law definition of the
mens rea
for murder,
ziz.,
“
with malice aforethought, express
or
implied.” Implied malice
is
specifically preserved by section
1
(1)
as one
of
the forms of
mens rea
sufficient for murder.
In
the past
this has been taken to include cases where there was
no
intention
to kill (express malice), but there was an intention to inflict
grievous bodily harm
on
the victim, with the result that he
or
she
died. The question raised
on
the appeal
in
Vickers
was whether
the trial judge had correctly explained the law to the jury.
Hinchcliffe
J.
had said that “malice will be implied,
if
the
victim was killed by a voluntary act of the accused
. .
.
done with
the intention either to kill
or
to do some grievous bodily harm.”
In
regard to the intent to do grievous bodily harm, the learned
judge pointed out that
“
the grievous bodily harm need not be
1
H.C.Parl.Deb.
(5th
Ser.),
Vol.
674,
cols.
1623
et
seq.
2
[1957]
3
W.L.R.
326;
[1957]
2
All
E.R.
741.
688
684
THE
MODERN
LAW REVIEW
VOL
20
permanent, but it must be serious, and
it
is serious
or
grievous
if
it is such as seriously and grievously to interfere with the health
or
comfort of the victim.”
The facts were that the victim, an old lady
of
seventy-two,
had been struck many blows by the accused, and there was evidence
that she had been kicked in the face, which the appellant denied.
As Lord Goddard observed, there was certainly evidence
on
which
the jury could hd an intention to do grievous bodily harm, if
properly directed, and it was held that the judge’s direction was
impeccable,
so
the appeal was dismissed.
Two arguments have been advanced in favour of the view that
there was
a
misdirection. The first argument, which was the
substance
of
the appeal, was that the Homicide Act,
1957,
having
abolished constructive malice, it was a misdirection
to
say that
it
was sdcient to establish the offence
of
causing grievous bodily
harm, and where death resulted in the course of that offence,
it
was
murder.
It
was
no
longer the case that death inflicted in the
course of a felony was murder, constructive malice having been
abolished. The only satisfactory way
of
putting the matter
now
would be
to
say that the accused must either have intended to
kill
or
have deliberately used violence of such a character that
death would be likely to result.‘
The Court of Criminal Appeal quite firmly rejected this argu-
ment, and in our judgment, rightly
so.
Mr.
Paget had raised
a
similar point in the Commons debates
on
the Homicide
Bill
without
success, and the
Court
of
Criminal Appeal have now ruled authorita-
tively that
“
it
is impossible to say that the doing of grievous
bodily harm is the other offence referred
to”
in section
1 (1)
of
the Act, which relates to that branch of the doctrine of constructive
malice which applies
“
where a person kills another in the course
or
,furtherance of some other offence.”
The second argument advanced by counsel for ,Vickers is not
really answered by the judgment, and was later developed in the
House
of
Commons by
Mr.
Paget in the debate
on
Mr.
Silverman’s
motion.
It
is that causing grievous bodily harm includes inflicting
many kinds of injury which would not be regarded as necessarily
involving the risk of death,
“
it is a term of art
”
and includes
“
comparatively trifling injuries,” says
Mr.
Paget.6 Therefore
it
is
a misdirection to direct the jury that an intent
to
cause grievous
bodily harm is sufficient
to
constitute implied malice.
Although there is some doubt about the precise meaning of
“
grievous bodily harm,”
it
is clear that
“
trifling injuries
”
are
not sdcient; the injury must be such as to interfere seriously with
3
[1967]
3
W.L.R.
at
p.
330.
4
The
argument
is
set out more
fully
in
the report
of
the first hearing, held
on
6
LOC.
cit.,
p.
330.
*
LOC.
cit.,
col.
1654.
July
1,
and
reported
in
The Times, July
2,
1957,
p.
11,
cols.
4
and
6.
Nov.
1957
NOTES
OF
CASES
685
the health
or
comfort of the victim.
It
is true that in
R.
V.
Ash-
mart‘
it was said that the injury need not be permanent
w
dangerous,8
but
in
practice
it
must be something pretty substantial.
The Royal Commission
on
Capital Punishment discussed a proposal
to adopt a requirement of
cc
serious bodily injury
”
as distinct from
“
grievous bodily harm
”
to connote the graver type
of
injury
required to have been intended in order to substantiate a charge of
murder where death results. But they thought that
“it
would in
practice be diEicult to draw
a
clear distinction between these
terms.” Yet it is precisely this distinction which it would appear
at first sight that the
Vickers
case has now drawn. The judge in
directing the
jury
emphasised that the injury must be serious and
‘‘
such as seriously and grievously to interfere with the health and
comfort of the victim,” and this was held to be a proper direction.
But does this mean that we are now faced with the dichotomy which
the Royal Commission dismissed as unsatisfactory
?
This seems
unlikely.
It
is submitted that there are not two kinds
of
grave
injury,
“
grievous bodily harm
’’
sufficient to found the felony, and
‘‘
serious grievous bodily harm
’’
sufficient to constitute implied
malice for murder, although there may well be a tendency to
emphasise the requirement
of
seriousness where a murder charge
is
involved.
lo
The way out of the difficulty, as
Mr.
Paget rightly remarked,
is
to
adopt the test
of
foresight
of
the death of the victim,
so
per-
suasively advanced by
&.
Turner and incorporated by him in his
edition
of
Russell
on
Crime.”
For
the courts to cling
to
outmoded
means
of
expressing the necessary
mens rea
for murder does not
assist the scientific development of the criminal law, and
it
may
well cause misunderstanding, as in the
Vickers
case. What is
needed
is
a clear recognition that murder requires either an intent
to kill
or
recklessness as to the likelihood that death may result
from one’s conduct. The writer’s opinion
is
that the direction to
the jury in this case was a perfectly correct way
of
explaining the
meaning of implied malice
in
murder, but was not necessarily the
best way of expressing the position, and that the case contributes
very little to
our
understanding of the law
of
homicide.
As to our understanding
of
the law governing criminal appeals,
it likewise contributes little. There was
no
reason to doubt that the
Attorney-General exercised his discretion judicially in this matter,
and it may well have been a judicious decision
on
his part.
In
view
of the eventual unanimity of the Court of Criminal Appeal,
it
would
not seem proper to sanction a further appeal, especially where a
person was under a capital sentence and the result of the appeal
would be unlikely to be different. However, it does seem a pity
Italics supplied.
10
See further, 15
M.L.R.
345, and Cross and
Jones,
An
Introduction
to
Criminal
11
10th ed., 1950, Vol.
1,
pp.
533
et
seq.
7
(1656)
1
F.
&
F.
68.
9
Cmd. 6932, p. 162,
5
472.
Law,
3rd ed., 1953, pp. 251-252.
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