EXCERPT from Law Commission's "Report to the Right Honourable The Lord Gardiner, Lord High Chancellor of Great Britain, 1967."

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 4. The main issues raised by the decision of the House of Lords [in D.P.P. v. Smith] appear to be the following:

 (a ) Where murder is alleged, should the jury be bound to infer the intent to kill or to inflect grievous bodily harm, which is under the present law necessary for a killing to amount to murder, if "an ordinary man capable of reasoning . . . would in the position of the alleged murderer have foreseen death or grievous bodily harm as the natural and probable consequence of his act"? Alternatively, should the requirement of intent necessitate proof of the actual intent of the person alleged to have committed murder, and should the natural and probable consequence of his act only provide a basis from which such intent may he inferred? The first alternative, which would appear to have been approved by the House of Lords in D.P.P. v. Smith, may for convenience he called the "objective" approach to intent; the second may be called the "subjective" approach.

 (b ) Apart from its application to intent in murder should the objective or subjective approach to intent, or, where relevant, to foresight, be adopted in the criminal law generally?   . . .

 (c ) Should the requirement of intent in murder, whether ascertained subjectively or objectively, he satisfied by either an intent to kill or an intent to inflict grievous bodily harm? . . .

 

 B. THE OBJECTIVE AND SUBJECTIVE TESTS OF INTENT IN MURDER

 5. The Royal Commission on Criminal Law of 1834 in its 7th Report (Parliamentary Papers 1843, vol. XIX: Command Paper 448) at p. 23 stated:

The degrees of likelihood or probability being in truth infinite, it is clear that no assigned degree of likelihood or probability that an injurious consequence will result from any act can serve as a test of criminal responsibility. Such a degree of likelihood or probability admits of no legal mode of ascertainment, and it would, if capable of being ascertained, afford no proper test of guilt, for it is not the precise degree of likelihood or probability in such cases, but the knowledge or belief that the thing is likely or probable which constitutes the mens rea, although the greater or less degree of probability may afford important evidence as to the real intention of the party.

Over a hundred years later the Royal Commission on Capital Punishment, 1949-1953 (1953, Cmd. 8932) at paragraph 107 formulated the same principle in stating that:

Persons ought not to be punished for the consequences of their acts which they did not intend or foresee.

It was on this basis that they recommended the abolition of "constructive malice" which was subsequently effected by s. 1 of the Homicide Act 1957.

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  [T]hat in a case of murder there is an irrebuttable presumption that a man intends the natural and probable consequences of his actions . . . is subject to the same objection as that which persuaded the legislature to abolish "constructive malice," namely the undesirability of satisfying as a matter of law the requirement of intent in murder by reference to factors which may be at variance with the actual state of mind of the accused.

  7. Furthermore, we think that there should not be even a rebuttable presumption in murder that a man intends the natural and probable consequences of his actions. Such a presumption would imply as a matter of law: (a ) that, once the prosecution has shown that death or grievous bodily harm is the natural and probable consequence of the actions of the accused, the onus shifts to him to show on a balance of probabilities that he did not intend such consequence; and (b ) that, if the accused is not able to prove on a balance of probabilities that he did not intend the natural and probable consequences of his actions, the jury must find that he had such an intent. In our view any rebuttable presumption of this kind would be inconsistent with the underlying principle of the criminal law enunciated by the House of Lords in Woolmington v. D.P.P. [1935] A.C. 462, and in particular with two passages in Lord Sankey's speech (with which Lord Atkin, Lord Hewart C.J., Lord Tomlin and Lord Wright concurred). Lord Sankey said:

  Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to . . . the defence of insanity and . . . any statutory exception. (p. 481)

He also said:

  If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on to the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. (p. 480)

 . . . We fully appreciate that in many cases the inference of intent to he drawn from the natural and probable consequences of an act may as a matter of common sense and experience be very strong; and in such cases it would be open to the judge in his summing up so to instruct the jury. In other words, the inferences as to a man's intent to be drawn from the natural and probable consequences of his actions should be permissible only; they should not be mandatory, either in a conclusive or qualified sense.

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 13. The main arguments in favour of retaining the intent to inflict grievous bodily harm as an alternative to the intent to kill in murder are as follows:
 

 (a ) It is in accord with the general sense of justice of the community that a man who causes death by the intentional infliction of grievous bodily harm, although not actually intending to kill, should not only be punished as severely as a murderer. but should be treated in law as a murderer.

 (b ) Grievous bodily harm is a relatively simple concept which can be readily explained to a jury. Any attempt to define "grievous bodily harm" as, for example, "harm likely to endanger life," or further to require that the accused should know that the harm inflicted is likely to endanger life, would make the judge's direction more difficult for the jury to follow.

 (c ) It is true that, with the suspension of the death sentence, a person who kills while intending to inflict grievous bodily harm could, if such an offence were only manslaughter, receive as a maximum the same sentence, namely life imprisonment, as that which would remain obligatory for murder. But the judge might face practical difficulties in such a case of manslaughter in ascertaining the intent to inflict grievous bodily harm, which he would require to know in order to fix the appropriate sentence. These difficulties would be most acute if the prosecution had accepted pleas of not guilty of murder but guilty of manslaughter, when the judge would have to rely on the depositions; but they would also exist to some extent where the accused had been tried on a count of murder but had been found guilty of manslaughter, in which event the judge would have heard the evidence in the case, but would have no verdict of the jury on the question whether the killing followed an act intended to inflict grievous bodily harm. Admittedly, it would be possible to overcome these particular difficulties by the creation of a specific type of manslaughter of causing death by an act intended to inflict grievous bodily harm, but such a new offence would further complicate the already very involved law of homicide.

 (d ) To eliminate the intent to inflict grievous bodily harm from the intent to kill in murder would encourage the ruthless criminal who kills in the furtherance of some purpose other than killing and, it may be said, does not intend to kill, but only to inflict such grievous bodily harm as will enable him to carry out that purpose.

  14. It should be added that it is possible to admit that the present law relating to the intent to inflict grievous bodily harm in murder is unsatisfactory but at the same time to take the view that any change in the law should await a general review of the whole law of homicide, having regard particularly to the unsatisfactory state of the present law of manslaughter.

  15. The main arguments for changing the present law, which prescribes intent to inflict grievous bodily harm as an alternative to the intent to kill in murder, are as follows:

 (a ) Murder is commonly understood to mean the intentional killing of another human being; and. unless there are strong reasons which justify a contrary course, it is generally desirable that legal terms should correspond with their popular meaning.

 (b ) To limit intent in murder to the intent to kill is not to disregard the very serious nature of causing death by the infliction of grievous bodily harm, but, since the suspension of the death sentence, if such an offence were to be treated as manslaughter only, it could nevertheless be punished by a maximum penalty as severe as the penalty prescribed for murder, namely, imprisonment for life.

 (c ) If the intent to inflict grievous bodily harm is to be retained in the law of murder at all, it should at least he clear that the bodily harm referred to is harm likely to kill. Viscount Kilmuir in D.P.P. v. Smith, however, specifically declined to make a distinction between grievous bodily harm in its relation to intent in murder and in connection with the statutory offence of inflicting grievous bodily harm under s. 18 of the Offences Against the Person Act 1861 (in which latter context it is clear that it is not limited to bodily harm likely to kill). Thus at p. 334 Viscount Kilmuir said:
 

  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."
 
And at p. 335 he added:
 
  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 emphasize that the bodily harm must he 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.
 
 (d ) Furthermore, a man should not be regarded as a murderer if he does not know that the bodily harm which he intends to inflict is likely to kill. From the decision in D.P.P. v. Smith, however, it is not clear that the accused need know even that the harm was serious, let alone that it was likely to kill. If there is any special deterrent effect in the label "murder" as distinguished from manslaughter, it should be attached to an act done with intent to inflict bodily harm which the accused knows is likely to kill.

 (e ) If there are practical difficulties in determining what harm is likely to endanger life and in ascertaining the accused's knowledge of such likelihood, it does not follow that the present law must therefore remain unchanged. It may precisely for this reason be desirable to eliminate altogether the intent to inflict grievous bodily harm as an alternative to the intent to kill in murder.

 

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 (g ) The view that the intent to inflict grievous bodily harm, as an alternative to the intent to kill in murder, covers the case of the ruthless criminal who does not stop at killing in furtherance of some other purpose is too indiscriminate in its approach. A distinction must be made between the man who is not willing to kill, even if he intends to inflict grievous bodily harm which in fact results in death, and the man who is willing to kill, even if he hopes to avoid, or is indifferent whether he causes, death.

 . . .  [W]e think that the simplest, most practical and logical criterion, and the one which most closely accords with the underlying ethical assumptions of the criminal law, is the intent to kill. In our view the essential element in the intent to kill should be willingness to kill. Where it was a man's purpose to kill in any event, there can be no doubt about his willingness to kill; but where it was not his purpose to kill in any event, the essential question on a charge of murder should be whether, at the time when he took the action in fact resulting in death, he was willing by that action to kill in accomplishing some purpose other than killing. A man may hope that he will not kill, or he may be indifferent whether he kills or not, but if he is willing to kill, and does in fact kill, we think he should be guilty of murder.

  18. In reaching this conclusion we have had in mind the following considerations:

 (a ) So long as a distinction between murder and manslaughter is to he maintained, there must be a defensible criterion for distinguishing between them. In our view the essential element in murder should be willingness to kill, thereby evincing a total lack of respect for human life. A man who drives a car at an excessive speed down a crowded street, thereby killing a pedestrian, may know that by his reckless folly he runs the risk of killing that pedestrian, but, although he is aware of the risk, he may not be willing to kill him. He may be guilty of manslaughter because he has run an extreme risk; he is not guilty of murder if he was not willing to kill. On the other hand, it is desirable to bring within the definition of a murderer a man who . . . plants a powerful time-bomb in an aeroplane in order to blow it up in flight with the aim of recovering the proceeds of insurance on the cargo. Although he has a purpose other than killing (namely, the recovery of the insurance money) it is clear from the circumstances that at the time when he planted the bomb, he was willing to kill those in the aeroplane in accomplishing his purpose of recovering the insurance money. There will of course be cases (for example, the thief who to evade arrest shoots a pursuing policeman in the leg, as a result of which the latter subsequently dies) where the question of the accused's willingness to kill will be more difficult to decide. However, we think that the inquiry into the state of mind of a man accused of such a serious crime as murder must necessarily be a searching one and that its difficulties must he faced.

 (b ) There is much to be said for the replacement of the intent to inflict grievous bodily harm in murder by an intent to inflict bodily harm which the accused knows is likely to endanger life. This change admittedly would remove two undesirable elements in the present law. first, that it does not unequivocally require that the harm in question should be likely to endanger life; secondly, that it does not require that the accused should know that the harm is likely to endanger life. There are, however, serious practical objections to this solution. Any test of intent has ultimately to be applied by a jury. Whether bodily harm is - likely to endanger life depends not only on the seriousness of the injury inflicted but also on all the surrounding circumstances for example, whether or not it is inflicted in a place readily accessible to medical aid. it is difficult therefore for a jury to determine whether there was a likelihood, as opposed to a possibility, that life would be endangered; it is still more difficult for the jury to ascertain that the accused knew that the harm was likely to endanger life. Moreover, apart from its practical difficulties, we think that this solution is deficient in principle in that it would define intent in murder by reference to likelihood to kill rather than willingness to kill; it would fail to recognize that to inflict bodily harm, even knowing that life will be endangered, does not necessarily show willingness to kill.

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 20. . . . We recognize that some of those consulted would leave the law unchanged, and that most of those who would support change adopt a variety of solutions different from our proposal. We have had particularly in mind the objections of the judges of the Queen's Bench Division of the High Court to an earlier proposal which we made, and we have endeavoured to clarify it in the light of their and other criticisms. In that proposal we included in the intent to kill the state of mind of a man who both foresaw that he might and was prepared to kill. We recognize that the concept of "preparedness to kill" might be taken to apply only to a previously planned killing; we think that "willingness to kill" is not so limited in its application, while still emphasizing what we have made the central point of our proposal, namely, a total lack of respect for human life. And, in so far as a man cannot will in the abstract but must at least envisage the subject matter of his will, we consider that the reference to foresight was unnecessary and perhaps misleading, in laying too much emphasis on the likelihood of, rather than on the willingness to cause, death.

  21. We fully recognize the need to reconsider the law of homicide as a whole especially in view of the present uncertain state of the law of manslaughter. And we see considerable weight in the argument that our proposal, in so far as it might lead to the reclassification as manslaughter of certain cases which would now be murder, might be left until a general review of the law of homicide is undertaken. But we put forward our proposal as a first step in this process of review, believing that murder, as a type of homicide, should be confined to cases in which the accused, being willing to kill, has a total lack of respect for human life.

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LESLIE SCARMAN, Chairman

L. C. B. GOWER

NEIL LAWSON

NORMAN S. MARSH

ANDREW MARTIN

HUME BOGGIS-ROLFE, Secretary 12th December, 1966.

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Source: Goldstein, Dershowitz, and Schwartz, Criminal Law: Theory and Process (The Free Press (Macmillan Pub. Co.): 1974), pp. 786-791.