United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/246




Regina

v.

Hancock and another (Respondents)
(On Appeal from the Court of Appeal (Criminal Division))

JUDGMENT

Die Jovis 27° Februarii 1986

Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Hancock and another, That
the Committee had heard Counsel on Wednesday the 11th and
Thursday the 12th days of December last upon the Petition and
Appeal of the Director of Public Prosecutions of 4-12 Queen
Anne's Gate, London, SW1H 9AZ praying that the matter of the
Orders set forth in the Schedule thereto, namely Orders of
Her Majesty's Court of Appeal (Criminal Division) of 4th
November 1985, might be reviewed before Her Majesty the Queen
in Her Court of Parliament and that the said Orders 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; and Counsel
having been heard on behalf of Reginald Dean Hancock and
Russell Shankland, the Respondents 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 said Orders of Her Majesty's Court of
Appeal (Criminal Division) of 4th November 1985 complained
of in the said Appeal be, and the same are hereby, Affirmed;
That the certified question be answered in the affirmative:
and that the said Petition and Appeal be, and the same is
hereby, dismissed this House: And it is further Ordered,
That the costs of both the Appellant and the Respondents Be
paid out of central funds, pursuant to section 10 of the
Costs in Criminal Cases Act 1973, the amount thereof to be
certified by the Clerk of the Parliaments.

Cler: Parliamentor

Judgment: 27.2.S6

HOUSE OF LORDS

REGINA

v.

HANCOCK AND ANOTHER
(RESPONDENTS)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

Lord Scarman
Lord Keith
of Kinkel
Lord Roskill
Lord Brightman
Lord Griffiths

LORD SCARMAN

My Lords,

In this case the Director of Public Prosecutions appeals
against the decision of the Court of Appeal (Criminal Division)
[1985] 3 W.L.R. 1014 quashing the respondents' convictions of
murder and substituting verdicts of manslaughter. The appeal is
brought to secure a ruling from the House upon the refusal of the
Court of Appeal to accept as sound the guidelines formulated by
this House in a recent case in which the House gave guidance as
to the direction appropriate to be given by the judge to the jury
in a murder trial in which the judge considers it necessary to
direct the jury upon the issue of intent by reference to foresight
of consequences. The case is Reg, v. Moloney [1985] AC 905,
and the guidance was in these terms, p.929 G:

"In the rare cases in which it is necessary to direct a jury
by reference to foresight of consequences, I do not believe
it is necessary for the judge to do more than invite the jury
to consider two questions. First, was death or really serious
injury in a murder case (or whatever relevant consequence
must be proved to have been intended in any other case) a
natural consequence of the defendant's voluntary act?
Secondly, did the defendant foresee that consequence as
being a natural consequence of his act? The jury should
then be told that if they answer yes to both questions it is
a proper inference for them to draw that he intended that
consequence."

In the present case, the trial judge having based his
direction to the jury on the guidance which I have quoted, the two
accused (respondents to this appeal) were convicted of murder.
The Court of Appeal quashed the convictions on the ground that
the judge's guidance may well have misled the jury. The court
refused leave to appeal but certified the following point of general
public importance:

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" Do the questions to be considered by a jury set out in the
speech of Lord Bridge of Harwich in Reg, v. Moloney [1985]
A.C. 905, 929 as a model direction require amplification?"

It will be observed that the questions which it was suggested in
Moloney that the jury should ask themselves refer to a "natural"
consequence, not a "natural and probable" consequence. The
Director now appeals with the leave of the House.

The appeal is of importance for two reasons. First, of
course, there is the need to settle a point of difference between
this House and the Court of Appeal. The Moloney guidance was
intended to be authoritative in the sense that it was given to be
followed by judges in appropriate cases, i.e. those "exceptional"
cases, as the House thought, where the foreseeability of death or
serious bodily harm may be relevant to a decision as to the intent
underlying the act of violence. The House realised and declared,
however, that the guidance was no part of the ratio decidendi in
the case (Lord Bridge of Harwich at [1985] AC 905, 920 F-G).
The guidance was offered as an attempt in a practical way to
clarify and simplify the task of the jury. It was not intended to
prevent judges from expressing in other language, if they should
deem it wise in a particular case, guidance designed to assist the
jury to reach a conclusion on the facts in evidence. The judicial
function exercised from time to time by appellate courts of
offering guidance either for the benefit of a judge exercising a
discretion conferred upon him by law or as to the assistance which
a judge may properly give a jury in reaching a conclusion of fact
can be helpful but does not result in, or establish, though it should
reflect, a rule of law. And, as this case illustrates, there is
always the danger that the inevitable generality of guidelines
intended to cover a class of case may be such as to be
inapplicable or misleading in some cases - usually through an error
of omission.

The dangers inherent in general guidance for the assistance
of juries in determining a question of fact lead me to the second
reason for the importance of the appeal, namely that the cases to
which the guidance was expressly limited by the House in Moloney,
i.e. the "rare cases" in which it is necessary to direct a jury by
reference to foresight of consequences, are unlikely to be so rare
or so exceptional as the House believed. As the House then
recognised, the guidelines as formulated are applicable to cases of
any crime of specific intent, and not merely murder. But further
and disturbingly crimes of violence where the purpose is by open
violence to protest, demonstrate, obstruct, or frighten are on the
increase. Violence is used by some as a means of public
communication. Inevitably there will be casualties: and inevitably
death will on occasions result. If death results, is the perpetrator
of the violent act guilty of murder? It will depend on his intent.
How is the specific intent to kill or to inflict serious harm
proved? Did he foresee the result of his action? Did he foresee
it as probable? Did he foresee it as highly probable? If he did,
is he guilty of murder? How is a jury to weigh up the evidence
and reach a proper conclusion amidst these perplexities? The best
guidance that can be given to a trial judge is to stick to his
traditional function, i.e. to limit his direction to the applicable
rule (or rules) of law, to emphasise the incidence and burden of
proof, to remind the jury that they are the judges of fact, and



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against that background of law to discuss the particular questions
of fact which the jury nave to decide, indicating the inferences
which they may draw ii they think it proper from the facts which
they find established. Should not appellate guidance emphasise the
importance of particular facts and avoid generalisation? This is a
question to be considered. The facts of this case would appear to
indicate an affirmative answer.

On 16 May 1985 at the Crown Court, Cardiff, Reginald
Dean David Hancock and Russell Shankland were convicted of the
murder of Mr. Wilkie. In the dark hours of the early morning of
30 November 1984 Mr. Wilkie was driving his taxi along the Heads
of the Valley Road. As he approached the bridge over the road at
Rhymney he was killed when two lumps of concrete hit his car.
The two lumps, a block and a post, had been dropped from the
bridge as he approached it.

Mr. Wilkie's passenger was a miner going to work. Mr.
Hancock and Mr. Shankland were miners on strike, and strongly
objected to Mr. Wilkie's passenger going to work. That morning
they had collected the block and the post from nearby, had
brought them to the bridge under which the Heads of the Valley
Road runs through a cutting, and had placed them on the parapet
on the side facing towards the Rhymney roundabout. They then
awaited the arrival of a convoy escorting the miner on his way to
work. The convoy approached the bridge at about 5.15 a.m.: it
consisted of a police motor-cycle, a police land-rover, the taxi
driven by Mr. Wilkie, and a police sherpa van. The convoy was
travelling from the Rhymney roundabout towards the bridge in the
nearside lane of the carriageway. Estimates of its speed varied:
it was put somewhere between 30 and 40 m.p.h. As the convoy
neared the bridge, the concrete block struck the taxi's windscreen.
The post struck the carriageway some 4ft. 8ins, from the nearside
verge. Before, however, the post subsided on the ground, it was
hit by the taxi. The taxi skidded out of control, coming to rest
on the embankment. Mr. Wilkie died from the injuries he received
in the wrecking of the taxi by the two lumps of concrete.

The case for the prosecution was that the two concrete
objects were either thrown from the bridge or pushed over its
parapet in the path of the taxi at a time when the taxi could not
avoid being struck by one or both of them. And, as the trial
judge told the jury, the prosecution case could be compressed into
one question and answer, the question being "what else could a
person who pushed or threw such objects have intended but to
cause really serious bodily harm to the occupants of the car?"
The answer in the prosecution's submission was that a person
acting in that way could in the circumstances have intended
nothing less.

The defence was simple enough: that the two men intended
to block the road, to stop the miner going to work, but not to kill
or to do serious bodily harm to anyone. Hancock told Detective
Chief Superintendent Caisley that he did not throw the two pieces
of "masonry" over the bridge but merely "dropped" them. He told
him that he dropped them on the side of the bridge "nearest to
the roundabout where I could see them coming." At a later
interview Hancock admitted "shoving" the block concrete over the
parapet of the bridge, but declared that he believed when he did

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so that he was standing "over the middle [emphasis supplied] lane",
i.e. not over the nearside lane, along which the convoy was
moving. He said that he did not mean to do anyone damage -
"just to frighten him [i.e. the miner going to work] more than
anything." Shankland admitted that he was party to the plan to
obstruct the road but denied that they intended to hurt anyone.
Like Hancock, he emphasised that their plan was to drop the
objects in the middle lane of the carriageway, i.e. clear of the
lane along which the convoy was travelling, and that they believed
that this was what they did.

Hancock and Shankland were prepared to plead guilty to
manslaughter but the Crown decided to pursue the charge of
murder. The issue was ultimately one of intention. Did they (or
either of them) intend to kill or to cause anyone serious bodily-
harm?

The case called for a careful direction by judge to jury as
to the state of mind required by law to be proved to their
satisfaction before they could return a verdict of murder. The
jury would also want his help in weighing up the evidence. The
judge's direction as to the intention required by law was
impeccable. He said:

"If the prosecution has made you satisfied so as to be sure
that Dean Hancock and Russell Shankland agreed that they
would, in concert, push or throw missiles from the bridge,
each having the intention either to kill or to cause really
serious injury, then you will find each of them guilty of
murder as the block was thrown or pushed by Dean Hancock
in pursuance of the agreement.

When he came to help them on the facts, he offered guidance
along the Moloney lines:

"You may think that critical to the resolution of this case
is the question of intent. In determining whether a person
intended to kill or to cause really serious injury, you must
have regard to all of the evidence which has been put
before you, and draw from it such inferences as to you
seem proper and appropriate. You may or may not, for the
purpose of considering what inferences to draw, find it
helpful to ask: Was death or serious injury a natural
consequence of what was done? Did a defendant foresee
that consequence as a natural consequence? That is a
possible question which you may care to ask yourselves. If
you find yourselves not satisfied so as to be sure that there
was an intent to kill or to cause really serious injury, then
it is open to you to return a verdict of not guilty of
murder, but guilty of manslaughter."

The jury was out for five hours. When they returned they
told the judge that they had failed to reach agreement. The judge
now gave them the option of a majority verdict. A few minutes
later he received a note from the jury in these terms:

"Your Lordship,

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With respect, the jury has discussed at great length the
factual aspects of this case and feel, under the
circumstances, confident in dealing with this matter.

However, the precise legal definitions regarding the
committing of murder and manslaughter are causing dissent
because of lack of knowledge, particularly with regard to
intent and foreseeable consequences."

The jury were plainly perplexed. The judge gave them a further
direction but did not go beyond what he had already said in
summing up. If they were puzzled by the way in which the judge
had then dealt with the issue of intent, the second direction would
not have helped them. Their problem was how to relate foresight
to intention - a problem which they did not find solved by asking
themselves the two questions relating to natural consequences and
foresight which the judge had put to them.

In the Court of Appeal Lord Lane C.J. delivered the
judgment of the court. The court found itself driven to the
conclusion that the use by the judge of the Moloney guidelines
may have misled the jury. The guidelines offered the jury no
assistance as to the relevance or weight of the probability factor
in determining whether they should, or could properly, infer from
foresight of a consequence (in this case, of course, death or
serious bodily harm) the intent to bring about that consequence.
This was, in the court's view, a particularly serious omission
because the case law, as Lord Bridge of Harwich in Moloney [1985]
A.C. 905, 925H had recognised, indicated "that the probability of
the consequence taken to have been foreseen must be little short
of overwhelming before it will suffice to establish the necessary
intent." In the court's view the judge's failure to explain the
factor of probability was because he faithfully followed Moloney;
"he was unwittingly led into misdirecting the jury by reason of the
way in which the guidelines in Moloney were expressed:" [1985] 3
W.L.R. 1014, 1018H.

The question for the House is, therefore, whether the
Moloney guidelines are sound. In Moloney's case the ratio
decidendi was that the judge never properly put to the jury the
defence, namely that the accused was unaware that the gun was
pointing at his stepfather. The House, however, held it necessary
in view of the history of confusion in this branch of the law to
attempt to clarify the law relating to the establishment of the
mental element necessary to constitute the crime of murder and
to lay down guidelines for assisting juries to determine in what
circumstances it is proper to infer intent from foresight. The
House certainly clarified the law. First, the House cleared away
the confusions which had obscured the law during the last 25 years
laying down authoritatively that the mental element in murder is a
specific intent, the intent to kill or to inflict serious bodily harm.
Nothing less suffices: and the jury must be sure that the intent
existed when the act was done which resulted in death before they
can return a verdict of murder.

Secondly, the House made it absolutely clear that foresight
of consequences is no more than evidence of the existence of the
intent; it must be considered, and its weight assessed, together
with all the evidence in the case. Foresight does not necessarily

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imply the existence of intention, though it may be a fact from
which when considered with all the other evidence a jury may-
think it right to infer the necessary intent. Lord Hailsham of St.
Marylebone L.C. put the point succinctly and powerfully in his
speech in Moloney [1983] A.C. 905, 913 E-F:

"I conclude with the pious hope that your Lordships will not
again have to decide that foresight and foreseeability are
not the same thing as intention although either may give
rise to an irresistible inference of such, and that matters
which are essentially to be treated as matters of inference
for a jury as to a subjective state of mind will not once
again be erected into a legal presumption. They should
remain, what they always should have been, part of the law
of evidence and inference to be left to the jury after a
proper direction as to their weight, and not part of the
substantive law."

Thirdly, the House emphasised that the probability of the
result of an act is an important matter for the jury to consider
and can be critical in their determining whether the result was
intended.

These three propositions were made abundantly clear by
Lord Bridge of Harwich. His was the leading speech and received
the assent of their other Lordships, Lord Hailsham of St.
Marylebone L.C., Lord Fraser of Tullybelton, Lord Edmund-Davies,
and Lord Keith of Kinkel. His speech has laid to rest ghosts
which had haunted the case law ever since the unhappy decision of
your Lordships' House in Reg, v. Smith [1961] A.C. 290 and which
were given fresh vigour by the interpretation put by some upon
the speeches of members of this House in Reg, v. Hyam [1975]
A.C. 55.

It is only when Lord Bridge of Harwich turned to the task
of formulating guidelines that difficulty arises. It is said by the
Court of Appeal that the guidelines by omitting any express
reference to probability are ambiguous and may well lead a jury to
a wrong conclusion. The omission was deliberate. Lord Bridge
omitted the adjective "probable" from the time-honoured formula
"foresight of the natural and probable consequences of his acts"
because he thought that "if a consequence is natural, it is really
otiose to speak of it as also being probable," [1985] AC 905, 929
B. But is it?

Lord Bridge of Harwich did not deny the importance of
probability. He put it thus, p.925H:

"But looking on their facts at the decided cases where a
crime of specific intent was under consideration, including
Reg, v. Hyam [1975] AC 55 itself, they suggest to me that
the probability of the consequence taken to have been
foreseen must be little short of overwhelming before it will
suffice to establish the necessary intent."

In his discussion of the relationship between foresight and
intention, Lord Bridge of Harwich reviewed the case law since
the passing of the Homicide Act 1957 and concluded at p. 928 F
that

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"foresight of consequences, as an element bearing on the
issue of intention in murder, or indeed any other crime of
specific intent, belongs, not to the substantive law, but to
the law of evidence."

He referred to the rule of evidence that a man is presumed to
intend the natural and probable consequences of his acts, and went
on to observe that the House of Lords in Smith's case [1961] A.C.
290 had treated the presumption as irrebuttable, but that
Parliament intervened by section 8 of the Criminal Justice Act
1967 to return the law to the path from which it had been
diverted, leaving the presumption as no more than an inference
open to the jury to draw if in all the circumstances it appears to
them proper to draw it.

Yet he omitted any reference in his guidelines to
probability. He did so because he included probability in the
meaning which he attributed to "natural." My Lords, I very much
doubt whether a jury without further explanation would think that
"probable" added nothing to "natural." I agree with the Court of
Appeal that the probability of a consequence is a factor of
sufficient importance to be drawn specifically to the attention of
the jury and to be explained. In a murder case where it is
necessary to direct a jury on the issue of intent by reference to
foresight of consequences the probability of death or serious injury
resulting from the act done may be critically important. Its
importance will depend on the degree of probability: if the
likelihood that death or serious injury will result is high, the
probability of that result may, as Lord Bridge of Harwich noted
and the Lord Chief Justice emphasised, be seen as overwhelming
evidence of the existence of the intent to kill or injure. Failure
to explain the relevance of probability may, therefore, mislead a
jury into thinking that it is of little or no importance and into
concentrating exclusively on the causal link between the act and
its consequence. In framing his guidelines Lord Bridge of Harwich
emphasised [1985] AC 905, 929G , that he did not believe it
necessary to do more than to invite the jury to consider his two
questions. Neither question makes any reference (beyond the use
of the word "natural") to probability. I am not surprised that
when in this case the judge faithfully followed this guidance the
jury found themselves perplexed and unsure. In my judgment,
therefore, the Moloney guidelines as they stand are unsafe and
misleading. They require a reference to probability. They also
require an explanation that the greater the probability of a
consequence the more likely it is that the consequence was
foreseen and that if that consequence was foreseen the greater the
probability is that that consequence was also intended. But juries
also require to be reminded that the decision is theirs to be
reached upon a consideration of all the evidence.

Accordingly, I accept the view of the Court of Appeal that
the Moloney guidelines are defective. I am, however, not
persuaded that guidelines of general application, albeit within a
limited class of case, are wise or desirable. The Lord Chief
Justice formulated in this case guidelines for the assistance of
juries but for the reason which follows, I would not advise their
use by trial judges when summing up to a jury.

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I fear that their elaborate structure may well create
difficulty. Juries are not chosen for their understanding of a
logical and phased process leading by question and answer to a
conclusion but are expected to exercise practical common sense.
They want help on the practical problems encountered in
evaluating the evidence of a particular case and reaching a
conclusion. It is better, I suggest, notwithstanding my respect for
the comprehensive formulation of the Court of Appeal's guidelines,
that the trial judge should follow the traditional course of a
summing up. He must explain the nature of the offence charged,
give directions as to the law applicable to the particular facts of
the case, explain the incidence and burden of proof, put both
sides' cases making especially sure that the defence is put; he
should offer help in understanding and weighing up all the evidence
and should make certain that the jury understand that whereas the
law is for him the facts are for them to decide. Guidelines, if
given, are not to be treated as rules of law but as a guide
indicating the sort of approach the jury may properly adopt to the
evidence when coming to their decision on the facts.

In a case where foresight of a consequence is part of the
evidence supporting a prosecution submission that the accused
intended the consequence, the judge, if he thinks some general
observations would help the jury, could well, having in mind
section 8 of the Criminal Justice Act 1967, emphasise that the
probability, however high, of a consequence is only a factor,
though it may in some cases be a very significant factor, to be
considered with all the other evidence in determining whether the
accused intended to bring it about. The distinction between the
offence and the evidence relied on to prove it is vital. Lord
Bridge's speech in Moloney made the distinction crystal clear: it
would be a disservice to the law to allow his guidelines to mislead
a jury into overlooking it.

For these reasons I would hold that the Moloney guidelines
are defective and should not be used as they stand without further
explanation. The laying down of guidelines for use in directing
juries in cases of complexity is a function which can be usefully
exercised by the Court of Appeal. But it should be done
sparingly, and limited to cases of real difficulty. If it is done,
the guidelines should avoid generalisation so far as is possible and
encourage the jury to exercise their common sense in reaching
what is their decision on the facts. Guidelines are not rules of
law: judges should not think that they must use them. A judge's
duty is to direct the jury in law and to help them upon the
particular facts of the case.

Accordingly, I would answer the certified question in the
affirmative and would dismiss the appeal. I would propose that
the costs of all parties be paid out of central funds.

LORD KEITH OF KINKEL

My Lords,

I have had the benefit of reading in advance the speech of
my noble and learned friend Lord Scarman. I agree with it, and
for the reasons he gives would dismiss the appeal.

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LORD ROSKILL

My Lords,

I have had the advantage of reading in draft the speech
delivered by noble and learned friend Lord Scarman. For the
reasons he gives I too would dismiss this appeal.

LORD BRIGHTMAN

My Lords,

For the reasons given in the speech of my noble and learned
friend Lord Scarman, I too would dismiss this appeal.

LORD GRIFFITHS

My Lords,

I have had the advantage of reading in draft the speech
delivered by my noble and learned friend Lord Scarman. For the
reasons he gives I too would dismiss this appeal.

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