R v Cunningham

A person commits murder where an unlawful killing results from an act done with a subjective intention either to kill or to cause grievous bodily harm. Grievous bodily harm means really serious bodily harm. The prosecution need not prove that the accused intended to endanger life or appreciated that death was probable.

The abolition of constructive malice by the Homicide Act 1957 did not abolish the established rule that an intention to cause grievous bodily harm supplies the malice aforethought required for murder.

The appellant repeatedly struck the victim, including with a chair or part of a chair while the victim lay defenceless. The victim died from the resulting head injuries. The appellant denied intending to kill but the evidence permitted the jury to find that he intended really serious bodily harm.

Lawson J directed the jury that such an intention was sufficient for murder. The Court of Appeal (Criminal Division) dismissed the appeal but certified whether a person is guilty of murder by unlawfully killing another while intending grievous bodily harm. The House of Lords granted leave to appeal.

1. Appeal dismissed unanimously. The certified question was answered affirmatively and the order of the Court of Appeal was affirmed.

2. Per Lord Hailsham LC, with whose speech Lord Wilberforce, Lord Simon, Lord Edmund-Davies and Lord Bridge agreed, an unlawful killing is murder where the accused subjectively intended either to kill or to inflict grievous bodily harm. Grievous bodily harm means really serious bodily harm. Lawson J had therefore directed the jury correctly.

3. Per Lord Hailsham LC, the Homicide Act 1957 abolished constructive malice but retained the established category conventionally called implied malice. English law had treated an intention to cause serious harm as sufficient malice aforethought before Lord Ellenborough’s Act of 1803. The nineteenth-century offence of felonious wounding therefore supplied no historical basis for limiting murder to an intention to kill or endanger life.

4. Per Lord Hailsham LC, R v Vickers [1957] 2 QB 664 correctly stated the law. Its endorsement in DPP v Smith [1961] AC 290 and Hyam v DPP [1975] AC 55 was also correct. The competing proposition in Lord Diplock’s dissent in Hyam, which would require an intention to kill or endanger life, was rejected. That formulation would be uncertain and practically unworkable because juries would have to distinguish an intention to cause really serious injury from an intention to expose the victim to probable death.

5. Lord Edmund-Davies added that, although he favoured restricting murder to an intention to kill as a matter of reform, the competing policy arguments were for Parliament. The especial need for certainty in criminal law also required caution in using the 1966 Practice Direction on precedent. No departure from the established authorities was justified.

1. House of Lords: The appeal was dismissed unanimously. The certified question was answered affirmatively and the Court of Appeal’s order was affirmed.
2. Court of Appeal (Criminal Division): Lord Lane CJ, Boreham J and Ewbank J dismissed the appeal against conviction on 4 December 1980. The court refused leave to appeal but certified a point of law of general public importance.
3. Crown Court: Lawson J directed the jury that an intention to cause really serious harm was sufficient for murder. The appellant was convicted of murder on 18 February 1980.