R v Cunningham
| Jurisdiction | England & Wales |
| Judge | Lord Hailsham of St. Marylebone,Lord Wilberforce,Lord Simon of Glaisdale,Lord Edmund-Davies,Lord Bridge of Harwich |
| Judgment Date | 08 July 1981 |
| Judgment citation (vLex) | [1981] UKHL J0708-1 |
| Date | 08 July 1981 |
| Court | House of Lords |
[1981] UKHL J0708-1
Lord Hailsham of St. Marylebone
Lord Wilberforce
Lord Simon of Glaisdale
Lord Edmund-Davies
Lord Bridge of Harwich
House of Lords
My Lords,
On the 14th February 1980 the appellant was arraigned on an indictment accusing him of the murder of a Persian national, named Korosh Amine Natghie (known as "Kim") on the 8th October 1979. There was a second count of unlawful wounding with which we are not concerned. To the charge of murder the appellant pleaded that he was indeed guilty of the manslaughter of "Kim", but that he was not guilty of his murder. He was tried before Lawson J. and a Kent jury and on the 18th February 1980 he was duly convicted of murder. His appeal against conviction was dismissed by the Court of Appeal (Criminal Division) consisting of Lord Lane C.J. and Boreham and Ewbank JJ. on 4th December 1980. They refused leave to appeal to the House of Lords, but certified that the following point of law of general public importance was involved in the appeal, viz.,
"Whether a person is guilty of murder by reason of his unlawfully killing another intending to do grievous bodily harm."
On the 19th March 1981 the appellant was given leave to appeal by an Appeal Committee of your Lordships' House. In these circumstances the appeal comes before your Lordships for decision.
Broadly speaking the facts are not in dispute. The victim died on the 8th October 1979 when, in view of the fact that he was virtually already dead, the breathing machine on which he had been placed on the 5th October was finally switched off. Kim's death was due to a fracture of the base of the skull and a subdural haemorrhage as the result of an incident on the 30th September 1979 at the Albion Public House, Margate. These injuries were caused by blows received from the appellant, which included repeated blows from a chair or part of a chair, some of which were inflicted while Kim lay defenceless upon the ground. The attack by the appellant on Kim was unprovoked, but motivated by jealousy. The appellant suspected Kim, wrongly it seems, of associating sexually with the appellant's former mistress whom the appellant planned to marry.
At no time did the appellant deny the attack or that the attack was the cause of death. The point decided by the Court of Appeal in R. v. Malcherek, R. v. Steel [1981] 2 All E.R. 422, was neither taken nor argued. From the start, however, he asserted that he had not intended to kill the deceased. There was, however, ample evidence from which the jury could infer, as they evidently did, that he did intend to inflict grievous bodily harm, whether or not this is defined as "really serious injury".
Constrained by previous authorities, Lawson J. directed the jury that the sole question for them was:
"As a matter of law, the question of fact on which your verdict depends is solely this … 'At the time when the defendant inflicted the injuries on Kim … did he intend to do him really serious harm?' If the answer to that question is 'yes', you find him guilty of murder. If the answer to the question is 'no', then you find him not guilty of murder, but guilty of manslaughter."
There were further directions to the same effect later in the summing up, and on a subsequent request by the jury for further instruction on the difference between murder and manslaughter, but they do not alter the point at issue. This direction was rightly characterised by the Lord Chief Justice in the course of delivering the judgment of the Court of Appeal as "by reason of a number of decisions … binding on this court … correct and impeccable". The sole question, therefore, for your Lordships' House is whether these decisions, binding on both courts below, were correctly or wrongly decided. The assumption which must be made for the purpose of determining the appeal is that the appellant in inflicting the fatal injuries on the deceased did intend to inflict really serious injury, but did not intend to kill him. In the circumstances of the judge's direction, there can be no question of applying the proviso.
Murder has been traditionally defined as unlawful killing with malice aforethought. It was this element of malice aforethought which rendered the offence unclergiable after the reign of Henry VIII (see my speech in Hyam v. D.P.P. [1975] A.C. 55 at page 66). It is, of course, common ground that malice aforethought at least includes an intention to kill. The question is how nearly to this intention malice must be confined to constitute the offence of murder. The Homicide Act 1957 abolished the species of malice known as "constructive" but it has hitherto been accepted doctrine that the Homicide Act did not abolish the doctrine, in my view rather unfortunately, known as "implied malice": see section 1(c) of the Act, R. v. Vickers [1957] 2 Q.B. 664 at 671, 672 and Hyam ( supra). I call the label unfortunate because the "malice" in an intention to cause grievous bodily harm is surely express enough. The question is whether the fact that it falls short of an intention to kill and may fall short of an intent to endanger life is enough to exclude an unlawful killing resulting from an act inspired by this intention from the ambit of the crime of murder. The intermediate doctrine which adds on an intention to endanger life to the positive intention to kill as sufficient mens rea to complete the offence need not be considered until I consider Lord Diplock's dissenting speech in Hyam. At the other end of the spectrum, it is established that, since section 8 of the Criminal Justice Act 1967, the test whether malice is express or implied is subjective (see Hyam, supra). The definition of grievous bodily harm means "really serious bodily harm" in current English usage ( D.P.P. v. Smith [1961] A.C. 290, R. v. Metharam [1961] 3 All E.R. 200, Hyam v. D.P.P., supra, at p.68), all disapproving ( R. v. Ashman 1 F. & F. 88).
Counsel for the appellant understandably founded his case upon the powerful dissenting opinion of Lord Diplock in Hyam, concurred in by Lord Kilbrandon, and asked, if necessary, your Lordships to avail themselves of the Practice Direction in [1966] 1 W.L.R. 1234 to give effect to it. I say "if necessary", because counsel properly drew our attention to the somewhat Delphic italicised phrase employed by Lord Cross of Chelsea at p.98 of the report in adding his weight to the opinions of what became the majority in an otherwise equally divided House. In order to dispose first of this minor point I do not believe that your Lordships could give effect to the submission of counsel that R. v. Vickers was wrongly decided without invoking the Practice Direction. However apparently ambiguous the italicised phrase, there is no doubt on which side Lord Cross's vote was cast, and, even if there were any doubt about this, Vickers was effectively endorsed by your Lordships' House in D.P.P. v. Smith, supra, which for this purpose has not been overtaken by the Criminal Justice Act 1967. In order to determine the appeal in favour of the appellant and to give effect to Lord Diplock's opinion it would be necessary, in my view, not merely to override Vickers, but to disregard the endorsement of it in Smith and Hyam notwithstanding that the exact point in Hyam was concerned with the proposition formulated in Stephen's Digest (9th edition, Art 264(b) whilst the present case is concerned with the part of the proposition in Art 264(a)). (As to these, see the quotation which follows.)
Before I embark on an analysis of Lord Diplock's argument, on your Lordships' attitude to which, substantially, I regard the appellant's case to stand or fall, there are one or two preliminary observations as to the history of the crime of homicide and the language employed in defining them on which I would desire to comment. As I pointed out at p.66 of the report in Hyam, the expression "malice aforethought", in whatever tongue expressed, is unfortunate since neither the word "malice" nor "aforethought" is construed in its ordinary sense. In construing the word "aforethought" an intention to kill or, if Lord Diplock's dissenting opinion be followed, to endanger life, however lacking in premeditation, is admittedly enough to constitute the mens rea in murder in the absence of the availability of such mitigating factors as self defence, provocation, insanity, or diminished responsibility, notwithstanding that, five minutes before his act, the killer may have been innocent of any such intention. As regards "malice", the necessary intention for the purposes of the present appeal is either an intention to kill or endanger life (as Lord Diplock's speech in Hyam would have had it) or the intention to kill or cause really serious harm (or the addition to it decided in Hyam) as the five-judge Court of Appeal and your Lordships' House have decided it to be in Vickers, Smith and Hyam respectively. Each state of mind is something which may exist without the assailant being consciously activated by "malice" in the popular sense of the word.
Stephen's Digest (Art 264) defined "malice aforethought" as follows:
"Murder is homicide not excused or justified by the exceptions laid down in Chapter XXX, and with malice aforethought as hereinafter defined.
Malice aforethought means any one or more of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated:—
( a) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not;" [This is the state of mind affirmed in Vickers].
( b) knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually...
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