R v Hyam (Hyam v Director of Public Prosecutions)

The mens rea for murder is assessed subjectively. A person who deliberately acts while actually knowing that death or really serious bodily harm is highly probable may possess malice aforethought, although causing that consequence is not the person’s desired object.

On the narrow basis commanding a majority, liability arose because the accused deliberately exposed potential victims to a serious risk which she actually appreciated. The act must be aimed at a person, but the person killed need not be the intended victim. Grievous bodily harm means really serious injury; the majority declined to restrict it to injury likely to endanger life.

The appellant deliberately poured petrol through the letter box of an occupied house and ignited it. Her stated object was to frighten the householder, but two children died from asphyxia. A jury convicted her of murder after being directed that the necessary intent was established if she knew serious bodily harm was highly probable.

The Court of Appeal (Criminal Division) dismissed her appeal in [1974] Q.B. 99, while expressing reluctance, and certified whether malice aforethought is established by proof that the accused knew the fatal act was highly probable to cause death or serious bodily harm. The Crown did not rely upon the statutory proviso. The House therefore had to determine whether the direction correctly stated the subjective mental element of murder.

1. By a majority of three to two, the appeal was dismissed. Lord Hailsham of St Marylebone, Viscount Dilhorne and Lord Cross of Chelsea upheld the murder convictions. Lord Diplock and Lord Kilbrandon would have allowed the appeal and substituted manslaughter.

2. Viscount Dilhorne and Lord Cross concluded that actual knowledge that the act would probably cause death or grievous bodily harm constituted malice aforethought. Lord Cross considered the direction favourable to the appellant because it required the consequence to be “highly” probable. A desired object of frightening the victim did not prevent the accused from possessing the requisite mens rea.

3. Lord Hailsham drew a distinction between foresight and intention. Foresight of a highly probable consequence is evidence from which intention may be inferred, rather than intention itself. Nevertheless, a person who actually appreciates a serious risk of death or really serious injury and, without lawful excuse, deliberately exposes a potential victim to that risk regardless of the outcome has an intention sufficient for murder. On the facts, the further inference from actual foresight to that form of intention was unavoidable.

4. The majority treated the test as subjective. The relevant question concerned the actual accused’s knowledge and state of mind, not what a reasonable person would have foreseen. Section 8 of the Criminal Justice Act 1967 had displaced the objective aspect of Director of Public Prosecutions v Smith [1961] A.C. 290.

5. Lord Hailsham and Viscount Dilhorne accepted that an intention to cause grievous bodily harm remains sufficient for murder. Grievous bodily harm means really serious injury and is not confined to injury likely to endanger life. Lord Cross declined to reopen that rule without full argument.

6. Lord Diplock and Lord Kilbrandon dissented. They considered that, absent an intention to kill, murder should require an intention or willingness to cause injury known to be likely to endanger life. They would have departed from Reg v Vickers [1957] 2 Q.B. 664 and the corresponding part of Smith. Because the jury direction referred more broadly to serious bodily harm and the proviso was not invoked, they would have substituted manslaughter.

1. House of Lords: By a majority of three to two, dismissed the appeal and affirmed the murder convictions reported at [1974] Q.B. 99.
2. Court of Appeal (Criminal Division): Dismissed the appeal, not without reluctance, but certified a point of law of general public importance and granted leave to appeal.
3. Trial: Following a jury trial, the appellant was convicted by an eleven-to-one majority of murdering two children. Her pleas of guilty to manslaughter had not been accepted.