Hyam v DPP [1975] AC 55

Mrs Hyam poured petrol through Mrs Booth’s letterbox and ignited it, knowing it was highly probable serious harm would result. Two children died. The House of Lords held that such knowledge and deliberate exposure to serious risk constituted malice aforethought, upholding her murder convictions.

Facts

The appellant, Mrs Hyam, had been in a long-standing sexual relationship with Mr Jones. After their relationship ceased she became jealous of Mrs Booth, whom she believed Mr Jones intended to marry. She sought to break up that association and was aware that Mrs Booth’s decree nisi would soon be made absolute, leaving her free to marry Mr Jones.

In the early hours of 15 July 1972, at about 2 a.m., the appellant drove a van to Mrs Booth’s house in Coventry. On the way she passed Mr Jones’s house and, seeing lights on, concluded he was at home; she did this, she said, because she did not want to harm him. She parked the van around the corner from Mrs Booth’s house, took a can containing about a gallon of petrol, and poured roughly half a gallon through Mrs Booth’s letterbox. She then stuffed newspaper into the letterbox and lit it.

The petrol ignited, starting a serious fire. The house contained Mrs Booth and her three children, a son and two daughters. Mrs Booth and the boy escaped through a window, but the two girls died from asphyxia due to fumes from the fire. The appellant drove away without raising any alarm.

Her account was that she acted only to frighten Mrs Booth into leaving the neighbourhood and did not intend to kill or cause grievous bodily harm. She pleaded guilty to manslaughter but was tried for murder of the two girls and convicted by an eleven to one majority verdict.

Issues

The principal legal issue concerned the mental element required for murder, and specifically whether malice aforethought is established where the accused, in doing the act causing death, knows it is highly probable that death or serious bodily harm will result, even if death or serious harm is not the accused’s desired objective.

The question certified by the Court of Appeal as one of general public importance was:

“Is malice aforethought in the crime of murder established by proof beyond reasonable doubt that when doing the act which led to the death of another the accused knew that it was highly probable that that act would result in death or serious bodily harm?”

Further issues arose as to:

• whether intent to cause grievous bodily harm (GBH) remains sufficient for murder after the Homicide Act 1957;
• whether knowledge of a high probability of death or GBH is itself an alternative form of malice aforethought or simply evidential of intent;
• the proper interpretation of “grievous bodily harm” in the context of murder; and
• the impact of the Criminal Justice Act 1967, section 8, and prior authority such as Director of Public Prosecutions v Smith and Reg v Vickers.

Judgment

Trial Direction

Ackner J directed the jury that:

“The prosecution must prove, beyond all reasonable doubt, that the accused intended to (kill or) do serious bodily harm to Mrs. Booth, the mother of the deceased girls. If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm, then the prosecution will have established the necessary intent. It matters not if her motive was, as she says, to frighten Mrs. Booth.”

The jury were advised to concentrate on intent to cause serious bodily harm rather than intent to kill. Their verdict implies they were satisfied that, when setting the fire, the appellant knew it was highly probable that serious bodily harm would result.

Majority Opinions (Lord Hailsham, Viscount Dilhorne, Lord Cross)

Lord Hailsham of St Marylebone

Lord Hailsham identified the central question as whether, for murder, it is enough that an accused intends wilfully to expose another to the risk of death or really serious injury, as opposed to intending actually to kill or cause such injury. He distinguished between motive and intention, and between foresight and intention, emphasising that foresight is evidential of intention but not identical to it.

He endorsed the established definition of murder as killing with intent to kill or to cause grievous bodily harm in the sense of really serious injury, referring to Reg v Vickers and the clarification in Director of Public Prosecutions v Smith that “grievous bodily harm” means “really serious” bodily harm. He accepted the subjective test of intention and foresight under section 8 of the Criminal Justice Act 1967.

Lord Hailsham rejected the proposition that mere knowledge that death or serious harm is highly probable, without more, is itself intention. However, he reasoned that where a defendant, knowing that a course of conduct involves a serious risk of death or really serious injury, deliberately pursues that course without lawful excuse and regardless of whether those consequences occur, the defendant intends to expose the victim to that risk. He treated such an intention as sufficient for murder, stating that two types of intention are morally indistinguishable: directly intending death or really serious injury, and intending to expose another to a serious risk of those consequences with actual appreciation of the risk.

He concluded that, on the facts, once it was accepted that the appellant was subjectively aware of the danger to the sleeping occupants, her deliberate act of setting the fire and leaving without raising any alarm necessarily involved an intention to expose them to the risk of death or really serious injury, and thus satisfied the mental element for murder. He therefore proposed a series of propositions, summarising that murder requires an act aimed at someone, done with one of three intentions, tested subjectively:

(i) The intention to cause death;
(ii) The intention to cause grievous bodily harm in the sense of that term explained in Smith, at p. 335, i.e., really serious injury;
(iii) Where the defendant knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as the result of those acts.

Without one of these forms of intention, he considered that knowledge alone that grievous bodily harm is likely or highly likely is insufficient to make a homicide murder. On that analysis, he held that the appeal should be dismissed.

Viscount Dilhorne

Viscount Dilhorne noted that the jury must be taken to have found that the appellant knew it was highly probable serious bodily harm would be caused when she set fire to the house, and that she acted deliberately and intentionally.

He reviewed historic authorities, in particular Sir James Stephen’s article 223 of the Digest of Criminal Law, which defined malice aforethought as encompassing both (a) an intention to cause death or grievous bodily harm, and (b) knowledge that the act causing death will probably cause death or grievous bodily harm, even if accompanied by indifference or a wish that the harm may not occur. He cited the Royal Commission on Capital Punishment’s endorsement of this statement, including its fifth proposition that:

“(v) It is murder if one person kills another by an intentional act which he knows to be likely to kill or to cause grievous bodily harm, … and may either be recklessly indifferent as to the results of his act or may even desire that no harm should be caused by it.”

He accepted that such knowledge had long been recognised as amounting to malice aforethought. While acknowledging debate over whether this knowledge itself establishes intention, he was inclined to agree that a person who acts deliberately, knowing it is highly probable grievous bodily harm will result, can properly be said to intend grievous bodily harm, whatever other purposes he may have.

Viscount Dilhorne rejected the argument that, after the Homicide Act 1957 abolished constructive malice, an intent to cause grievous bodily harm ceased to suffice for murder. Reviewing earlier authorities, he concluded that killing with intent to do grievous bodily harm had “for many years” been treated as murder independently of the doctrine of constructive malice. He held that Reg v Vickers was rightly decided and that this House was right in approving it in Director of Public Prosecutions v Smith.

On the meaning of “grievous bodily harm”, he endorsed the view in Smith that the expression bears its ordinary and natural meaning and is not confined to harm likely to endanger life. He rejected the contention that grievous bodily harm meant or should be read as harm likely to cause death.

He saw no reason for the House to depart from its earlier decision in Smith on these aspects and considered that any narrowing of the definition of murder to cases of bodily injury known to be likely to cause death was a matter for Parliament. Accordingly, he concluded that the certified question should be answered affirmatively and that the appeal should be dismissed.

Lord Cross of Chelsea

Lord Cross approached the case on the basis that the jury accepted the appellant’s motive, in the sense of her desired end, might simply have been to frighten Mrs Booth away from Coventry, but found that she knew it was highly probable that death or serious bodily harm would result from setting the fire.

He treated the key question as whether subparagraph (b) of Stephen’s article 223 correctly states the law, namely that “knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person …” constitutes malice aforethought.

He reasoned that if an intention to kill, in the strict sense, is murder, then doing an unlawful act with knowledge that it may well cause death ought also to be murder. Referring to Cockburn C.J.’s summing up in Reg v Desmond, he agreed that knowledge or belief that life is likely to be sacrificed by the act suffices. Further, given that an intention to cause grievous bodily harm is malice aforethought, he considered it right that doing an act with knowledge that it may well cause grievous bodily harm should likewise constitute malice aforethought, even if the accused does not realise that life may thereby be endangered.

Lord Cross recognised that some argue Stephen’s four categories of malice aforethought should be reduced to two (intention to kill and willingness to endanger life). He noted that adopting that view would require overruling Reg v Vickers and part of Director of Public Prosecutions v Smith, which he was not prepared to do without full argument, particularly given potential repercussions for many murder convictions based on the accepted Vickers direction. Proceeding on the footing that Vickers was rightly decided, he held that the proper answer to the certified question was “Yes” and that the appeal should be dismissed.

Minority Opinions (Lord Diplock, Lord Kilbrandon)

Lord Diplock

Lord Diplock considered that, since the Homicide Act 1957 abolished constructive malice, murder is now distinguished from manslaughter by requiring a mental element that includes the accused’s attitude not only to his physical act but also to a particular evil consequence of that act. He identified two questions: the nature of the attitude of mind (mens rea) required, and the particular evil consequence towards which it must be directed in murder.

On the first, he agreed that, in crimes where intent as to consequences is required, there is no distinction between the state of mind of one who acts desiring a particular evil consequence and one who acts knowing full well that it is likely, both being characterised by willingness to produce that consequence.

On the second, he argued that, intellectually and morally, murder ought to be limited to cases where the consequence desired or foreseen as likely is the death of a human being. He examined the historical development of the law, distinguishing between “actual malice” (attitude towards inflicting bodily injury) and “constructive malice” (circumstances making a killing murder regardless of actual intention).

He analysed the emergence of the phrase “grievous bodily harm” from Lord Ellenborough’s Act and its construction in non‑homicide statutes, and showed how, through constructive malice, intention to cause such harm became sufficient for murder. After the 1957 Act abolished constructive malice, he considered that the courts were compelled to determine afresh the content of “actual malice” for murder, taking into account both historical materials and contemporary concepts of justice and humanity.

He noted that successive law reform bodies and jurists had favoured defining murder by an intention to kill or to cause bodily injury known to be likely to endanger life. He concluded that the part of Director of Public Prosecutions v Smith which treated an intention to cause “really serious bodily harm” (in the statutory sense) as sufficient for murder was wrong, and that the relevant evil consequence in murder should be death or an endangerment of life, not serious injury as such.

Given the House’s power to depart from its own precedents, he would have corrected Smith and held that, for murder, the accused must intend to kill or to cause bodily injury which he knows is likely to endanger life. On that footing, he considered that Ackner J, following Smith, had stated the evil consequence too broadly by directing the jury in terms of death or serious bodily harm. As the respondent did not rely on the statutory proviso, he would have allowed the appeal and substituted a verdict of manslaughter.

Lord Kilbrandon

Lord Kilbrandon agreed with Lord Diplock that killing with intention to cause grievous bodily harm is murder only if “grievous bodily harm” means injury likely to cause death. In his view, where there is no intention to kill, the jury must be satisfied that the accused knew death was a likely consequence of the act and was indifferent whether it occurred. He regarded this fresh definition of the required intention for murder, beyond an intention to kill, as necessarily following from the Homicide Act 1957, and thus considered it proper for the House to declare the common law basis rather than leave the matter solely to Parliament.

He observed that this would accord with the common law of Scotland, where constructive malice had never formed part of the law of murder. He expressed concern at the complexity and technicality surrounding the distinction between murder and manslaughter, suggesting that, once the death penalty had been abolished, there was no longer a sound reason to maintain that distinction. He suggested that both offences could be replaced by a single crime of unlawful homicide, with differences in gravity reflected in sentencing, and remarked that the present case, even if classified as manslaughter, displayed extreme cold‑blooded cruelty exceeding that in many impulsive homicides currently classed as murder.

Because he considered the trial judge’s crucial passage inconsistent with the common law as properly understood and the proviso was not relied on, he concluded that the appeal should be allowed.

Implications

The House of Lords, by a majority, upheld the appellant’s convictions for murder and confirmed that:

• intent to cause grievous bodily harm (understood as really serious bodily harm) remains sufficient to constitute malice aforethought for murder, notwithstanding the abolition of constructive malice by the Homicide Act 1957;
• knowledge that death or grievous bodily harm is highly probable can, in appropriate circumstances, establish the requisite intent, either because it evidences an intention to cause such harm or because it establishes an intention to expose the victim to a serious risk of such consequences;
• the test of intention and foresight is subjective, focusing on the accused’s actual state of mind, as required by section 8 of the Criminal Justice Act 1967; and
• “grievous bodily harm” should be given its ordinary meaning of “really serious” bodily harm, not confined to harm likely to endanger life.

The case exposes a significant division within the appellate judiciary. The majority maintained and rationalised the broader traditional scope of malice aforethought, while the minority advocated a narrower definition limiting murder to cases involving an intention to kill or to cause bodily injury known to be likely to endanger life, and questioned the continuing coherence of the murder/manslaughter distinction after abolition of the death penalty.

Practically, the decision confirms that a defendant who deliberately sets in train a dangerous course of conduct, knowing it poses a serious risk of death or really serious injury to others and proceeding without lawful excuse or regard for whether that risk eventuates, may be convicted of murder if death ensues. It provides authoritative guidance on directing juries in arson‑related and other high‑risk conduct cases and consolidates earlier authority, particularly Reg v Vickers and aspects of Director of Public Prosecutions v Smith, concerning the mental element in murder.

Verdict: Appeal dismissed; convictions for murder upheld.

Source: Hyam v DPP [1975] AC 55