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[1961] A.C. 290

[HOUSE OF LORDS.]
DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT; AND SMITH RESPONDENT.
1960 May 9, 10, Byrne, Sachs and Winn JJ. VISCOUNT KILMUIR L.C., LORD
18. GODDARD, LORD TUCKER, LORD DENNING and LORD PARKER
1960 June 27, 28, OF WADDINGTON.
29, 30;
July 1, 28.
Crime Homicide — Intention to kill or cause grievous bodily harm — Presumption of

intention — Extent of application — Homicide Act, 1957 (5 & 6 Eliz. 2, c. 11), ss. 1
(1), 5. —
Presumption — Intention — Natural and probable consequence of acts — Homicide. —
The respondent was driving a car in the back of which were some sacks of scaffolding
clips which had been stolen. A police constable, noticing the sacks, told him to draw in to
the kerb, but instead the respondent accelerated. The constable clung on to the side of
the car, which pursued an erratic course, but he was finally shaken off and fell in front of
another car, receiving fatal injuries. The respondent did not stop but drove on some 200
yards and dumped the stolen property. He then returned, and there was evidence that on
being told that the constable was dead he said that he knew the constable personally but
had become frightened at the constable's actions and “didn't want him to find the gear.”
The respondent was charged with capital murder. In his summing-up the judge said to the
jury: “If you are satisfied that … he must as a reasonable man have contemplated that
grievous bodily harm was likely to result to that officer … and that such harm did happen
and the officer died in consequence, then the accused is guilty of capital murder. … On the
other hand, if you are not satisfied that he intended to inflict grievous bodily harm upon
the officer — in other words, if you think he could not as a reasonable man have
contemplated that grievous bodily harm would result to the officer in consequence of his
actions — well, then, the verdict would be guilty of manslaughter.” The respondent was
convicted of murder:—
Held , that there was no misdirection by the trial judge.
It is immaterial what the accused in fact contemplated as the probable result of his
actions, provided he is in law responsible for them in that he is capable of forming an
intent, is not insane within the M'Naghten Rules and cannot establish diminished
responsibility. On that assumption, the sole question is whether the unlawful and
voluntary act was of such a kind that grievous bodily harm was the natural and probable
result, and the only test of this is what the ordinary responsible man would, in all the
circumstances of the case, have contemplated as the natural and probable result (post, p.
327 ).
Once the accused's knowledge of the circumstances and nature of his acts has been
ascertained, the only thing that can rebut the presumption that he intends the natural and
probable consequences of those acts is proof of incapacity to form an intent, insanity or
diminished responsibility (post, p. 331 ). The test of the reasonable man, properly
understood, is a simpler criterion than that of the “presumption of law” and contains all
the necessary ingredients of malice aforethought (post, p. 333 ).
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Dictum of Lord Goddard C.J. in Rex v. Steane [1947] K.B. 997, 1004; 63 T.L.R. 403;
[1947] 1 All E.R. 813; 32 Cr.App.R. 61, C.C.A. explained.
Reg. v. Ward [1956] 1 Q.B. 351; [1956] 2 W.L.R. 423; [1956] 1 All E.R. 565; 40
Cr.App.R. 1, C.C.A. approved.
There is no warrant for drawing any distinction between the case where serious harm is
“certain” to result and that where it is “likely” to result. The true question in each case is
whether there is a real probability of grievous bodily harm (post, p. 333 ).
The expression “grievous bodily harm” should bear its ordinary and natural meaning of
“really serious” harm (post, p. 335 ).
Section 1 (1) of the Homicide Act, 1957 , has not abolished malice constituted by a
proved intention to inflict grievous bodily harm.
Reg. v. Vickers [1957] 2 Q.B. 664; [1957] 3 W.L.R. 326; [1957] 2 All E.R. 741; 41
Cr.App.R. 189, C.C.A. approved.
Decision of the Court of Criminal Appeal (sub nom. Reg. v. Smith ), post, p. 297 ;
[1960] 3 W.L.R. 92; [1960] 2 All E.R. 451 reversed.
The respondent, Jim Smith, was convicted at the Central Criminal Court on April 7,
1960, on a charge that on March 2, 1960, he murdered Leslie Edward Vincent Meehan, a
police constable acting in the execution of his duty. The constable had told the respondent
to pull his car in to the side of the road so that he could question him, but instead of
doing so the respondent accelerated causing the death of the constable. The ground of his
appeal to the Court of Criminal Appeal was that Donovan J. misdirected the jury as to the
application of the rule that a person is presumed to intend the natural and probable
consequences of his acts.
The facts stated by Viscount Kilmuir L.C. were as follows: At about 7.30 p.m. on March
2, 1960, the respondent, accompanied by a man named Artus, was driving a Ford Prefect
motor-car through Woolwich. In the boot and the back of the car were sacks containing
scaffolding clips that they had just stolen. The car was stopped in Beresford Square by the
police officer on point duty in the normal course of traffic control and, while it was so
stopped, P.C. Meehan, who was acquainted with the respondent, came to the driver's
window and spoke to him. No doubt as a result of what P.C. Meehan saw in the back of
the car he told the respondent when the traffic was released to draw in to his near-side.
The respondent began to do so and P.C. Meehan walked beside the car. Suddenly,
however, the respondent accelerated along Plumstead Road and P.C. Meehan began to run
with the car, shouting to the officer on point duty to get on to the police station. Despite
the fact that the respondent's car had no running board, P.C. Meehan succeeded in
hanging on and never let go until some 130 yards up Plumstead Road when he was thrown
off the car and under a bubble car coming in the opposite direction, suffering a crushed
skull and other injuries from which he died.
What happened during the time the car travelled that 130 yards was the subject of
considerable evidence. The police officer on traffic duty, P.C. Baker, said that he last saw
the car doing what he thought was about 20 miles per hour with P.C. Meehan running and
holding on to it. Mr. Doran, a bus driver, whose vehicle had also been held up in Beresford
Square, said that the respondent's car suddenly accelerated with P.C. Meehan holding on
to it; that it started to zig-zag, and that the police officer appeared to be thrown across
the bonnet of the car. Mr. Lynch, who was standing in the centre of the square, said that
the car suddenly accelerated, zig-zagging all the time, the police officer holding on, his
feet hanging on the ground; that it kept on accelerating and he thought he saw the right
hand of someone in the car trying to push the officer off. He thought that the car reached
a speed of 30–60 miles per hour.
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Four cars were coming in the opposite direction. The driver of the first car, a Mr. Gill,
said that the respondent's car appeared to come at him at a fast to medium speed. There
appeared to be someone on the car either falling from the driver's seat or picked up on the
bonnet. He felt a slight bump on the rear of his car but sufficient to make him stop. The
driver of the second car, a Mr. Mills, said that he saw the respondent's car gathering speed
and swerving towards him. The side of his car was struck. The driver of the third car, a Mr.
Eldridge, thought that the respondent's car was travelling at about 40–50 miles per hour;
he saw what he could only describe as an object hanging on below the driver's window. His
car was struck violently, the offside front mudguard being dented in. Having regard to the
fact that there were no marks on the respondent's car, the inevitable conclusion was that
the contact of all three cars was with P.C. Meehan. Mr. Rollingson, the driver of the fourth
car, a bubble car, said that the respondent's car was going very fast and swerving. He saw
something coming towards him; there was a terrific crash and he stopped and P.C. Meehan
was underneath his car. The respondent's car, he said, went tearing up the road.
Mr. Heywood, a cyclist, who was ahead of the respondent's car and was passed by the
car just after P.C. Meehan was thrown off, described the car as going fast. Finally, Artus,
the passenger in the respondent's car, described how the officer was holding on to the
door by the driver's window with his left hand and was banging the windscreen with his
right hand. He said that the respondent said: “Let go, Bert.”
After P.C. Meehan had been thrown off, the respondent drove his car a little further up
Plumstead Road and into a side turning where he and Artus threw the sacks of clips out of
the car. Artus then went off but the respondent returned to the scene. According to P.C.
Weatherill the respondent first asked: “Is he dead?” and then, on being told that it was
believed so, he said: “I knew the man. I wouldn't do that for the world. I only wanted to
shake him off.” The respondent, however, denied that he had spoken the last few words.
The respondent was taken to the police station. On being arrested and cautioned he said:
“I didn't mean to kill him, but I didn't want him to find the gear.” The respondent then
made and signed a statement in which, inter alia, he said: “P.C. Meehan jumped on the
side of the car and I got frightened. I don't know what I got frightened about. I don't think
I thought of the stolen gear I had on board. I don't know what I did next in respect of
driving the car. All I know is when he fell off he must have been hurt. I knew he fell off,
and I then took a turning off the Plumstead Road. I drove up this turning some way and
turned right down a back street. I stopped the car in this back street, as George wanted to
get out of it. I got out too, and chucked the gear out of the car on to the pavement. I got
rid of it, because I was scared the police would find it in my motor.”
The respondent gave evidence at the trial. He said that when P.C. Meehan jumped on
the side of the car his foot went down on the accelerator and he was scared. “I was scared
very much. I was very much frightened.” He agreed that he did not take his foot off the
accelerator. “I never thought of it, sir. I was frightened. I was up in the traffic. I never
thought of it. It happened too quick.” Asked why he did not take his foot off the
accelerator he said: “I would have done, but when he jumped on the side he took my mind
off what I was doing. When he jumped on I was frightened. I was up the road before it
happened. It happened in a matter of seconds.” He further said that when going up
Plumstead Road he didn't realise that the officer was still hanging on to the car. Asked
about his car swerving he said: “My motor was swaying because of the load on the back.”
The hearing in the Court of Criminal Appeal (Byrne, Sachs and Winn JJ.) was on May 9
and 10, 1960.
Edward Clarke Q.C. and Audrey Jennings for the appellant. Donovan J.'s direction on the
intent to cause grievous bodily harm was wrong. First, the intent is subjective and the
mind of the accused is all important. The standard of what a reasonable man must have
intended is objective and, although it has crept into the law, it is wrong. Secondly, an
intent to cause grievous bodily harm resulting in death cannot be murder. To say that a
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man who gives another a hard punch on the nose or a black eye, with the result that the
other falls back, strikes his head and dies, is guilty of murder is contrary to all the ideas of
the ordinary man. The proper test of murder is malice aforethought: either the intent to
kill or the intent to do a dangerous act which the accused realises is likely to kill.
[Reference was made to Reg. v. Vickers 1 and to Kenny's Outlines of the Criminal Law,
16th ed., paras. 107–108, and 17th ed.]
The standard of the reasonable man is wrong. [Reference was made to Reg. v. Vamplew
2
; Reg. v. Ward 3 ; Reg. v. Doherty, 4 and Reg. v. Serné. 5 ] The proper test is what did the
accused intend. Rex v. Lumley 6 is against this proposition, but that was a special case
and is not an authority to be followed. [Reference was made to Rex v. Appleby. 7 ] Rex v.
Hedley 8 supports my proposition. [Reference was made to Rex v. Steane 9 ; Reg. v. Grant
10 ; Reg. v. Lenchitsky, 11 and Russell on Crime, 11th ed., pp. 565–566.] Reg. v. Ward 12
was wrongly decided: there the court said that the test of the reasonable man was right.
But there was a contradiction in the summing-up because it was said that if death was not
contemplated then the case was one of manslaughter. Further, the definition of a
reasonable man is one who cannot plead insanity. Anyone charged with murder who does
not plead insanity is a reasonable man and the adjective reasonable is therefore otiose. It
would be simpler to say “the accused.” [Reference was made to Russell on Crime, 11th
ed., p. 568.] Reg. v. Vickers 13 was rightly decided on this point in contradistinction to
Reg. v. Ward. 14 The standard of the reasonable man is misleading. It is only used in
Lumley's case15 and Ward's case16 and is not to be followed. The proper direction to give
to a jury would be one on the lines of Reg. v. Doherty 17 or Lenchitsky's case18 or Reg. v.
Vickers. 19
[SACHS J. Assuming that Reg. v. Ward 20 was correctly decided, what do you say about
the intention to cause grievous bodily harm?]
Section 1 (1) of the Homicide Act, 1957 , has abolished malice constituted by a proved
intention to do grievous bodily harm. Reg. v. Vickers 21 is wrong on this point. An intention
to do grievous bodily harm is not enough. The proper test is whether the accused has done
a dangerous act which he knows may cause death. [Reference was made to Russell on
Crime, 11th ed., p. 572; Reg. v. Cunningham 22 ; Reg. v. Horsey, 23 and [1954] Crim.L.R.
661.]
Mervyn Griffith-Jones, Alastair Morton and Patrick Whelon for the Crown. Assuming that
either an intent to kill or an intent to cause grievous bodily harm is sufficient, the only
way in which the question of what a reasonable man contemplates arises is to discover
what the appellant in fact had in mind. With a proper direction as to the onus of proof,
there is nothing wrong with that as a test. The presumption is that a man intends the
natural and probable consequences of his acts. From that an intent can be inferred. Here
was a man driving along a road. He was a reasonable man. He must have contemplated
causing grievous bodily harm. [Reference was made to Reg. v. Lenchitsky 24 ; Rex v.
Lumley, 25 and Reg. v. Ward. 26 ] The subjective test is only applicable where the accused
is not a reasonable man and that test cannot apply. [Reference was made to Rex v.
Steane. 27 ]
[SACHS J. Did the summing-up deal with the question whether the defendant was in a
panic at the time?]
The wording of this summing-up does not differ materially from that in Reg. v. Ward. 28
There the wording used was: “Whether the accused, when he did what he did, must have
contemplated that death or some serious injury would result from his act. If you are
satisfied with that, you will find him guilty of murder.”
[WINN J. The wording there is “must have known … would result.” Is it the same thing
to say that a man “must have known … was likely to result”?]
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If by “likely” one means that something is a probable consequence, yes. Once the jury
found that the appellant in this case intended to dislodge the officer, it follows that he
must have known that harm was almost bound to result.
[SACHS J. Does not the jury need to be carefully directed as to the difference between
a presumption and an inference? And the difference between “must” and “might”?]
[BYRNE J. Do you agree that a man in a panic might behave differently from a man not
in a panic?]
Panic is no defence. It does not go to intent.
[SACHS J. In Lang v. Lang 29 there is a citation to the effect that the presumption that
a man intends the reasonable and probable consequences of his actions is not an
inference that must be drawn, but which may be.]
I accept that the principle as stated would be applicable in the criminal law.
Clarke Q.C. was not called upon to reply.
May 10. The court allowed the appeal, substituting a verdict of manslaughter for that of
capital murder and imposing a sentence of 10 years' imprisonment. The court reserved its
reasons.
May 18. BYRNE J. read the following judgment of the court: The court has already
announced its decision in this case. We now proceed to give our reasons. The appellant
was convicted at the Central Criminal Court of the capital murder of P.C. Meehan. The
facts were as follows: At about 7.30 p.m. on March 2, 1960, the appellant, aged 26, was
driving his car, in the back of which were some sacks of scaffolding clips that he and
another man, a passenger in that car, had just stolen. When they reached Beresford
Square, P.C. Baker, on point duty, stopped in the normal course of traffic control the flow
of vehicles in the square, and the appellant happened to be at the head of a line which
came to a halt. Whilst he was thus stationary another policeman, P.C. Meehan, with whom
the appellant had for some time been on quite friendly terms, came round to the driver's
window and spoke to the appellant. On noticing what was in the back of the car he told
the appellant to pull over slowly to the nearby kerb and also told P.C. Baker to get on to
the police station.
The appellant, however, instead of drawing in to the kerb, made off at an increasing
pace down Plumstead Road. P.C. Meehan got part of his arm inside the open window on
the driver's side. and after first walking and then running continued bravely to hang on as
the car gathered speed. Whether he was throughout clinging to the off-side of the car or
whether at one stage he was actually on the bonnet, is one of the things of which
witnesses gave varying accounts; but the bulk of the evidence was to the effect that he
remained at all times on the off-side. As the appellant's car went up the Plumstead Road,
which is 27 feet 6 inches wide, it undoubtedly pursued an erratic course; of four drivers of
successive cars coming in the opposite direction three referred to the appellant's car as
coming “at them,” and spoke of having received what they referred to as bangs or bumps.
Then P.C. Meehan was shaken off and fell in front of the fourth car, receiving fatal injuries
to his head.
There was also the evidence of a pedestrian who at the material time was behind the
appellant's car. He spoke of an attempt by the appellant to push the police officer off, but
did not indicate whether that was at a stage when the car was moving slowly or when it
was going fast. Moreover, he appeared in any event not to be sure as to what he saw. It
is thus not necessary to refer again to his testimony.
The distance from the point in Beresford Square where the appellant's car first started
moving at a pace which could have swept P.C. Meehan off his feet to the spot where he
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was killed was about 100 yards. The time taken to cover that distance was probably of the
order of 10 seconds. There was no evidence that P.C. Meehan suffered any serious — or,
indeed, any specific — injury from any bump before he was run over by the fourth car.
The appellant did not stop when P.C. Meehan fell from the car, but went on for some
200 yards to a place where he dumped the stolen sacks of clips. Then he at once returned
in the car to Beresford Square. Upon P.C. Baker informing him that P.C. Meehan was dead,
he said: “I am the driver of the car he was hanging on to”; and then to another police
officer he said: “I knew the man. I wouldn't do that for the world. I only wanted to shake
him off.” A little later he made further statements which included reference to the fact
that he got frightened at P.C. Meehan's actions.
At the trial the appellant attempted by his evidence to put forward a case that he had
put his foot on the accelerator in mistake for the brake, and that he did not realise that
P.C. Meehan was hanging on to his car. In addition he said several times that he was
“scared” and “frightened,” and, in effect, did not realise what he was doing. As regards the
course of his car he laid emphasis on the weight of the sacks of clips as possibly affecting
the steering, and throughout he maintained emphatically that he had no intention of
either causing P.C. Meehan any severe injury or of killing him. He referred to the fact that
P.C. Meehan knew him quite well and was aware of his address.
One of the defences raised by this evidence was that the death of the police officer in
the above circumstances was a mere accident, and a considerable portion of the summing-
up was devoted to this point. However, as was to be expected, the jury rejected the
appellant's evidence in relation to his foot having got on to the wrong pedal, and as to his
not knowing that the police officer was hanging on to the car. Once mere accident was
excluded, there was only room for a verdict either of capital murder or of manslaughter,
and the jury returned a verdict of capital murder.
On this appeal no submission has been made that there could have been in the
circumstances an acquittal on the basis of there having been a mere accident. Accordingly,
the sole question raised by the appeal is whether a verdict of manslaughter should be
substituted for that of capital murder.
At no stage did the prosecution submit that there had been established against the
appellant an actual intent to kill P.C. Meehan; and the judge, immediately after dealing
with the defence of mere accident, stated that as regards the rest of his summing-up he
proposed to assume that the jury would not find that the appellant deliberately intended
to kill the police officer. Thus the issue for the jury upon the charge of murder was
whether the prosecution had established that the appellant intended to cause the police
officer grievous bodily harm: see Reg. v. Vickers. 30 On that issue the prosecution's case
was that the above intention ought to be inferred from the appellant's conduct, whilst the
case for the defence was that the appellant in fact had no such intent and that, in any
event, the intent was not established as an inference from the facts.
In the above circumstances it fell to the judge to direct the jury on the meaning and
application to the particular facts of the maxim on which the prosecution had relied and
which is often stated in the following terms: “A man must be taken (or presumed) to
intend the natural consequences of his acts.” This is a presumption to which the judge at
the outset referred in the following terms: “The intention with which a man did something
can usually be determined by a jury only by inference from the surrounding circumstances,
including the presumption of law that a man intends the natural and probable
consequences of his acts.” Neither at that stage nor later was the jury given any
explanation in general terms of the meaning or effect of the word “presumption” or that
any such presumption may be rebutted.
Whatever may have been the position last century when prisoners could not go into the
witness box and the distinction between presumptions of law and presumptions of fact
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was not so well defined, it is now clear, as was naturally conceded by Mr. Griffith-Jones,
that the presumption embodied in the above maxim is not an irrebuttable presumption of
law.
The law on this point as it stands today is that this presumption of intention means
this: that, as a man is usually able to foresee what are the natural consequences of his
acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But,
while that is an inference which may be drawn, and on the facts in certain circumstances
must inevitably be drawn, yet if on all the facts of the particular case it is not the correct
inference, then it should not be drawn.
The law on this topic was particularly illuminated by the following passage in the
considered judgment of this court delivered by Lord Goddard C.J., sitting with Atkinson and
Cassels JJ. in Rex v. Steane. 31 Lord Goddard said32 : “No doubt if the prosecution prove an
act the natural consequence of which would be a certain result and no evidence or
explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty
of doing the act with the intent alleged, but if on the totality of the evidence there is
room for more than one view as to the intent of the prisoner, the jury should be directed
that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a
review of the whole evidence, they either think that the intent did not exist or they are
left in doubt as to the intent, the prisoner is entitled to be acquitted.”
As regards the various other authorities cited by Mr. Clarke on this point, care must, of
course, be taken to consider the phrases therein used in relation to the particular facts.
The strength of any presumption obviously varies according to particular facts, and this
may entail considerable adjustments in the practical terms of the charge to the jury. Thus,
there is a class of cases where the act of the accused must obviously cause grievous
bodily harm, as where a blow with a sharp and heavy hatchet is deliberately aimed at and
strikes the victim. In another class are cases where a reasonable man would realise that
his act might cause grievous bodily harm but the degree of the probability or possibility of
that type of harm resulting varies according to the facts of the case.
In the first class of case where the harm must obviously result from the act and there is
no evidence which could be regarded as rebutting the presumption, a direction to the jury
that “a man must be presumed to intend the natural consequences of his act” could be
apposite, in the other cases it would not.
In the other cases the charge to the jury will, of course, vary according to the facts
(including the degree of likelihood of grievous bodily harm being caused) but the essence
of the matter remains that whilst the accused may be presumed to have intended the
natural consequences of his act, the question is: “Did he actually intend them?”
Having regard to these considerations Reg. v. Ward 33 appears to represent the high-
water mark of the application of the presumption; and indeed, in this court, Mr. Clarke
submitted that the decision was inconsistent with the general stream of authority, That
was a case in which the court by a judgment delivered by Lord Goddard C.J. upheld the
verdict of the jury on the footing that where any sane man “must have known that what he
was doing would cause at least grievous bodily harm, and the death is the result of that
grievous bodily harm, then that amounts to murder in law. …” In other words, the harm
was certain, there was in the view of the court no evidence which could rebut knowledge of
that certainty, and the inference of intention was inevitable. We think that the sentence
which we have quoted contains the true ratio of the decision in that case; in so far as the
summing-up which was thereby approved appears at any point to depart from that ratio, it
is in our opinion to be regarded as justified by the particular facts of that case.
That the above judgment ought not to be regarded as deciding that an irrebuttable
presumption of law arose in cases where there was no such certainty is shown by Rex v.
Steane 34 in 1947. (See also Rex v. Lenchitsky, 35 in which the jury had been instructed to
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take into account the actual intention of a feebleminded accused.)
The final question for the jury must always be whether on the facts as a whole an
actual intent to do grievous bodily harm was established, remembering, of course, that
intent and desire are different things and that once it is proved that an accused man
knows that a result is certain the fact that he does not desire that result is irrelevant.
Once mere accident was excluded, the present case became one in which the degree of
likelihood of serious injury to the police officer depended on which of the not always
consistent versions of the facts given by witnesses for the prosecution was accepted. It
was one in which it could not be said that there was a certainty that such injury would
result; and it was one in which there always remained the question whether the appellant
really did during the relevant ten seconds realise what was the degree of likelihood of
serious injury. If the jury took the view that the appellant deliberately tried to drive the
body of the police officer against oncoming cars, the obvious inference was open to them
that the appellant intended serious injury to result; if, however, they concluded he merely
swerved or zigzagged to shake off that officer, or if they concluded that for any reason he
may not have realised the degree of danger to which he was exposing the police officer, a
different situation would arise with regard to the inferences to be drawn. In the former
case the jury might well have felt they were dealing with consequences that were certain;
in the latter only with degrees of likelihood.
In such circumstances it was essential, once the language of presumption had been
used, to make it clear that a presumption can be rebutted; to explain in broad language
what view of the facts might constitute a rebuttal; to point out the distinction between
consequences that must and consequences that might result; and in the end to make it
plain that the overall burden of proving actual intent continued to rest on the prosecution.
When one looks at the summing-up which followed the direction as to the defence of
mere accident, it would appear that the judge framed his charge to the jury upon the basis
of various passages in Reg. v. Ward, 36 one at least of which appears to treat results
which are likely as being on the same footing as results which are certain. In so doing he
may well have been influenced by the request of Mr. Clarke at the trial to base his
directions on that particular judgment. The result, however, was that when he came to the
concluding passages of the summing-up he spoke of the jury being entitled to impute
guilty intent if a reasonable man would have considered results “likely” or such as “might
well” flow from the acts done, and spoke thus, in our opinion, without sufficient reference
to the fact that those matters provided no more than a pointer towards the solution of the
ultimate question: what was the actual state of mind of the appellant? Thus, phrases
were used in this vital portion of the summing-up which, taken as a whole, we feel might
have led the jury to consider that they were entitled to infer guilty intent from what a
reasonable man would think to be likely, without sufficient warning that if on the facts as
a whole they were left in reasonable doubt whether the appellant did intend to do
grievous bodily harm, then it was for the jury to acquit on the charge of capital murder.
The final passages included the phrases “If you are satisfied that … he must as a
reasonable man have contemplated that grievous bodily harm was likely to result … then
the accused is guilty of capital murder.”
Accordingly, it does not seem to us safe to assume that the jury fully understood the
position as regards the relevant presumption. We have for these reasons come to the
conclusion that the verdict of capital murder should not stand and that a verdict of
manslaughter should be substituted.
J. D. P.
The Crown appealed to the House of Lords.
Sir Reginald Manningham-Buller Q.C., A.-G., Mervyn Griffith-Jones and S. A. Morton for
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the appellant. If the jury were satisfied that Smith as a reasonable man must have
contemplated that grievous bodily harm was likely to ensue from his act and death did
ensue, they were bound to find him guilty of capital murder.
Before the Court of Criminal appeal two points of law were submitted on behalf of
Smith: (1) that the test of what he must have contemplated is a subjective one, and (2)
that an intent to do grievous bodily harm is not enough to constitute murder if death
ensues and that Reg. v. Vickers 37 was wrongly decided.
The court in substance accepted the first submission and inferentially rejected the
second.
It had been argued on behalf of Smith (a) that Donovan J. was wrong in directing the
jury that if a reasonable man would realise that shaking a man off a car when it was
accelerating in a main street with other traffic about might well cause him serious harm,
then they would be entitled to impute to Smith an intent to do serious harm; (b) that
Donovan J. was wrong in telling the jury that if they were satisfied that Smith as a
reasonable man must have contemplated that grievous bodily harm was likely to result
from his act and that such harm did happen and the constable died in consequence, Smith
was guilty of capital murder; (c) that the test of the question of the existence of intent to
do grievous bodily harm was a subjective one, so that the intent must be the intent in
Smith's mind; (d) that the introduction of the test of what a reasonable man must have
thought, which was an objective test, was wrong.
The view taken by the Court of Criminal Appeal seemed to be that, if the question had
been left to the jury, they might have found: (1) that Smith did not intend grievous bodily
harm, even if a reasonable man, doing what he did, must have intended grievous bodily
harm, and (2) that tie did not intend grievous bodily harm on the ground that he neither
contemplated nor foresaw the consequences of his deliberate acts. The court held that the
question should have been left to the jury.
The court was wrong in so holding and the summing-up of Donovan J. was not open to
criticism. If the court were right. then, even when it was not disputed that the acts of the
accused were deliberate and intentional, and even though there was no plea of insanity,
diminished responsibility or incapacity to form an intention, by reason, for example, of
drunkenness, the judge would be obliged to tell the jury that, although they might be
satisfied that a reasonable man doing what the accused had done must have intended
grievous bodily harm, they must not assume that the accused had the same intent that a
reasonable man would have had and, if they were not satisfied that he had that intent,
they must acquit him of murder.
Here the jury must have found that Smith did acts which a reasonable man must have
known would cause grievous bodily harm, and that as a reasonable man he must have
intended grievous bodily harm. The defence, on the other hand, submitted that he neither
contemplated nor foresaw the consequences of his deliberate acts. But if it is established
that the accused has deliberately done acts of a character likely to cause grievous bodily
harm with full knowledge of all the relevant conditions, it is no answer for him to say that,
whatever a reasonable person would have thought would be the probable results of his
acts, he did not foresee them and so cannot be taken to have intended them. If it is no
answer for him to establish that, there is no need to put the question to the jury. The fact
that the accused did not foresee the consequences of his actions is of no relevance in a
criminal trial.
The Court of Criminal Appeal in this case referred to Reg. v. Vickers, 38 but the Crown
relies on what Lord Goddard C.J. said there as to implied malice.39 Rex v. Steane 40 was
also referred to. In that case it had to be proved that the acts done were likely to assist
the enemy, that they were intentional and that they were done with that particular aim.
That is a very different case from that of murder. But in such a case ns the present if an
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act is certain or likely to result in grievous bodily harm, then, in the absence of proof of
insanity, diminished responsibility or the like, there is an irrebuttable presumption that
the accused intended to do grievous bodily harm. The test is what a reasonable man
would have contemplated: see Rex v. Ward. 41 When a man has intentionally done certain
acts, then, unless there is a plea of insanity, diminished responsibility or the like, he must
be deemed to be a reasonable man and to be responsible for those acts accordingly.
There is an objective test in the case of the provocation which may reduce a killing from
murder to manslaughter. So also the test is objective to determine whether the act done
was of a kind likely to lead to grievous bodily harm. That objective test must be applied
here to the nature and quality of the acts of Smith.
In the judgment of the Court of Criminal Appeal reference is made to a man's foresight
of the natural consequences of his acts, 42 but while it may be right to have regard to a
man's foresight of the probable consequences of his acts when the court is considering
conduct amounting to an intention to desert in a matrimonial case, it is not relevant in
criminal cases where intention can be established without proof of foresight, when it is
shown that the act done was intentional and was likely (whether the accused foresaw it or
not) to cause grievous bodily harm. If Rex v. Philpot 43 is right, then the passage in the
judgment of the Court of Criminal Appeal referred to must be wrong. The two cannot stand
together. Rex v. Philpot 43 expresses the correct principle in criminal law.
Any reasonable person would say that a driver accelerating and zigzagging in the
circumstances of the present case was doing acts which would certainly do grievous bodily
harm to a person clinging to the car. It is wrong to draw a line between certainty and
likelihood. The factor to be taken into account here is the fact that the accused knew that
a man was lounging on to the side of the car with no foothold, and the jury might well
have taken the view that the probability of grievous bodily harm was so high that it was
certain. The reasonable man, with whom the law identifies an accused person, is the man
who, with full knowledge of the circumstances, is doing the act. The proper objective test
is: Would the the result be obvious to a reasonable marl?: see Rex v. Ward, 44 a case with
which the decision of the Court of Criminal Appeal in the present case comet stand and
which that court misread. That case is not the high-water mark of the application of the
principle; it is in accordance with a long line of authorities. Reg. v. Lenchitsky, 45 which
was relied on for the respondent, is not reconcilable with that case and is an exception to
that line of authorities. The whole idea of taking what an accused person actually foresaw
as to the consequences of his acts is inapplicable to this branch of the law.
On a charge of murder, where the charge is based, not on an intent to kill, but on an
intent to do grievous bodily harm, the prosecution must prove that the accused acted
either with intent to do grievous bodily harm or deliberately and intentionally did acts
likely to result in that harm, and that death has resulted.
The presumption that a man intends the natural and probable consequences of his acts
is rebuttable only on proof of insanity, diminished responsibility or incapacity to form an
intent. It is not rebuttable simply by evidence that, though the accused was sane and did
the acts deliberately, he did not intend grievous bodily harm because he gave way to panic
or lost his head or lost his temper. Apart from the exceptions stated, he must be taken to
be a reasonable man. Smith must be taken to be a reasonable man who would realise the
consequences of shaking off the constable in the middle of fast-moving traffic. Therefore,
Donovan J. was entitled to remind the jury that he was a reasonable man, accountable for
his actions.
As to the general principles applicable, see Stephen's History of the Criminal Law in
England, vol. III, p. 56. The distinction between an act likely to cause serious harm and
one not likely to cause it, as, for instance, a slight blow, must be tested objectively.
It is permissible to ask the accused whether he intended to kill or do grievous bodily

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harm, because if the answer he gives is “Yes,” there is an end of the matter as regards
intention; it is one way in which intent can be established; but guilt can be established
without proof of foresight on the part of the accused, or any admission by him that he
foresaw the consequences of his acts.
In murder cases one is not concerned with any duty of care judged by the standard of
the reasonable man. One must prove (a) the death; (b) that the death was due to the act
of the accused, and (c) that that act was done with intent to kill or to do grievous bodily
harm to someone. The objective test already referred to, the test of what could be
reasonably be expected, relates to the nature and quality of the act and determines on
which side of the line the conduct of the accused falls. The difference between murder and
manslaughter is that in the case of murder there must be an intent to do something to
somebody, to direct an act against somebody, as here to shake the constable off the car.
The objective test is related only to the “something” which the accused intended to do, so
that, if one man stabbed another with intent to do grievous bodily harm and killed him,
that would be murder, but if he struck him a light blow not intending to do him great harm
and killed him, that would be manslaughter. The court must be satisfied that the accused
intended to do the act to someone, but in determining whether that act was sufficiently
serious to involve a real expectation of grievous bodily harm, the test is objective. To
drive down Piccadilly at 80 miles an hour would be grossly negligent, but if someone was
killed in consequence that would not be murder, because it could not be proved that the
act was directed against anyone in particular. But where there is an intention to do
something to someone, then on the question of consequences the objective test must be
applied, having regard to the relevant circumstances. An abortionist using filthy
instruments which a reasonable person would have known were likely to cause grievous
bodily harm would formerly have been charged with murder in the event of death. The test
of what a reasonable person would have expected was applied. If, in the present case, the
constable had jumped on the luggage carrier at the back of the car without the knowledge
of the accused, and had fallen off as a result of his driving, that would have amounted to
manslaughter at the most.
One does not apply any standard to the accused's appreciation of the consequences of
his acts, because it is not material If he did acts which, in all the circumstances of the
case, a reasonable man would say were calculated to cause grievous bodily harm to
someone, that is enough to establish intent on his part, and he cannot be heard to say
that he did not intend to do grievous bodily harm to the deceased.
The distinction drawn by the Court of Criminal Appeal in this case between cases where
the harm was obviously certain to result, and cases where it was to be expected, and the
holding that in the latter cases a different direction must be given to the jury were
unsound, and were a novel and untenable introduction into the criminal law. In murder
cases, once the nature of the act has been established as one which a reasonable person
would expect to cause grievous bodily harm, the degree of expectation does not matter.
A person of the age of discretion is presumed to be accountable for his actions: Arch
bold's Criminal Pleading, 34th ed., p. 13, para. 31. This involves that he intends the
natural consequences of his deliberate acts: see Stephen's History of the Criminal Law in
England, p. 111. See also p. 115 as to knowledge of fact. If a person possessed of his
reason wilfully takes away the life of another, the first presumption is that he is guilty of
murder: Reg. v. Kirkham. 46 The question is whether the accused must, as a reasonable
man, have contemplated that death was likely to result from his acts: Rex v. Lumley. 47
See also Rex v. Gibbins and Proctor 48 ; Rex v. Betty and Ridley 49 ; Rex v. Grant and Gilbert
50
and Director of Public Prosecutions v. Beard. 51 In the absence of evidence to the
contrary the courts must treat the accused as a reasonable man.
The respondent relied on Reg. v. Vamplew, 52 but the question there was different. It
was whether the accused, aged 13 years, had reached an age when she was responsible
for her acts. Compare that case with the summing-up in Reg. v. Ward. 53 It was wrong of
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the Court of Criminal Appeal to suggest54 that that case was the high-water mark of the
presumption of intention.
If a man intends to do an act and does it, the answer to the question whether it was
calculated to do grievous bodily harm does not depend on his apprehension of its
consequences or on whether he foresaw them. If a reasonable man would have concluded
that the act was calculated or likely or certain to do grievous bodily harm, the jury are
bound to conclude that the accused acted with the intent to do grievous bodily harm. The
law was rightly put in Reg. v. Rymell. 55 If the Court of Criminal Appeal is right in the
present case, that decision must be wrong. The objective test of the ordinary reasonable
person must be applied in determining the nature and quality of the act: see Rex v.
Whybrow. 56 Reg. v. Pembliton 57 turned on its own special facts and there is a real
distinction between it and the present case. Reg. v. Cunningham 58 was much relied on by
the present respondent. In that case the court purported to rely on Kenny's Outlines of
Criminal Law, but see what was said there about malice, 1st ed., pp. 147, 164, and 13th
ed., pp. 148, 164–165. See also Reg. v. Welch 59 ; Reg. v. Faulkner 60 ; Reg. v. Walters 61 ;
Reg. v. Doherty 62 ; Reg. v. Serné 63 and Rex v. Headily. 64 The last-named case does not
support the proposition that the accused must foresee the likely consequences. The judge
dealt with the point whether knocking down the deceased was an intended act; he said
nothing as to the accused's foresight of the consequences which might ensue. Lang v.
Lang 65 was a very different case from the present one. In considering the conduct of a
husband to his wife over a long period of time it may be right to have regard to what he
actually foresaw, but that is to be distinguished from the present case where the issue is
what is the intent accompanying a limited number of acts on the same occasion within a
short period of time.
Three main passages in the judgment of the Court of Criminal Appeal are wrong. The
first is the ruling as to the presumption of intention, 66 followed by the reference to Rex v.
Steane, 67 which was misapplied. The second is the distinction drawn between cases
where the act done will obviously produce grievous bodily harm and cases where it is only
likely to have that result.68 This distinction, which is novel and invalid, is based on a
misinterpretation of Reg. v. Ward. 69 In either case one need not prove knowledge or
foresight to establish the necessary intent. The third passage is that in which it is said
that it was essential to make it clear that the presumption that the accused intended the
natural consequences of his actions could be rebutted.70 It was not necessary to put this
to the jury because there was no evidence before them to entitle them to find that it was
rebutted.
In summary, aerials there are grounds advanced showing that the accused is incapable
of forming an intent, then, being sane and accountable for his actions, he must be
presumed to intend the natural and probable consequences of his actions. It must be
determined Whether his intentional acts were of such a character as to create an
expectation of grievous bodily harm resulting from them. That must be determined as in
Reg. v. Rymell 71 and Reg. v. Ward. 72 While the presumption that a man intends the
natural and probable consequences of his acts is rebuttable, it is not rebuttable in the
case of acts deliberately done; it is no defence that he did not actually foresee the
consequences. In this case the condition of the road is relevant in determining what a
reasonable man would have foreseen as the natural and probable consequences of what
the accused did. In Bedder v. Director of Public Prosecutions, 73 the objective test of the
nature and quality of the acts of the accused was applied, the test whether a reasonable
man doing the acts which were done would have thought the consequences likely to ensue
or, since “likely” might be misunderstood or misapplied, “calculated” may be more
accurate.
In considering an intent to do “grievous bodily harm,” the words are to be given the
same meaning whether the charge is one of murder or of the statutory offence and should
be given their ordinary natural meaning. The view that interference with comfort will
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amount to grievous bodily harm should be rejected. [Reg. v. Ashman 74 was referred to.]
Edward Clarke Q.C., Audrey Jennings and D. B. Watling for the respondent. The task of
the respondent's counsel is threefold: (1) They must persuade the House to dismiss the
appeal and preserve the Court of Criminal Appeal's finding of manslaughter and the
sentence of 10 years' imprisonment imposed by it. The death penalty, it is now known, will
not, in any circumstances, be exacted, but, if the appeal were dismissed, the penalty
would be life imprisonment. In some circumstances life imprisonment for murder would be
a sentence preferable to one of 10 years, since it Might be reviewed after five years, but it
is important to the respondent personally not to be classed as a murderer. The first duty
of the respondent's counsel is to establish that Donovan J. misdirected the jury in law and
in fact. In arguing this case before the House they are in the same position as they were
in before the Court of Criminal Appeal and are not limited to the point of law of
exceptional public importance in respect of Which the certificate was granted: see Milne v.
Commissioner of Police for City of London. 75 (2) The second task of the respondent's
counsel is to support the judgment of the Court of Criminal Appeal. (3) Their third task is
to help the House to lay down for the future the proper direction in a case of murder and
to rule whether the direction in Reg. v. Ward 76 was proper.
On the first point, the summing-up was not accurate or fair to the accused in its
statement of the facts, and the Court of Criminal Appeal was more accurate. It is not true
to say that the case for the Crown is clear and is based on the clearest evidence. Thus the
evidence was that the deceased constable and the accused were on friendly terms. Again,
some of the witnesses said that the constable was not on the bonnet of the car. The
evidence does not establish that he suffered injuries from any other car besides the one
which ran over him. The judge did not remind the jury of the presence of cyclists on the
road, compelling the accused to swerve in order to pass them, of the discrepancies in the
evidence of the witnesses for the prosecution as to the position of the constable on the
accused's car, of the evidence of one witness that the appellant did not appear to have
control of the car, or of the evidence of another witness that the accused was in a panic
and was not trying to bump the constable off. The accused's denial that he knew the
constable was on the car was not put to the jury in the summing-up and it was not right
to imply that he did know it. His phrase about wanting to “shake him off” could mean
wanting to get away from him, not necessarily to throw him off the car.
The summing-up was wrong in law in three respects:
(1) The judge said that if the jury concluded that a reasonable man would realise that
the acts of the accused might well cause serious harm to the constable, that would entitle
them to impute such an intent to him and convict him of capital murder. But the proper
test is not what the reasonable man could or would have intended, the objective test, but
what the accused himself intended, the subjective test, so that his state of mind is the
matter of which the jury must be satisfied.
(2) The judge referred to “the presumption of law that a man intends the natural and
probable consequences of his acts.” So stated, without any further direction, that
amounted to a misdirection. Whether it is a presumption of law or fact or good sense it is
not one which the jury must necessarily follow; but, it being described as a presumption of
law, the jury, having been told that they must take the law from the judge, would
automatically give effect to it. It was a misdirection to say that it was a presumption of
law and not to add that it was rebuttable and could only be acted on if there was no
evidence to disturb it. Here there was some evidence to disturb it.
(3) The judge also misdirected the jury in telling them that if they were satisfied that
the accused had the intention seriously to interfere with the constable's comfort, that was
sufficient for a conviction of murder. But in the context of murder the intent must be either
to kill or to do an act which the accused must know is likely to kill, an act obviously
dangerous to life.
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The law of murder has grown too harsh in the suggestion that the intentional doing of
an act which is likely seriously to interfere with the comfort of another is enough to
support a conviction if death ensues. If that were right, murder by pinprick would be a
legal possibility, since to prick a man in the stomach or the back would seriously interfere
with his comfort. On the same principle, if a powerful man punched someone on the nose,
that would be likely seriously to interfere with his comfort, and if he died of a heart attack
as a result, that would be murder. It has been said that it is safe to leave such matters to
the good sense of judges and juries, but it is not enough that the law of murder, the most
serious known crime, should be left fluid to be interpreted at the whim of a judge or jury.
Judges take different views and, when a man has an “unsympathetic” personality, a jury
might take a bad view of his case in an emotional way, while a man with an attractive
personality would be acquitted by them. The law as to murder should be clear and
definite, providing the maximum guidance to juries, who are not experts, in deciding
border-line cases.
In such cases as these, if murder is not proved, the alternative is manslaughter, for
which the maximum penalty is life imprisonment, so that if it were now held that, in order
to support a conviction for murder, the act done must either be likely to kill or be
dangerous to life, the effect on public safety would be small.
Although under the Homicide Act, 1957 , when the deceased is a police officer, the
penalty for murder is death instead of life imprisonment, the discretion given to the jury
should be the same whether the person killed is a constable or a private individual.
On the authorities it is open to the House to interpret the expression “an intent to
cause grievous bodily harm” as an intent to do an act which is likely to kill or is obviously
dangerous to life. There is no authority on the meaning of the expression binding on the
House.
Homicide is dealt with in Stephen's History of the Criminal Law in England, vol. III, pp.
20–21. It is to be noted that in this connection he refers to “bodily harm” without any such
adjective as “grievous” or “serious,” but the expression is linked with “death.” What is said
in Kenny's Criminal Law, 17th ed., p. 134, as to mens rea and malice aforethought in
murder is adopted. See also pp. 136–137, para. 107. Express malice can only arise when
there is (1) an intent to kill, or (2) an intent to hurt by an act which the person doing it
realises is likely to kill, or (3) doing an act which the person realises is likely to kill even if
there is no intention to hurt. An example of the third class of act was the blowing up of
the wall of Clerkenwell Prison by Fenian conspirators, in the course of which several
persons were killed. Michael Barrett was tried for murder and hanged: see Reg. v.
Desmond and Others. 77 See also Rex v. Barnes and Richards. 78
There is implied malice when an act is done without any specific intention at all but the
act is such that malice is implied, as, for example, in the case of death inflicted in
furtherance of a crime of violence. The position has been dealt with by section 1 of the
Homicide Act, 1957 . The Act leaves only express malice in the case of murder; no
possibility of implied malice is left. An intent to do grievous bodily harm, where it exists,
is express malice. The expression “constructive malice” is not a phrase known to the law.
Malice requires either an intention to do the kind of harm done in recklessness whether
such harm should occur or not, that is, the accused must have foreseen that the particular
harm might be done and yet have gone on to take the risk of it: Reg. v. Cunningham. 79
The distinction defined between murder and manslaughter in Reg. v. Vamplew 80 is

conclusive that in the case of murder the act done must be “likely to cause death.” See
also the note at the end of the report. A view which is too wide is corrected in a note
appended to the report of Reg. v. Horsey. 81 See also Stephen's History of the Criminal
Law in England, vol. III, pp. 79–80, 113, 115. The expression “grievous bodily harm” in
relation to murder means grievous bodily harm which is in itself likely to kill or is a danger
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to life in the mind of the man charged.
From Reg. v. Ashman 82 came the definition of grievous bodily harm as harm “such as
seriously to interfere with comfort or health.” This is the main authority for the direction
which has been held proper ever since: see Arch bold's Criminal Pleadings, 34th ed., p.
1016, s. 2654. It has not always been strictly followed, however, since some judges have
added that it must be something deliberate. The trial judge in the present instance
applied that case in its most stringent form, but it is an authority which goes too far. A
black eye or a broken nose suffered from a blow with a fist would fall within the words of
that authority. The prosecution in that case was under section 12 of the Offences against
the Person Act, 1828 (9 Geo. 4, c. 31). Rex v. Cox, 83 which was also cited in the
Paragraph in Archbold, was a prosecution under a still older Act (43 Geo. 3, c. 58).
As to these two Acts and the cases decided under them, see Kenny's Outlines of
Criminal Law, 17th ed., p. 149, para. 116a, where it is said that in the context of murder
the intent to do grievous bodily harm should not be taken in this wide sense. See also pp.
137 and 152.
The accused disputes that he had the intention to shake the constable off. He was
standing beside the car and it was reasonable to suppose that when the car accelerated
violently he had let go of it. If the other car had not run over him his injuries might have
been relatively trivial. In the recent case of Reg. v. Clement 84 at the Middlesex Sessions a
man disqualified from driving who had driven zigzagging for half an hour knowing that a
constable who had tried to stop him was clinging to the roof of the car, was only charged
with causing the constable bodily harm by wanton or furious driving, although his act was
far worse than that of the accused in the present case.
For the Crown it was argued that in a murder trial the accused cannot be heard to say
that he had no intent to cause grievous bodily harm if the circumstances were such that a
reasonable man would have realised that such harm would follow, and the state of mind of
a reasonable man must be imputed to him. Under section 18 of the Offences against the
Person Act, 1861, it is an offence to wound someone with intent to do him grievous bodily
harm. In such a prosecution it is not correct to impute to the accused the intention of a
reasonable man and the test should not be different where in a trial for murder an intent
to do grievous bodily harm is relied on. In both cases the direction given to the jury should
be the same. In cases of intent to defraud the proper test has always been: What did the
man himself intend to do? To hold otherwise would affect the whole structure of the
criminal law, which requires the prosecution to prove the actual intent. The decision in this
appeal will be of vital importance, not only in murder cases, but in the other cases referred
to.
Even if one applies the test of the reasonable man, it must be the reasonable man in
the circumstances of the accused, though in applying that test one is pushing the
intention of the accused into the background, whereas it ought to be in the foreground,
and it is wrong to whittle down the requirement of proof of his intention. The intent which
a reasonable man would have should be used as no more than a guide; it should not be
used as imputing an intention to the accused. If one applies the test of the reasonable
man to the present case, one should assume a reasonable man who has got stolen
property in his car, is in a panic, wants to get away from the constable and steps on the
accelerator. In those circumstances it is possible that the reasonable man might have
intended no harm to the constable. Panic should be taken into consideration in the same
way as drunkenness.
Since an accused person has been able to give evidence, it has been easier to go into
his actual state of mind and less appropriate to rely on what would have been the state of
mind of a reasonable man. In Reg v. Doherty 85 Stephen J. in his direction to the jury did
not mention the reasonable man. That is the proper way to direct a jury on a charge of
murder. It can never be an embarrassment to a judge to refer to the intent of the accused.
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To apply the doctrine of the reasonable man is not a help but a hindrance. Reg. v. Ward,
86
which was wrongly decided, is the high-water mark of the test of the reasonable man.
Rex v. Philpot 87 was also wrongly decided and should be overruled. This interposition of
Lush J. in the argument88 should be noted. To grab someone round the throat will not
necessarily cause grievous bodily harm; the act must be accompanied by such an
intention. The law is properly laid down in Woolmington v. Director of Public Prosecutions.
89 In that passage, it may be argued, the word “unintentional” may either mean that the
accused did not intend to do the act or that he was without an intent to do an injury which
was likely to kill. The latter is the correct meaning. As to Rex v. Lamely, 90 relied on by the
Crown, the court was there dealing with peculiar circumstances of a doctor tried for killing
through an illegal operation. In that case the test of the reasonable man assisted the
accused and worked in his favour. It may well be that in such cases the judges thought
that such a man should not be charged with murder and were giving the juries a loophole
to find a verdict of manslaughter, as the jury in that case did. Rex v. Hedley 91 was on all
fours with the present case, save that there was a stronger case against Hedley than
against the present respondent.
To uphold a conviction of murder the intention as to the consequences of the act must
be in the mind of the accused; the intent need not be the intent of a reasonable man. The
excitement of the moment is to be taken into consideration for the purpose of reducing
the crime from murder to manslaughter, because of the intent in the mind of the accused.
Rex v. Steane 92 is strongly relied on. Reg. v. Grant and Gilbert 93 and Reg. v. Ward 94 are
dealt with in Russell on Crime, 11th ed., vol. I, pp. 365 et seq. The Homicide Act, 1957 ,
followed the last-named case. It effectively abandoned the doctrine of implied malice
because the intent to cause grievous bodily harm resulting in death is a matter of express
malice. Since the Act only express malice remains. Reg. v. Vickers 95 is on all fours with
the present case because the question was whether there was an intent in the mind of the
accused to cause grievous bodily harm. That case is relied on. The court there indicated
that the prosecution must prove an intent to cause grievous bodily harm, the subjective
test. That shows the proper way of summing up without mentioning the reasonable man.
The proper direction to a jury on intent in murder cases was given in Reg. v. Doherty 96 ;
Rex v. Headily 97 and Reg. v. Lenchitsky. 98 When one is dealing with a person accused of
murder it is inappropriate to talk of the reasonable man, though one might talk of a man
capable of reasoning. The test of the reasonable man substitutes the jury for the accused.
The authorities clearly lay down that the presumption that a man intends the natural
and probable consequence of his acts is rebuttable, but the effect of what the trial judge
told the jury was that it was a presumption whistle they Mast adopt. This was a
misdirection. The Court of Criminal Appeal put the matter correctly in the present case.99
That passage corresponds to what Denning L.J. said in Hosegood v. Hosegood. 100 What
he wrote in an article on Presumptions and Burdens in the Law Quarterly Review (1945),
Vol. LXI, pp. 379–380, 381–382, is adopted on behalf of the respondent, and also Glanville
Williams on Criminal Law, pp. 77–81, para. 27, and pp. 705–706, para. 228. A man will not
always be taken to intend the natural and probable consequences of his acts.
In summary, the trial judge used the test of the reasonable man, which is not the
proper test in imputing an intention to the accused. In stating the presumption that a man
intends the natural and probable consequences of his acts he did not tell the jury that the
presumption is rebuttable. An intention seriously to interfere with the victim's health or
comfort is not enough to support a charge of murder.
Audrey Jennings following. In his summing-up the trial judge said that “grievous bodily
harm” simply means some “harm which is sufficient seriously to interfere with the victim's
health or comfort.” That amounts to a misdirection: see Rex v. Miller, 101 where the
Supreme Court of Victoria held that the expression “grievous bodily harm” bore its ordinary
and natural meaning, and that it was a misdirection to tell the jury that it meant “some
serious interference with bodily health and comfort.”
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The trial judge read the words “likely” and “calculated” as if they meant the same thing.
He also used the words “shaking off” as if they were the same as dislodging, the
deliberate act of forcing the constable off the car, of which there is no evidence. He
equated the probable and likely consequences of an act with an actual intention. This was
a loose use of language liable to lead to a misunderstanding.
In the Shorter Oxford English Dictionary intention is defined as “the action of straining
or directing the mind or attention to something.” In connection with the meaning of
“malice aforethought” the word “aforethought” is defined as “premeditated,” while
“premeditate” is defined as “to study with a view to subsequent action.” This is the right
approach to intention and malice aforethought. Here the motive of the accused was to
avoid arrest, and his intention was to leave the officer behind and get away from the
place; the means adopted was to put his foot on the accelerator, causing the car to move
and thereby presumably leaving the officer behind. It has been suggested that it is
possible to equate the intention of the accused with an intention to cause the
consequences which resulted, and with foresight of them. But in order to do so, the
consequences would have had to be certain in his mind. In all the cases relied on by the
Crown the act done has been one of physical violence. In Rex v. Gibbins and Proctor 102
the withholding of food from a child was equivalent to physical violence.
Here there were two possibilities before the jury, (1) that the accused foresaw that the
constable would be hurt as a certain result of his actions, and (2) that he did not direct his
mind sufficiently to the constable and that, although he knew he was there, he was
directing his mind to getting away, so that his mind was adverting to his escape rather
than to the constable, and he did not give enough care to what happened to him. That
would be recklessness or negligence, but mere negligence is not enough to support a
charge of murder or manslaughter: see Reg. v. Nicholls 103 and Rex v. Bonneyman. 104 In
equating a man's appreciation of the likely result of his actions with his intention the
judge was running the tests of murder and manslaughter together. If the accused
appreciated the risk, though, because his mind was occupied with something else, he took
it recklessly, that would justify a verdict of manslaughter and not of murder. If the
accused had realised that the certain result of his act would be serious injury to the
constable, that might support a charge of murder. One must, therefore, apply the
subjective test to his acts and their consequences, for in every case there must be an
actus reus and a mens rea. The intention must be related to the crime: see Glanville
Williams on Criminal Law, p. 32. The question here is: What was in the mind of the
accused in relation to the consequences when he put his foot on the accelerator?
If the consequences of an act are certain or obvious, it may be right to say that a man
intends those certain or obvious consequences. But if the consequences are only in the
realm of likelihood, then, though he may intend the act, he is not to be taken as intending
the consequences. Having found whether the consequences were certain or likely, one
must ask whether the accused saw them as certain or likely. Subjectivity must be
preserved throughout. One must see whether the act was deliberate and then find what
was the accused's view of the act. The process is easy if a man hits another on the head
with a chopper, when it would be hard to convince a jury that he did not intend the harm
which he caused.
Here the accused, while saying that he is a reasonable man, also says that he did not
act as a reasonable man.
The onus is on the prosecution throughout to prove the primary intent of the accused:
see Woolmington's case.105
The effect of the Crown's proposition in this case would be to shift the burden of proof
as to intention onto the accused.
In considering the possibilities of murder or manslaughter the court should consider

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whether the accused had the position of the constable in mind or whether he was entirely
bending his mind towards escape. Did he just hope the constable would drop off? Did he
try to knock him off? Did he think about him at all? The verdict should depend on the view
the jury take of the direct and the oblique objects of the accused. In a criminal case
intention is all-important.
Sir Reginald. Manningham-Buller Q.C., A.-G. in reply. It is agreed that intention is all-
important in criminal cases. For the respondent the case was argued on the basis that, in
the absence of direct evidence of intention, the burden is on the prosecution of showing
that before the act was done there was knowledge or foresight or apprehension by the
accused of the consequences of it. No authority cited for the respondent supported this. It
is a fundamental fallacy that one can only prove intent if one can establish foresight,
knowledge or apprehension of such consequences by the accused before he did the act.
This is contrary to Rex v. Philpot 106 and to what Lord Birkenhead said in Beard's case.107
There is nothing in the evidence to suggest that this respondent did not know what he
was doing. There was certainty or a very high degree of probability that the constable
would fall off this fast-moving vehicle faced with oncoming traffic and that he would
sustain serious injury. There is ample evidence that he knew the constable was on the car.
As to the meaning of “grievous bodily harm,” it cannot be suggested that it includes

something which is not dangerous, although the hurt need not be permanent. The trial
judge expressed it rightly when he spoke of “at least serious hurt” and “at least serious
harm.” The expressions used have developed with time: Coke, 3 Inst. 50, says “wound or
beat another.” Foster in his Discourses upon a Few Branches of the Crown Law (1762), p.
260, refers to “great bodily harm.” The expression in Blackstone's Commentaries (1769
ed.), vol. IV, p. 199, is “one beats another in a cruel and unusual manner.” In Hale's Pleas
of the Crown (1800 ed.), vol. I, p. 451, the expression is “some corporal harm.” In East's
Pleas of the Crown (1803 ed.) the words used are “some great bodily harm.” The
expression “grievous bodily harm” was first used in Reg. v. Bubb and Hook 108 : it was
subsequently used in Reg. v. Porter 109 ; Stephen's History of the Criminal Law (1883), vol.
III, p. 56; Reg. v. Doherty 110 ; Rex v. Lumley 111 ; Rex v. Gibbins and Proctor 112 ; Director of
Public Prosecutions v. Beard 113 ; Rex v. Larkin 114 ; Holmes v. Director of Public
Prosecutions 115 ; Reg. v. Rymell 116 ; Reg. v. Lenchitsky 117 ; Reg. v. Ward 118 ; and Reg. v.
Vickers. 119
A person who, intending to do grievous bodily harm, kills, is guilty of murder. The
relevant enactments dealing with wounding are section 1 of the Malicious Shooting and
Stabbing Act, 1803 (43 Geo. 3, c. 58), section 12 of the Offences against the Person Act,
1828 (9 Geo. 4, c. 31), and section 18 of the Offences against the Person Act, 1861 (24 &
25 Vict., c. 100).
In the present case it was mere surplus age to talk of interfering with the comfort of
the deceased, because the danger to him did not come into that category at all. In the
phrase “grievous bodily harm” it is safe to treat “grievous” as equivalent to “serious,” and
the danger here was of serious harm. To speak of interfering with comfort in this
connection is a meiosis. Grievous bodily harm must be of a character likely to cause
serious injury or death. The direction in Ashman's case120 went too far, and the decision in
Cox's case121 is unsatisfactory. Reg. v. Vickers 122 is right, whatever context one gives to
grievous bodily harm. To support a charge of murder there must be an intent to do serious
harm to some person: see Stephen's History of the Criminal Law, vol. III, pp. 20 and 80.
In the passage at pp. 136–137 of Kenny's Outlines of Criminal Law, 17th ed., relied on by
counsel for the respondent, it is hard to see how much is the law now and how much is
what the editor thought the law should be. It expresses the complete subjective approach
to the problem. Unless the test is that in the eyes of all reasonable people the act was
likely to cause serious injury, a man of low intelligence and slow mental processes would
have a great advantage. The test of foresight, “what a man of reasonable prudence would
have foreseen,” is adopted in Holmes's book on the Common Law, pp. 51–54. That is right.
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In section 5 (2) of the Homicide Act, 1957 , it was not the intention of Parliament to
eliminate the possibility of murder in the case of an assault with intent to do grievous
bodily harm. In Vamplew's case123 the report is not very satisfactory, but it appears that
the court was directing its attention to the question whether, having regard to the age of
the accused, she was conscious of the nature of her act. Horsey's case124 was relied on by
the respondent not so much for its substance as for the footnotes. If a reasonable man
would have foreseen the consequences of the acts of the accused, then he must be taken
to have foreseen them. If there was a real probability of grievous bodily harm resulting,
then the degree of probability does not matter. It would have been very extraordinary if
the constable, dislodged from the car on the road with traffic, had escaped without serious
injury. Philpot's case125 was rightly decided. What was said in Woolmington's case126 is
accepted as correct, but the two cases are not inconsistent. It is right to equate the
accused with a reasonable man in the sense of a sane or responsible or thinking man, for
the expression “reasonable man” is not used in this context as a term of art. The Crown
must satisfy the jury as to the intent of the man himself in doing the act, but it need not
show that he himself appreciated the consequences of his course of conduct. It matters
little whether the presumption that a man intends the natural and probable consequences
of his acts is one of fact or law. On either view, there was no need for the trial judge to
tell the jury that it was rebuttable, because there were here no matters in evidence
sufficient to rebut the presumption. Hosegood's case, 127 relied on by the respondent, was
a matrimonial case relating to constructive desertion and the passage cited related to an
overall intent to desert. But an overall intent, for instance, to escape is not in point here
because it would afford no defence. Even if the accused did not foresee the consequence
of death and did not desire it, he was still guilty of murder. To hold that the respondent's
submissions and the decision of the Court of Criminal Appeal were right would involve
holding that Lumley's case128 and Philpot's case129 were wrong, that what was said in
Whybrow's case130 was wrong, that Rymell's case131 was wrong and that what was said in
Ward's case132 was wrong. Beard's case133 would have to be distinguished.
Edward Clarke Q.C. , dealing with the passage in Holmes on The Common Law referred
to in reply: On the author's test, a doctor performing a dangerous operation with
knowledge that it will probably cause death would be guilty of murder. At pp. 62–63
Holmes contrasts malice aforethought in murder with the malice constituting malicious
mischief and the malice in “wilfully and maliciously” injuring another's property. The intent
to cause grievous bodily harm must be proved in the same way in cases of murder as in
cases of wounding. The passage in Holmes relied on by the court should not be followed,
as it does not set out the correct view in the case of murder.
Their Lordships took time for consideration.
July 28. VISCOUNT KILMUIR L.C. My Lords, the respondent, Jim Smith, was convicted on
April 7, 1960, of the wilful murder on March 2, 1960, of Leslie Edward Vincent Meehan, a
police officer acting in the execution of his duty. Such a crime constitutes capital murder
under section 5 of the Homicide Act, 1957 , and, accordingly, the respondent was
sentenced to death. There was never any suggestion that the respondent meant to kill the
police officer, but it was contended by the prosecution that he intended to do the officer
grievous bodily harm, as a result of which the officer died.
In his final direction to the jury the trial judge, Donovan J., said: “If you are satisfied
that … he must as a reasonable man have contemplated that grievous bodily harm was
likely to result to that officer … and that such harm did happen and the officer died in
consequence, then the accused is guilty of capital murder. … On the other hand, if you are
not satisfied that he intended to inflict grievous bodily harm upon the officer — in other
words, if you think he could not as a reasonable man have contemplated that grievous
bodily harm would result to the officer in consequence of his actions — well, then, the
verdict would be guilty of manslaughter.”
The respondent appealed to the Court of Criminal Appeal alleging misdirection by the
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trial judge, the main ground being that the direction cited above was wrong in that the
question for the jury was what he, the respondent, in fact contemplated. The appeal was
heard by the Court of Criminal Appeal on May 9 and 10, 1960, when the court allowed the
appeal, substituted a verdict of guilty of manslaughter and imposed a sentence of 10
years' imprisonment. The court gave its reasons on May 18, 1960. They upheld the
respondent's contention, holding that “there always remained the question whether the
appellant” (the present respondent) “really did … realise what was the degree of likelihood
of serious injury.”
Thereupon the Attorney-General gave his fiat certifying that the appeal of Jim Smith
involved a point of law of exceptional public importance and that, in his opinion, it was
desirable in the public interest that a further appeal should be brought. The matter now
comes before your Lordships' House on the appeal of the Director of Public Prosecutions.
The appeal certainly involves an important question, raising, as it does, the question as to
what is the proper direction to be given to a jury in regard to the necessary intent which
has to he proved in cases of murder and also in cases under section 18 of the Offences
against the Person Act, 1861.
[His Lordship stated the facts and continued:] In this state of the evidence the defence
was twofold: (1) That he did not realise the officer was hanging on to the car until the
officer fell off and that he could not keep a straight course having regard to the weight of
metal in the back. In other words, he raised the defence of accident. (2) Alternatively, that
it was a case of manslaughter and not murder in that he had no intent to kill or to do
grievous bodily harm.
As regards the defence of accident, the learned judge went through the relevant
evidence and ended by saying this: “There is a limit, is there not, members of the jury, to
human credulity, and you may think that the accused man's unsupported assertion on this
part of the case goes well past it, that the evidence is overwhelming, and he knew his car
was carrying the officer up the road? The matter is one for you, but if you arrive at the
conclusion that, of course, he knew, it is one which I would regard as abundantly right.
Indeed, on the evidence I do not see how you could properly arrive at any other
conclusion. If that be so the defence of pure accident goes.”
My Lords, it would seem that this observation was fully justified on the evidence, and
the jury by their verdict must have rejected the possibility of accident. Indeed, the
defence of accident was never suggested either in the Court of Criminal Appeal or in your
Lordships' House.
It is in regard to the second defence that the summing-up of the learned judge has
been criticised, and indeed has been held to amount to a misdirection, by the Court of
Criminal Appeal. It is said that the jury were misdirected as to the intent which has to be
proved in order to constitute the necessary ingredient of malice. The passages complained
of are these:
“The intention with which a man did something can usually be determined by a jury only
by inference from the surrounding circumstances including the presumption of law that a
man intends the natural and probable consequences of his acts.”
“If you feel yourselves bound to conclude from the evidence that the accused's purpose
was to dislodge the officer, then you ask yourselves this question: Could any reasonable
person fail to appreciate that the likely result would be at least serious harm to the
officer? If you answer that question by saying that the reasonable person would certainly
appreciate that, then you may infer that that was the accused's intention, and that would
lead to a verdict of guilty on the charge of capital murder.”
“Now the only part of that evidence of Police Constable Weatherill which the accused
challenges is the part that incriminates him, namely, ‘I only wanted to shake him off.’ He
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says he did not say that. Well, you may think it is a curious thing to imagine, and further
it may well be the truth — he did only want to shake him off; but if the reasonable man
would realise that the effect of doing that might well be to cause serious harm to this
officer, then, as I say, you would be entitled to impute such an intent to the accused, and,
therefore, to sum up the matter as between murder and manslaughter, if you are satisfied
that when he drove his car erratically up the street, close to the traffic on the other side,
he must as a reasonable man have contemplated that grievous bodily harm was likely to
result to that officer still clinging on, and that such harm did happen and the officer died
in consequence, then the accused is guilty of capital murder, and you should not shrink
from such a verdict because of its possible consequences. On the other hand, if you are
not satisfied that he intended to inflict grievous bodily harm upon the officer — in other
words, if you think he could not as a reasonable man have contemplated that grievous
bodily harm would result to the officer in consequence of his actions — well, then, the
verdict would be guilty of manslaughter.”
The main complaint is that the learned judge was there applying what is referred to as
an objective test, namely, the test of what a reasonable man would contemplate as the
probable result of his acts, and therefore would intend, whereas the question for the jury,
it is said, was what the respondent himself intended. This, indeed, was the view of the
Court of Criminal Appeal, who said134 : “Once mere accident was excluded, the present case
became one in which the degree of likelihood of serious injury to the police officer
depended on which of the not always consistent versions of the facts given by witnesses
for the prosecution was accepted. It was one in which it could not be said that there was a
certainty that such injury would result; and it was one in which there always remained the
question whether the appellant really did during the relevant ten seconds realise what was
the degree of likelihood of serious injury. If the jury took the view that the appellant
deliberately tried to drive the body of the police officer against oncoming cars, the obvious
inference was open to them that the appellant intended serious injury to result; if,
however, they concluded he merely swerved or zigzagged to shake off that officer, or if
they concluded that for any reason he may not have realised the degree of danger to
which he was exposing the police officer, a different situation would arise with regard to
the inferences to be drawn. In the former case the jury might well have felt they were
dealing with consequences that were certain; in the latter only with degrees of likelihood.”
Putting aside for a moment the distinction which the Court of Criminal Appeal were
seeking to draw between results which were “certain” and those which were “likely,” they
were saying that it was for the jury to decide whether, having regard to the panic in which
he said he was, the respondent in fact at the time contemplated that grievous bodily harm
would result from his actions or, indeed, whether he contemplated anything at all. Unless
the jury were satisfied that he in fact had such contemplation, the necessary intent to
constitute malice would not, in their view, have been proved. This purely subjective
approach involves this, that if an accused said that he did not in fact think of the
consequences, and the jury considered that that might well be true, he would be entitled
to be acquitted of murder.
My Lords, the proposition has only to be stated thus to make one realise what a
departure it is from that upon which the courts have always acted. The jury must, of
course, in such a case as the present make up their minds on the evidence whether the
accused was unlawfully and voluntarily doing something to someone. The unlawful and
voluntary act must clearly be aimed at someone in order to eliminate cases of negligence
or of careless or dangerous driving. Once, however, the jury are satisfied as to that, it
matters not what the accused in fact contemplated as the probable result or whether he
ever contemplated at all, provided he was in law responsible and accountable for his
actions, that is, was a man capable of forming an intent, not insane within the M'Naghten
Rules and not suffering from diminished responsibility. On the assumption that he is so
accountable for his actions, the sole question is whether the unlawful and voluntary act
was of such a kind that grievous bodily harm was the natural and probable result. The only
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test available for this is what the ordinary responsible man would, in all the circumstances
of the case, have contemplated as the natural and probable result. That, indeed, has
always been the law, and I would only make a few citations.
The true principle is well set out in that persuasive authority “The Common Law” by
Holmes J. After referring to Stephens' Digest of the Criminal Law and the statement that
foresight of the consequence of the act is enough, he says at pp. 53–54: “But again, What
is foresight of consequences? It is a picture of a future state of things called up by
knowledge of the present state of things, the future being viewed as standing to the
present in the relation of effect to cause. Again, we must seek a reduction to lower terms.
If the known present state of things is such that the act done will very certainly cause
death, and the probability is a matter of common knowledge, one who does the act,
knowing the present state of things, is guilty of murder, and the law will not inquire
whether he did actually foresee the consequences or not. The test of foresight is not what
this very criminal foresaw, but what a man of reasonable prudence would have foreseen.”,
and again at p. 56: “But furthermore, on the same principle, the danger which in fact
exists under the known circumstances ought to be of a class which a man of reasonable
prudence could foresee. Ignorance of a fact and inability to foresee a consequence have
the same effect on blameworthiness. If a consequence cannot be foreseen, it cannot be
avoided. But there is this practical difference, that whereas, in most cases, the question
of knowledge is a question of the actual condition of the defendant's consciousness, the
question of what he might have foreseen is determined by the standard of the prudent
man, that is, by general experience.”
In Reg. v. Faulkner 135 the Court of Crown Cases Reserved for Ireland, on grounds
immaterial to this case, quashed a conviction for arson of a sailor who, with intent to
steal, tapped a cask of rum. He was holding a lighted match and the rum caught fire and
the vessel was destroyed. Palles C.B. stated the law as follows: “In my judgment the law
imputes to a person who wilfully commits a criminal act an intention to do everything
which is the probable consequence of the act constituting the corpus delicti which actually
ensues. In my opinion this inference arises irrespective of the particular consequence
which ensued being or not being foreseen by the criminal, and whether his conduct is
reckless or the reverse. This much I have deemed it right to say to prevent misconception
as to the grounds upon which my opinion is based.”
In Rex v. Lamely 136 Avory J. directed the jury in these terms: When he did the act, did
he contemplate, or must he as a reasonable man have contemplated, that death was
likely to result, or must he as a reasonable man have contemplated that grievous bodily
harm was likely to result? If, in your opinion, he must as a reasonable man have
contemplated either of those consequences, then your duty is to find him guilty of
murder.”
In Rex v. Philpot 137 the accused had strangled his wife. In evidence he said:
“something seemed to snap in my head, and I jumped up and caught her by the throat. I
lost control of myself altogether. I did not know what I was doing exactly; I felt as if I
was holding a very strong galvanic battery, and wanted to leave go, and could not.” The
real issue was whether or not he was sane at the time. The jury found that he was sane
and that he acted in a fit of temper without intending to kill her. In answer to a question
from the judge the foreman said: “The jury are unanimously and emphatically of opinion
that at the moment of the act the prisoner did not realise the consequences of what he
was doing.” The judge then asked them to reconsider their verdict, saying that a man is
held to intend the consequences of his act, and as a result the jury found the accused
guilty of murder. The Court of Criminal Appeal (consisting of Lord Alverstone C.J., Hamilton
and Lush JJ.) in dismissing the appeal said138 : “The jury found that he killed her in a fit of
temper; they added that he did not realise the consequences of his act, but they cannot
have meant that he began to do a harmless act, or one but little blameworthy, which
afterwards developed into something causing death. They must have meant that the
failure to realise the consequences was due to the fit of temper. In the circumstances it
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was not a misdirection to tell the jury that a man is held to intend the consequences of
his act. The only act in question was that which caused death, and the appellant who
committed this act, if sane, must be held to have intended that consequence.”
In Director of Public Prosecutions v. Beard 139 your Lordships' House had to consider
how far evidence of drunkenness could be taken into consideration in order to determine
whether the accused had the necessary intent. Reference was made to Rex v. Meade, 140
in which the Court of Criminal Appeal had said that it was a defence if it was shown that
the accused's mind was so affected by drink that he was incapable of knowing that what
he was doing was dangerous. In dealing with that case Lord Birkenhead L.C. in his speech
said 141 : “Your Lordships have had the advantage of a much more elaborate examination of
the authorities upon which the rule is founded than was placed before the Court of
Criminal Appeal, and I apprehend can have no doubt that the proposition in Meade's
case142 in its wider interpretation is not, and cannot be, supported by authority. The
difficulty has arisen largely because the Court of Criminal Appeal used language which has
been construed as suggesting that the test of the condition of mind of the prisoner is not
whether he was incapable of forming the intent but whether he was incapable of
foreseeing or measuring the consequences of the act.”
Coming to more recent times, the judgment of the Court of Criminal Appeal in Reg. v.
Ward 143 is to the same effect. Lord Goddard C.J. said: “Of course, the test must be
applied to all alike, and the only measure that can be brought to bear in these matters is
what a reasonable man would or would not contemplate. If the act is one as to which the
jury can find that a reasonable man would say: ‘It would never occur to me that death
would result or grievous bodily harm would result,’ then the jury can find him guilty of
manslaughter; but if the jury come to the conclusion that any reasonable person, that is
to say, a person who cannot set up a plea of insanity, must have known that what he was
doing would cause at least grievous bodily harm, and that the death is the result of that
grievous bodily harm, then that amounts to murder in law and a verdict of murder is
justified.”
Indeed, the only case which could possibly be said to support the view taken by the
Court of Criminal Appeal in the present case is Reg. v. Vamplew, 144 in which a young girl
of thirteen was charged with the wilful murder of an infant about ten weeks old by
administering poison. In summing up, Pollock C.B. directed the jury that145 “the crimes of
murder and of manslaughter were in some instances very difficult of distinction. The
distinction which seemed most reasonable consisted in the consciousness that the act
done was one which would be likely to cause death. No one, however, could commit
murder without that consciousness. The jury must be satisfied, before they could find the
prisoner guilty, that she was conscious, and that her act was deliberate. They must be
satisfied that she had arrived at that maturity of the intellect which was a necessary
condition of the crime charged.” It is clear, however, from the argument in the case, and,
indeed, from the last sentence of the direction of the Chief Baron, that the real issue in
the case was whether by reason of her age the accused had the necessary mens rea.
Indeed, it was so cited in Archbold, 34th ed., paras. 28 and 2472.
My Lords, the law being as I have endeavoured to define it, there seems to be no
ground upon which the approach by the trial judge in the present case can be criticised.
Having excluded the suggestion of accident, he asked the jury to consider what were the
exact circumstances at the time as known to the respondent, and what were the unlawful
and voluntary acts which he did towards the police officer. The learned judge then
prefaced the passages of which complaint is made by saying, in effect, that if in doing
what he did he must as a reasonable man have contemplated that serious harm was likely
to occur then he was guilty of murder.
My only doubt concerns the use of the expression “a reasonable man,” since this to
lawyers connotes the man on the Clapham omnibus by reference to whom a standard of
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care in civil cases is ascertained. In judging of intent, however, it really denotes an

ordinary man capable of reasoning who is responsible and accountable for his actions, and
this would be the sense in which it would be understood by a jury.
Another criticism of the summing-up and one which found favour in the Court of
Criminal Appeal concerned the manner in which the trial judge dealt with the presumption
that a man intends the natural and probable consequences of his acts. I will cite the
passage again: “The intention with which a man did something can usually be determined
by a jury only by inference from the surrounding circumstances including the presumption
of law that a man intends the natural and probable consequences of his acts.” It is said
that the reference to this being a presumption of law without explaining that it was
rebuttable amounted to a misdirection. Whether the presumption is one of law or of fact
or, as has been said, of common sense, matters not for this purpose. The real question is
whether the jury should have been told that it was rebuttable. In truth, however, as I see
it, this is merely another way of applying the test of the reasonable man. Provided that
the presumption is applied, once the accused's knowledge of the circumstances and the
nature of his acts has been ascertained, the only thing that could rebut the presumption
would be proof of incapacity to form an intent, insanity or diminished responsibility. In the
present case, therefore, there was no need to explain to the jury that the presumption
was rebuttable.
Strong reliance was, however, placed on the case of Rex v. Steane, 146 in which Lord
Goddard C.J. said: “No doubt, if the prosecution prove an act the natural consequence of
which would be a certain result and no evidence or explanation is given, then a jury may,
on a proper direction, find that the prisoner is guilty of doing the act with the intent
alleged, but if on the totality of the evidence there is room for more than one view as to
the intent of the prisoner, the jury should be directed that it is for the prosecution to
prove the intent to the jury's satisfaction, and if, on a ravioli of the whole evidence, they
either think that the intent did not exist or they are left in doubt as to the intent, the
prisoner is entitled to be acquitted.” That, however, was a very special case. The appellant
had been charged and convicted of doing acts likely to assist the enemy, with intent to
assist the enemy. His case was that while he might have done acts likely to assist the
enemy he had only done so out of duress and in order to save his wife and children.
Accordingly, this was a case where over and above the presumed intent there had to be
proved an actual intent or, it might be said, a desire by the appellant to assist the enemy.
It was also said that the Court of Criminal Appeal were right in stating the law thus147 :
“The law on this point as it stands today is that this presumption of intention means this:
that, as a man is usually able to foresee what are the natural consequences of his acts, so
it is, as a rule, reasonable to infer that he did foresee them and intend them. But, while
that is an inference which may be drawn, and on the facts in certain circumstances must
inevitably be drawn, yet if on all the facts of the particular case it is not the correct
inference, then it should not be drawn.” This passage in the judgment of the Court of
Criminal Appeal seems to have been lifted verbatim from the judgment of Denning L.J. in
Hosegood v. Hosegood, 148 a case dealing with proof of constructive desertion. In that
case, my noble and learned friend, Lord Denning, was approving the school of thought
which said that a husband is not to be found guilty of constructive desertion, however bad
his conduct, unless he had in fact an intention to bring the married life to an end.
Accordingly, the words in that passage were being used in connection with a case where
an actual or overall intent or desire was involved. No such overall intent or desire is
involved in the consideration of intent to kill or to do grievous bodily harm. Thus an overall
intent or desire, for example, an intent or desire to escape, could not afford any defence.
While, however, I can see no possible criticism of the trial judge in regard to the use he
made of the presumption in the present case. I cannot help feeling that it is a matter
which might well be omitted in summing up to a jury. The phrase “presumption of law” and
the reference, if it has to be made, to the presumption being “rebuttable” are only apt to
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confuse a jury. In my opinion, the test of the reasonable man, properly understood, is a
simpler criterion. It should present no difficulty to a jury and contains all the necessary
ingredients of malice aforethought.
Before leaving this part of the case I should mention that the Court of Criminal Appeal
in their judgment drew a distinction between serious harm which was “certain” to result
and serious harm which was “likely” to result. In their judgment if serious harm was
certain to result the presumption could safely be relied upon and there was no need for
the judge to tell the jury that it was rebuttable. On the other hand, if serious harm was
only a likely consequence, a judge should, in their opinion, tell the jury that the
presumption was rebuttable and that it was for them to determine whether the accused in
fact intended to inflict serious harm.
My Lords, there is, in my opinion, no warrant for such a distinction and no authority can
be adduced in support thereof. Indeed, counsel for the respondent did not, in your
Lordships' House seek to support the distinction. The Court of Criminal Appeal apparently
based their opinion on the passage which I have already cited in the judgment given by
Lord Goddard C.J. in Ward's case, 149 in which the words “must have known that what he
was doing would cause at least grievous bodily harm” occur. They treated these words as
the true ratio of the decision in Ward's case, 149 whereas the case really decided that the
direction to the jury was correct — a direction which had used the word “likely,” not
“certain.” It seems clear that Lord Goddard was not considering the distinction which the
Court of Criminal Appeal have drawn. In my opinion, the true question in each case is
whether there was a real probability of grievous bodily harm.
The last criticism of the summing-up which was raised before your Lordships was in
regard to the meaning which the learned judge directed the jury was to be given to the
words “grievous bodily harm.” The passages of which complaint is made are the following:
“When one speaks of an intent to inflict grievous bodily harm upon a person, the
expression grievous bodily harm does not mean for that purpose some harm which is
permanent or even dangerous. It simply means some harm which is sufficient seriously to
interfere with the victim's health or comfort.”
“In murder the killer intends to kill, or to inflict some harm which will seriously interfere
for a time with health or comfort.”
“If the accused intended to do the officer some harm which would seriously interfere at
least for a time with his health and comfort, and thus perhaps enable the accused to make
good his escape for the time being at least, but that unfortunately the officer died
instead, that would be murder too.”
The direction in these passages was clearly based on the well known direction of Willes
J. in Reg. v. Ashman 150 and on the words used by Graham B. in Rex v. Cox. 151 Indeed,
this is a direction which is commonly given by judges in trials for the statutory offence
under section 18 of the Offences against the Person Act, 1861, and has on occasions been
given in murder trials: cf. Reg. v. Vickers. 152
My Lords, I confess that whether one is considering the crime of murder or the statutory
offence, I can find no warrant for giving the words “grievous bodily harm” a meaning other
than that which the words convey in their ordinary and natural meaning. “Bodily harm”
needs no explanation, and “grievous” means no more and no less than “really serious.” In
this connection your Lordships were referred to the judgment of the Supreme Court of
Victoria in the case of Rex v. Miller. 153 In giving the judgment of the court, Martin J.,
having expressed the view that the direction of Willes J. could only be justified, if at all, in
the case of the statutory offence, said: “It is not a question of statutory construction but
a question of the intent required at common law to constitute the crime of murder. And
there does not appear to be any justification for treating the expression ‘grievous bodily
harm’ or the other similar expressions used in the authorities upon this common law
-----------------------------------------------------------------------------------------------------------------------------------------------------------
question which are cited above as bearing any other than their ordinary and natural
meaning.” In my opinion, the view of the law thus expressed by Martin J. is correct, and I
would only add that I can see no ground for giving the words a wider meaning when
considering the statutory offence.
It was, however, contended before your Lordships on behalf of the respondent that the
words ought to be given a more restricted meaning in considering the intent necessary to
establish malice in a murder case. It was said that the intent must be to do an act
“obviously dangerous to life” or “likely to kill.” It is true that in many of the cases the
likelihood of death resulting has been incorporated into the definition of grievous bodily
harm, but this was done, no doubt, merely to emphasise that the bodily harm must be
really serious, and it is unnecessary, and I would add inadvisable, to add anything to the
expression “grievous bodily harm” in its ordinary and natural meaning.
To return to the summing-up in the present case, it is true that in the two passages
cited the learned judge referred to “grievous bodily harm” in the terms used by Willes J. in
Reg. v. Ashman, 154 but in no less than four further passages, and in particular in the vital
direction given just before the jury retired, he referred to “serious hurt” or “serious harm.”
Read as a whole, it is, I think, clear that there was no misdirection. Further, on the facts
of this case it is quite impossible to say that the harm which the respondent must be
taken to have contemplated could be anything but of a very serious nature coming well
within the term “grievous bodily harm.”
Before leaving this appeal I should refer to a further contention which was but faintly
adumbrated, namely, that section 1 (1) of the Homicide Act, 1957 , had abolished malice
constituted by a proved intention to do grievous bodily harm, and that, accordingly, Reg.
v. Vickers, 155 which held the contrary, was wrongly decided. As to this it is sufficient to
say that in my opinion the Act does not in any way abolish such malice. The words in
parenthesis in section 1 (1) of the Act and a reference to section 5 (2) make this clear
beyond doubt.
In the result the appeal should, in my opinion, be allowed and the conviction of capital
murder restored.
LORD GODDARD. My Lords, I agree with the opinion which has just been pronounced.
LORD TUCKER. My Lords, I also agree.
LORD DENNING. My Lords, I agree.
LORD PARKER OF WADDINGTON. My Lords, I also agree.
It was ordered “that the order appealed from be reversed and the cause be remitted to
the Court of Criminal Appeal to do what shall be just and consistent with this judgment.”
Appeal allowed.
Solicitors: Director of Public Prosecutions; Prothero & Prothero.
F. C.
1. [1957] 2 Q.B. 664; [1957] 3 W.L.R. 326; [1957] 2 All E.R. 741; 41 Cr.App.R. 189,
C.C.A.
2. (1862) 3 F. & F. 520.
C.C.A.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
4. (1887) 16 Cox C.C. 306.
5. (1887) 16 Cox C.C. 311.
6. (1911) 22 Cox C.C. 635.
7. (1940) 28 Cr.App.R. 1, C.C.A.
8. (1945) 31 Cr.App.R. 35, C.C.A.
9. [1947] K.B. 997; 63 T.L.R. 403; [1947] 1 All E.R. 813; 32 Cr.App.R. 61, C.C.A.
10. (1954) 38 Cr.App.R. 107, C.C.A.
11. [1954] Crim.L.R. 216, C.C.A.
12. [1956] 1 Q.B. 351.
13. [1957] 2 Q.B. 664.
14. [1956] 1 Q.B. 351.
15. 22 Cox C.C. 635.
16. [1956] 1 Q.B. 351.
17. 16 Cox C.C. 306.
18. [1954] Crim.L.R. 216.
19. [1957] 2 Q.B. 664.
20. [1956] 1 Q.B. 351.
21. [1957] 2 Q.B. 664.
C.C.A.
23. (1862) 3 F. & F. 287.
24. [1954] Crim.L.R. 216.
25. 22 Cox C.C. 635.
26. [1956] 1 Q.B. 351.
27. [1947] K.B. 997.
28. [1956] 1 Q.B. 351.
29. [1955] A.C. 402, 425; [1954] 3 W.L.R. 762; [1954] 3 All E.R. 571, P.C.
C.C.A.
31. [1947] K.B. 997; 63 T.L.R. 403; [1947] 1 All E.R. 813, C.C.A.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
32. [1947] K.B. 997, 1004.
33. [1956] 1 Q.B. 351, 356; [1956] 2 W.L.R. 423; [1956] 1 All E.R. 565, C.C.A.
34. [1947] K.B. 997.
35. [1954] Crim.L.R. 216, C.C.A.
36. [1956] 1 Q.B. 351.
C.C.A.
38. [1957] 2 Q.B. 664.
39. Ibid. 670.
41. [1956] 1 Q.B. 351; [1956] 2 W.L.R. 423; [1956] 1 All E.R. 565; 40 Cr.App.R. 1.
42. Ante , p. 299; [1960] 3 W.L.R. 92; [1960] 2 All E.R. 451.
43. (1912) 7 Cr.App.R. 140, C.C.A.
44. [1956] 1 Q.B. 351, 355–356.
45. [1954] Crim.L.R. 216, C.C.A.
46. (1937) 8 C. & P. 115, 116.
47. (1911) 22 Cox C.C. 635, 636.
48. (1918) 13 Cr.App.R. 134, C.C.A.
49. (1930) 144 L.T. 526, 527, 528; 22 Cr.App.R. 148, C.C.A.
50. (1954) 38 Cr.App.R. 107, C.C.A.
51. [1920] A.C. 479; 36 T.L.R. 379, H.L.
52. (1862) 3 F. & F. 520.
53. [1956] 1 Q.B. 351.
54. Ante, p. 301.
55. [1954] Crim.L.R. 60.
56. (1951) 35 Cr.App.R. 141, 146, C.C.A.
57. (1874) L.R. 2 C.C.R. 119, 121–122; 12 Cox C.C. 607.
C.C.A.
59. (1875) 1 Q.B.D. 23, 13 Cox C.C. 121, C.C.R.

-----------------------------------------------------------------------------------------------------------------------------------------------------------
60. (1877) 13 Cox C.C. 550, 561.
61. (1841) Car. & M. 164.
62. (1887) 16 Cox C.C. 306.
63. (1887) 16 Cox C.C. 311.
64. (1945) 31 Cr.App.R. 35, C.C.A.
65. [1955] A.C. 402, 424, 428, 429; [1954] 3 W.L.R. 762; [1954] 3 All E.R. 571, P.C.
66. Ante, p. 300.
67. [1947] K.B. 997.
68. Ante, p. 301.
69. [1956] 1 Q.B. 351.
70. Ante, p. 302.
71. [1954] Crim.L.R. 60.
72. [1956] 1 Q.B. 351.
73. [1954] 1 W.L.R. 118; [1954] 2 All E.R. 801; 38 Cr.App.R. 133, H.L.
74. (1858) 1 F. & F. 88.
75. [1940] A.C. 1, 21; 55 T.L.R. 898; [1939] 3 All E.R. 399; 27 Cr.App.R. 90, H.L.
76. [1956] 1 Q.B. 351.
77. (1868) 67 C.C.C.Sess.Pap. 486.
78. (1940) 56 T.L.R. 379; [1940] 2 All E.R. 229; 27 Cr.App.R. 154, C.C.A.
79. [1957] 2 Q.B. 396.
80. 3 F. & F. 520, 522.
81. (1862) 3 F. & F. 287, 288.
82. 1 F. & F. 88, 89.
83. (1818) Russ. & Ry. 362, C.C.A.
84. (1960) The Times , May 17, p. 8.
85. 16 Cox C.C. 306.
86. [1956] 1 Q.B. 351.
87. 7 Cr.App.R. 140, 144.
88. Ibid. 142.

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89. [1935] A.C. 462, 481–482; 51 T.L.R. 416; 25 Cr.App.R. 72, H.L.
90. 22 Cox C.C. 635–636.
91. 31 Cr.App.R. 35.
92. [1947] K.B. 997, 1004.
93. 38 Cr.App.R. 107.
94. [1956] 1 Q.B. 351.
95. [1957] 2 Q.B. 664, 670.
96. 16 Cox C.C. 306.
97. 31 Cr.App.R. 45.
98. [1954] Crim.L.R. 216.
99. Ante, p. 300.
100. (1950) 66 T.L.R. (Pt. 1) 735, 738, C.A.
101. [1951] V.L.R. 346, 356–357.
102. 13 Cr.App.R. 134.
103. (1874) 13 Cox C.C. 75, 76.
104. (1942) 28 Cr.App.R. 131, 134–135, C.C.A.
105. [1935] A.C. 462, 480–482.
106. 7 Cr.App.R. 140.
107. [1920] A.C. 479, 503.
108. (1830) 4 Cox C.C. 455.
109. (1873) 12 Cox C.C. 444.
110. 16 Cox C.C. 306.
111. 22 Cox C.C. 635.
112. 13 Cr.App.R. 134.
113. [1920] A.C. 479, 499.
115. [1946] A.C. 588, 598; 62 T.L.R. 460; [1946] 2 All E.R. 124, H.L.
116. [1954] Crim.L.R. 60.
117. [1954] Crim.L.R. 216.

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118. [1956] 1 Q.B. 351.
119. [1957] 2 Q.B. 664.
120. 1 F. & F. 88.
121. Russ. & Ry. 362.
122. [1957] 2 Q.B. 664.
123. 3 F. & F. 520.
124. 3 F. & F. 287.
125. 7 Cr.App.R. 140.
126. [1935] A.C. 462, 482.
127. 66 T.L.R. (Pt. 1) 735, 738.
128. 22 Cox C.C. 635.
129. 7 Cr.App.R. 140.
130. 35 Cr.App.R. 141, 146.
131. [1954] Crim.L.R. 60.
132. [1956] 1 Q.B. 351.
133. [1920] A.C. 479.
134. Ante , p. 302; [1960] 2 All E.R. 451.
135. (1877) 13 Cox C.C. 550, 561–562.
136. (1911) 22 Cox C.C. 635, 636.
137. (1912) 7 Cr.App.R. 140, 141, C.C.A.
138. 7 Cr.App.R. 140, 143–144.
139. [1920] A.C. 479; 36 T.L.R. 379, H.L.
140. [1909] 1 K.B. 895; 25 T.L.R. 359, C.C.A.
141. [1920] A.C. 479, 503–504.
142. [1909] 1 K.B. 895.
143. [1956] 1 Q.B. 351, 356; [1956] 2 W.L.R. 423; [1956] 1 All E.R. 565; 40
Cr.App.R. 1, C.C.A.
144. (1862) 3 F. & F. 520.
145. Ibid. 522.
146. [1947] K.B. 997, 1004; 63 T.L.R. 403; [1947] 1 All E.R. 813; 32 Cr.App.R. 61,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
C.C.A.
147. Ante, p. 300.
148. (1950) 66 T.L.R. (Pt. 1) 735, 738, C.A.
149. [1956] 1 Q.B. 351, 356.
150. (1858) 1 F. & F. 88.
151. (1818) Russ. & Ry. 362, C.C.R.
152. [1957] 2 Q.B. 664; [1957] 3 W.L.R. 326; [1957] 2 All E.R. 741; 41 Cr.App.R.
189, C.C.A.
153. [1951] V.L.R. 346, 357.
154. 1 F. & F. 88.
155. [1957] 2 Q.B. 664.

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Page 1 Tuesday, October 24, 2023

[1961] A.C. 290

DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT; AND SMITH RESPONDENT.

Crime Homicide — Intention to kill or cause grievous bodily harm — Presumption of

Presumption — Intention — Natural and probable consequence of acts — Homicide. —

Held , that there was no misdirection by the trial judge.

Panic is no defence. It does not go to intent.

Clarke Q.C. was not called upon to reply.

take into account the actual intention of a feebleminded accused.)

It is permissible to ask the accused whether he intended to kill or do grievous bodily

The summing-up was wrong in law in three respects:

The distinction defined between murder and manslaughter in Reg. v. Vamplew 80 is

to life in the mind of the man charged.

In considering the possibilities of murder or manslaughter the court should consider

As to the meaning of “grievous bodily harm,” it cannot be suggested that it includes

Their Lordships took time for consideration.

care in civil cases is ascertained. In judging of intent, however, it really denotes an

LORD TUCKER. My Lords, I also agree.

LORD DENNING. My Lords, I agree.

LORD PARKER OF WADDINGTON. My Lords, I also agree.

Solicitors: Director of Public Prosecutions; Prothero & Prothero.

2. (1862) 3 F. & F. 520.

4. (1887) 16 Cox C.C. 306.

5. (1887) 16 Cox C.C. 311.

6. (1911) 22 Cox C.C. 635.

7. (1940) 28 Cr.App.R. 1, C.C.A.

8. (1945) 31 Cr.App.R. 35, C.C.A.

10. (1954) 38 Cr.App.R. 107, C.C.A.

11. [1954] Crim.L.R. 216, C.C.A.

12. [1956] 1 Q.B. 351.

13. [1957] 2 Q.B. 664.

14. [1956] 1 Q.B. 351.

15. 22 Cox C.C. 635.

16. [1956] 1 Q.B. 351.

17. 16 Cox C.C. 306.

18. [1954] Crim.L.R. 216.

19. [1957] 2 Q.B. 664.

20. [1956] 1 Q.B. 351.

21. [1957] 2 Q.B. 664.

23. (1862) 3 F. & F. 287.

24. [1954] Crim.L.R. 216.

25. 22 Cox C.C. 635.

26. [1956] 1 Q.B. 351.

27. [1947] K.B. 997.

28. [1956] 1 Q.B. 351.

32. [1947] K.B. 997, 1004.

34. [1947] K.B. 997.

35. [1954] Crim.L.R. 216, C.C.A.

36. [1956] 1 Q.B. 351.

38. [1957] 2 Q.B. 664.

39. Ibid. 670.

43. (1912) 7 Cr.App.R. 140, C.C.A.

44. [1956] 1 Q.B. 351, 355–356.

45. [1954] Crim.L.R. 216, C.C.A.

46. (1937) 8 C. & P. 115, 116.

47. (1911) 22 Cox C.C. 635, 636.

48. (1918) 13 Cr.App.R. 134, C.C.A.

50. (1954) 38 Cr.App.R. 107, C.C.A.