United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/241




Die Mercurii 8° Julii 1981

Upon Report from the Appellate Committee to
whom was referred the Cause Regina against
Cunningham, That the Committee had heard Counsel
as well on Tuesday the 2nd as on Wednesday the 3rd
and Thursday the 4th days of June last upon the
Petition and Appeal of Anthony Barry Cunningham,
currently detained at Her Majesty's Prison, Canterbury
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 4th day
of December 1980 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; as also upon
the Case of the Director of Public Prosecutions (on
behalf of Her Majesty) lodged in answer 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 certified question
be answered in the Affirmative and that the said Order
of Her Majesty's Court of Appeal (Criminal Division)
of the 4th day of December 1980 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.




Lord Hailsham of St. Marylebone
Lord Wilberforce
Lord Simon of Glaisdale
Lord Edmund-Davies
Lord Bridge of Harwich

HOUSE OF LORDS

REGINA
(RESPONDENT)

v.

CUNNINGHAM
(APPELLANT)




Lord Hailsham of St. Marylebone

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 man-
slaughter 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

2

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] AC 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 some-
what 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 deter-
mine 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

3

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 " afore-
" thought" 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 avail-
ability 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 killed or not, although such
" knowledge is accompanied by indifference whether death or
" grievous bodily harm is caused or not, or by a wish that it may
" not be caused;" [This is approximately the state of mind
affirmed in Hyam].

" (c) an intent to commit any felony whatever; (or, submitted, an
" intent to commit any felony of such a kind that the actual
" commission thereof would involve the use or at least the threat
" of force against the person killed.) " [This state of mind was
excluded by the Homicide Act, 1957].

" (d) 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." [This state of mind too was
excluded by the Homicide Act 1957].

This definition was the result of a long and careful research into the earlier
cases and authors, beginning with Coke and ending with East, as set out
at length in Stephen's original note XIV (now note VIII in Mr. Sturge's
edition). It represents the author's view of what the law of murder was
independently of the doctrine of " constructive malice " contained in sub-
paragraphs (c) and (d) of the definition now effectively abolished by the
Homicide Act 1957.

By the time Vickers was decided, the terminology of the law thus recog-
nised three classes of malice aforethought as sufficient to constitute the
crime of murder, viz. " express ", " implied " and " constructive " malice,




4

the last mentioned, as I have said, having been abolished by the Homicide
Act 1957, but corresponding to sub-paragraphs (c) and (d) of Stephen's
classification. These last are sometimes labelled "felony murder", and
" arrest murder ". For myself, as I have observed before (see Hyam at p.67),
I find the terminology inconvenient. I can understand well enough how a
contract can be express (when expressed in words oral or written) or implied
(e.g. when to be inferred from conduct, from a course of dealing or by
necessary implication). I find much greater difficulty in applying this dis-
tinction to a state of mind. Since a mental state must necessarily be
subjective, there is an argument for saying that all states of mind must be
express. Since a mental state can only be inferred, whether from the deeds
or words of the subject, or, as Lord Diplock points out (Hyam p.90) from
his own subsequent account of the matter on oath in the witness box, there
is an equally strong case for saying that all states of mind must be implied.
Nevertheless, though I personally find the terminology misleading and
inappropriate, it was expressly recognised by the draftsman of the Homicide
Act 1957 (section 1(1)) as being current law at the time, and by the reinforced
Court of Appeal in Vickers. Despite the summing up of Hinchcliffe J. quoted
at p.672 of the report in Vickers, and the fact (of which I am fairly certain)
that the phrase " implied malice " has not been used consistently at all,
(Stephen in his History of the Criminal Law uses it at least once in the sense
of " constructive malice"), I was at one time tempted to the view that
" express malice " was originally used to refer to Stephen's sub-paragraph
(a) (the Vickers point) and " implied malice " to Stephen's sub-paragraph (b)
(the Hyam point). However in deference to the authority of Vickers where
the phrase is not used in this sense either by the Court of Appeal or by
Hinchcliffe J., I do not now think it safe to express this opinion, attractive
as I still find it. Whatever the truth of the matter, the language of decided
cases and of section 1(1) of the Homicide Act 1957 compels one to accept
the nomenclature as established legal usage, and to assume a tripartite
division between express and implied malice, on the one hand, and con-
structive malice on the other.

This brings me to Lord Diplock's dissenting opinion which is really
central to the appellant's case. Like myself, he is offended by the express/
implied terminology, which is, however, inescapable in discussing the
previous learning. For this terminology Lord Diplock substitutes the far
more convenient " actual malice" and " constructive malice". I do not
myself consider that this innovation, by itself an improvement, necessarily
affects the validity, or otherwise, of his argument, though it does enable him
to skate over the difficulty created by the express retention by the draftsman
of the " implied " category in section 1(1) of the Act of 1957.

The real nerve of Lord Diplock's argument, however, does, as it seems to
me, depend on the importance to be attached to the passing in 1803 of Lord
Ellenborough's Act (43 Geo. 3 c.58) by which, for the first time, wounding
with the intent to inflict grievous bodily harm became a felony. This, Lord
Diplock believes, rendered it possible to apply the doctrine of " felony
"murder" as defined in Stephen's category (c), abolished in 1957, to all
cases of felonious wounding, where death actually ensued from the wound.
The abolition of "felony murder" in 1957 was thus seen to enable the
judiciary to pursue the mental element in murder behind the curtain imposed
upon it by the combined effect of the statutory crime of felonious wounding
and the doctrine of constructive malice, and so to arrive at a position in
which the mental element could be redefined in terms either of an intention
to kill, or an intention actually to endanger human life, to correspond with
the recommendations of the Royal Commission of 1839.

It seems to me, however, that this highly ingenious argument meets with
two insuperable difficulties. I accept that it appears to be established that
the actual phrase "grievous bodily harm", if not an actual coinage
by Lord Ellenborough's Act, can never be found to have appeared
in print before it, though it has subsequently become current coin,
and has passed into the general legal jargon of statute law, and the cases




5




decided thereon. But counsel, having diligently carried us through the
institutional writers on homicide, starting with Coke, and ending with East,
with several citations from the meagre reports available, only succeeded in
persuading me at least that, even prior to Lord Ellenborough's Act of 1803,
and without the precise label " grievous bodily harm ", the authors and the
courts had consistently treated as murder, and therefore unclergiable, any
killing with intent to do serious harm, however described, to which the label
" grievous bodily harm ", as defined by Lord Kilmuir at p.334 of the report
of D.P.P. v. Smith, reversing the " murder by pinprick " doctrine arising from
R. v. Ashman (1858) 1 F. & F. 88, could properly have been applied. It
would be tedious to pursue the citations all in detail. We were referred
successively to Co. Inst. 3, 47-52, Hale P.C. c.33 424-477, Hawkins P.C.I
pp.85-88, Blackstone Com. iv. 191-201, Foster com. 255-267, and East 1
103, 214-233. But the further we went into these passages, the more hopeless
appeared to be the view that, irrespective of constructive malice, malice
aforethought had ever been limited to the intention to kill or endanger life.
On the contrary, these authorities reinforced the conclusion arrived at by
Stephen's original note XIV (in the Sturge edition note VIII). This is the
more striking in that the last few lines of the note demonstrate clearly that
the possible combined effect of the felony murder rule and the existence of
a statutory crime of felonious wounding was consciously present to the
author's mind.

There is a second difficulty in the way of treating Lord Ellenborough's
Act as providing the kind of historical watershed demanded by Lord Dip-
lock's speech and contended for in the instant appeal by appellant's counsel.
This consists in the fact that, though the 19th century judges might in theory
have employed the felony murder rule to apply to cases where death ensued
in the course of a felonious wounding, they do not appear to have done so
in fact. No case was cited where they did so. On the contrary, there appears
to be no historical discontinuity between criminal jurisprudence before and
after 1803. Stephen never so treated the matter (either in his text, or, except
in the last few lines, in his note XIV). It was not so treated in the Australian
case of La Fontaine v. R. (1976) 136 C.L.R. 62 (after Hyam, but in a juris-
diction in which the constructive malice rule still applied). It was pointed
out by counsel for the Crown that the relevant felony created by Lord
Ellenborough's Act was limited to cutting or stabbing and did not extend
e.g. to beating, which would effectively have excluded the felony murder
doctrine from many cases where death ensued from an act intended to
inflict grievous bodily harm. For myself, I think that there is a logical
difficulty not based on this narrow point of construction, which prevented
the judges from adopting the principle. Felonious wounding intrinsically
involves proof by the prosecution of the requisite intention and therefore
gives no added force to the earlier law, if I have correctly interpreted the
learning before 1803. The way is thus clear on any view to accept as decisive
what I myself had always understood to be the law prior to 1957. This is
contained in the statement of Lord Goddard C.J. representing the court of
five judges as reported in Vickers at p.670 of the report:

" Murder is, of course, killing with malice aforethought, but ' malice
" ' aforethought' is a term of art. It has always been defined in English
" law as either an express intention to kill, as could be inferred when
" a person, having uttered threats against another, produced a lethal
" weapon and used it on a victim, or implied where, by a voluntary act,
" the accused intended to cause grievous bodily harm to the victim,
" and the victim died as the result."

I should, however, make at least a passing reference to the valid observa-
tion made by Lord Diplock at p.91 of the report of Hyam where he points
out that, at one point in his History, Stephen appears to treat his draft code
(which clearly would have supported Lord Diplock's formulation) as " exactly
" corresponding " with his formulation in the Digest (which it clearly does
not). As to this, I can only say, on this point, Stephen was surely in error.
The two documents do not " exactly correspond ".




6

Counsel for the appellant used one further ground, not found in Lord
Diplock's opinion, for supporting the minority view in Hyam, This was the
difficulty which, as he suggested, a jury would find in deciding what
amounted to an intention to inflict " grievous bodily harm " or " really
" serious bodily harm " as formulated in Smith. I do not find this argument
convincing. For much more than 100 years juries have constantly been
required to arrive at the answer to precisely this question in cases falling
short of murder, (e.g., the section 18 cases). I cannot see that the fact that
death ensues should render the identical question particularly anomalous, or
its answer, though admittedly more important, any more difficult. Nor am
I persuaded that a reformulation of murder so as to confine the mens rea
to an intention to endanger life instead of an intention to do really serious
bodily harm would either improve the clarity of the law or facilitate the task
of juries in finding the facts. On the contrary, in cases where death has
ensued as the result of the infliction of really serious injuries I can see endless
opportunity for fruitless and interminable discussion of the question whether
the accused intended to endanger life and thus expose the victim to a
probable danger of death, or whether he simply intended to inflict really
serious injury.

I must add one or two words about the arguments presented in the view
of the minority on p.90 of the report of Hyam. I readily accede to the view
that the task of the modern judge in applying the criminal law is rendered
more difficult by the paucity of reliable reports of criminal cases prior to
the establishment of a proper pyramid of criminal appeals. I also accept
the relevance of the fact that prior to Woolmington v. D.P.P. [1935] A.C.
462, the burden of proof was erroneously supposed to be on the defence in
a number of cases where a voluntary act resulting in death had been proved
by the prosecution, and that prior to 1898 criminal courts had never the
advantage of the testimony of the accused. I also genuflect before the
miracles of modern surgery and medicine, though I express some doubt
whether these may not have been offset to some extent by the increased
lethal characteristics of modern weaponry (particularly in the fields of
automatic weaponry, explosives and poisons), and the assistance to
criminality afforded by the automobile, the motorway and international air
transport. I also take leave to doubt whether in the case of injuries to the
skull in particular or indeed really serious bodily harm in general these
advances have made the difference between inflicting serious bodily harm
and endangering life sufficiently striking as to justify judicial legislation on
the scale proposed. But, more important than all this, I confess that I view
with a certain degree of scepticism the opinion expressed on pp.90-93 of
the Hyam report that the age of our ancestors was so much more violent
than our own that we can afford to take a different view of "concepts of what
is right
" and what is wrong that command general acceptance in contemporary
" society ". In the weeks preceding that in which this appeal came before
your Lordships both the Pope and the President of the United States have
been shot in cold blood, a circuit judge has been slain, a police officer has
given evidence of a deliberate shooting of himself which has confined him
to a wheeled chair for life, five soldiers have been blown up on a country
road by a mine containing over a thousand pounds of high explosive, the
pillion passenger has been torn from the back of a motor bicycle and stabbed
to death by total strangers apparently because he was white, and another
youth stabbed, perhaps because he was black, petrol bombs and anti-
personnel weapons have been thrown in the streets of London and Belfast
at the bodies of the security forces, cars have been overturned and set on
fire in Brixton and Bristol, and the Press has carried reports that our own
Sovereign moves about the streets of her own country protected by body-
guards armed with automatic weapons. If I moved a few months back I
could cite the siege of the Iranian embassy and other terrorist sieges where
hostages have been taken by armed men, the shooting in the streets of
London of foreign refugees at the hand of their political opponents, and
many other acts of lawlessness, violence and cruelty. I doubt whether what
seemed clear in 1974, when the Hyam appeal was heard, would have seemed
so obvious seven years later in 1981. Like "public policy", "concepts of




7

" what is right and what is wrong that command general acceptance in
" contemporary society" are difficult horses for the judiciary to ride,
and. where possible, are arguably best left to the legislature to decide. It
must be added that the legislature has been relatively slow to act Commis-
sion after Commission, Committee after Committee have reported both
before and after Sir James Stephen's draft Bill was stillborn after examination
by a Victorian Select Committee of the House of Commons in 1874. Few
of the recommendations of these successive enquiries have exactly coincided
with one another, and fewer still have reached the statute book. One cannot
but feel sympathy with Lord Kilbrandon's plea (Hyam at p.98) for a single,
and simplified, law of homicide especially since the death penalty for murder
has been abolished. But I venture to think that the problem involves difficul-
ties more serious than is supposed. Few civilised countries have identical laws
on the subject of homicide or apply them in the same way. To name only
two broad issues of policy, are we to follow section 5 of the Homicide Act
1957 and categorise certain classes of murder in which the prohibited act
is arbitrarily adjudged to be worse than in others? The fate of section 5
after the abolition of the death penalty, and its history before that, do not
encourage emulation. Or, are we to follow Lord Kilbrandon's inclination
and create a single offence of homicide and recognise that homicides are
infinitely variable in heinousness, and that their heinousness depends very
largely on their motivation, with the result that the judge should have
absolute discretion to impose whatever sentence he considers just from a
conditional discharge to life imprisonment? I can see both difficulty and
danger in this for the judiciary. After conviction of the new offence of
homicide, judges would have to be the judges of fact for themselves, unaided
by any precise jury verdict as to the exact facts found or any guidance from
the legislature as to the appropriate penalty. I doubt whether in practice
they would relish the responsibility with greater enthusiasm than that with
which Parliament would be eager to entrust them with it.

In the meantime we must administer the law as we consider it to be
without either the zeal of the reformer or the unwillingness to admit error
which characterises the reactionary. In my opinion, Vickers was a correct
statement of the law as it was after amendment by the Homicide Act 1957,
and in Smith and Hyam your Lordships were right to endorse Vickers.

Having reached this conclusion, I doubt whether I possess moral or
intellectual agility to discern exactly what I would have done with regard
to the Practice Direction had I reached an opposite view. But I am
impressed by the stance Lord Reid took in Knuller Ltd. v. D.P.P. [1913] A.C.
435 at 455, where he refused to invoke the Practice Direction in support of
his own previous dissent in Shaw v. D.P.P. and I am impressed by the
arguments of Lord Morris of Borth-y-Gest and Lord Simon of Glaisdale in
the same case in favour of caution. Nor can I disregard the fact that had I
reached a different conclusion I should have been saying that between 1957
and the abolition of capital punishment for murder, a number of persons
(including Vickers himself) would have been executed when they ought only
to have been convicted at common law of manslaughter had the trial judge
anticipated my putative decision. Under the express terms of the Practice
Direction stare decisis is still the indispensable foundation of the use by your
Lordships of the appellate jurisdiction of the House and its normal practice.
Especially must this be so in criminal law, where certainty is indeed a con-
dition of its commanding and retaining respect.

In the event, I am spared these conscientious difficulties, and, without
refusing to invoke the Practice Direction, I am able to say with sincerity
that, on the law as it is, and on its merits, the appeal should be dismissed.

Lord Wilberforce

my lords,

I have had the privilege of reading in advance the speech delivered by
the Lord Chancellor. I agree entirely with it.




8

I wish to add to what the noble and learned Lord has said my firm
recognition of the value of his opinion with reference to the issue now
relevant, in the case of Hyam v. D.P.P. [1975] AC 55. Taken together with
R. v. Vickers [1975] 2 Q.B. 664 and the endorsement of that case by this
House in D.P.P. v. Smith [1961] A.C. 290, with the history of the develop-
ment of the law relating to murder over nearly four hundred years, and
with the authority of Stephen, this makes the case for the minority opinions
in Hyam, as statements de lege lata, with respect, unarguable at the present
time. And, furthermore, if it were possible for this House, judicially, to
change the existing law (so as to require an intention to endanger life rather
than an intention to do " grievous bodily harm "), whatever defects the
present law may possess, that particular change would in my opinion be for
the worse, not for the better, in providing a test both uncertain and prac-
tically unworkable. I am happy to see that the Lord Chancellor agrees in this.

I would dismiss the appeal and answer the certified question in the
affirmative.

Lord Simon of Glaisdale

my lords,

I have had the privilege of reading in draft the speech delivered by my
noble and learned friend on the Woolsack. I agree with it; and I would
therefore dismiss the appeal.

Lord Edmund-Davies

my lords,

I gratefully accept everything that the Lord Chancellor has propounded
in his speech which I have had the advantage of reading in draft, and I
venture to add no more than a footnote.

The cases are probably rare where your Lordships' House would think
it right to invoke the Practice Direction (Judicial Precedent) [1966] 1 W.L.R.
1234) notwithstanding the conclusion that a relevant earlier decision had
been correctly arrived at. But that such a power exists is recognised in the
Practice Direction itself, and Miliangos v. George Frank (Textiles) Ltd.
(1976 A.C. 443) is an instance of this House, while not condemning as wrong
a decision it had delivered fifteen years earlier, declining to follow it on the
ground that the instability which had meanwhile overtaken major currencies
was such that, in the words of my noble and learned friend, Lord Wilber-
force, at p.467F, " To change the rule would . . . avoid injustice in the
" present case ".

Even where an earlier decision is not approved of, the Practice Direction
stresses "... the especial need for certainty as to the criminal law ", and in
Reg. v. Knuller Ltd. [1973] A.C. 435 Lord Reid emphasised that—

"... our change of practice in no longer regarding previous decisions
" of this House as absolutely binding does not mean that whenever we
" think that a previous decision was wrong we should reverse it."

The minority dissents of the noble and learned Lords, Lord Diplock and
Lord Kilbrandon, in Hyam v. D.P.P. [1975] AC 55 were based on their
conclusions that the law as to intent in murder had been incorrectly stated
by this House in D.P.P. v. Smith [1961] A.C. 290 at 335, and that exposure
of the error should lead to a quashing of Hyam's conviction for murder. In
the present case, on the other hand, your Lordships have unanimously con-
cluded and now reiterate that the law as to murderous intent was correctly
stated in Reg. v. Vickers [1957] 2 Q.B. 664. Even so, is now the time and
is this House the place to reveal and declare (so as to " avoid injustice ")




9

what ought to be the law and, in the light of that revelation, here and now
to recant from its former adoption of Vickers?

My Lords, I would give a negative answer to the question. I say this
despite the fact that, after much veering of thought over a period of years,
the view I presently favour is that there should be no conviction for murder
unless an intent to kill is established, the wide range of punishment for
manslaughter being fully adequate to deal with all less heinous forms of
homicide. I find it passing strange that a person can be convicted of murder
if death results from, say, his intentional breaking of another's arm, an
action which, while undoubtedly involving the infliction of " really serious
" harm " and, as such, calling for severe punishment, would in most cases
be unlikely to kill. And yet, for the lesser offence of attempted murder,
nothing less than an intent to kill will suffice. But I recognise the force of
the contrary view that the outcome of intentionally inflicting serious harm
can be so unpredictable that anyone prepared to act so wickedly has little
ground for complaint if, where death results, he is convicted and punished
as severely as one who intended to kill.

So there are forceful arguments both ways. And they are arguments of
the greatest public consequence, particularly in these turbulent days when,
as the Lord Chancellor has vividly reminded us, violent crimes have become
commonplace. Resolution of that conflict cannot, in my judgment, be a
matter for your Lordships' House alone. It is a task for none other than
Parliament, as the constitutional organ best fitted to weigh the relevant and
opposing factors. Its solution has already been attempted extra-judicially
on many occasions, but with no real success. My Lords, we can do none
other than wait to see what will emerge when the task is undertaken by the
legislature, as I believe it should be when the time is opportune.

Be that as it may, in respectful and complete concurrence with the Lord
Chancellor, I hold that the direction of Lawson J. in the present case was
impeccable and I would therefore dismiss the appeal.

Lord Bridge of Harwich

my lords,

I have had the advantage of reading in draft the speech of my noble and
learned friend on the Woolsack. I respectfully and unreservedly agree with
it. Accordingly I would answer the certified question in the affirmative and
dismiss the appeal.

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