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Published online by Cambridge University Press: 02 January 2018
Twelve years ago, in Brutus u Cozens, the House of Lords held that the meaning of an ordinary word of the English language was not a matter of law for the judge, but a question off act for the jury. The way was opened to the argument that in the definition of criminal offences, the metes and bounds of criminal liability were themselves no longer matters of law, but matters off act for the jury. This would allow a judge, when giving his direction, to read a short sentence or two, and leave the jurors to form a largely untutored view of whether an offence had been committed. No matter that different juries would reach different conclusions on the same facts. No matter that there would be little opportunity for an appellate court to correct what it perceived to be an incorrect verdict.
1. [1973] AC 854. See Smith & Hogan, Criminal Law (5 edn), p 109.
2. Brutus v Cozens.
3. Feeb [1973] QB 530.
4. Caldwell [1982] AC 341, Lawrence [1982] AC 510.
5. [1985] 2 WLR 648.
6. [1975] AC 55.
7. See the cases listed as examples in nn 11, 12.
8. Lord Hailsham LC, Viscount Dilhorne, Lord Cross; Lords Diplock and Kilbrandon.
9. [1982] AC 566.
10. [1985] Crim LR 227.
11. Mohan [1976] QB 1, Pearman [1984] Crim LR 675.
12. Belfon [1976] 1 WLR 1.
13. Lord Bridge in Moloney seems to doubt that the line could be held. He regards any version of foresight of consequences as difficult to separate from other degrees of more or less probability. But in order to intend something it is necessary first to foresee the consequence, and so foresight is not something which has no part to play in the formation of intention.
14. [1977] AC 443.
15. [1982] AC 341.
16. [1985] 1 WLR 64.
17. [1957] 2 QB 664.
18. Yet if it were thought that the definition of murder were too wide, that part of the malice aforethought which allows intention to do gbh as sufficient seems appropriate to be repealed.
19. [1947] KB 997.
20. Or one of his intentions? Presumably a man can intend two things at once?
21. Presumably if he did not have this intention or level of foresight at the time he began to overtake, Miller [1983] 2 AC 161 would impose a duty to take steps to rectify the situation, and the failure to take these would be the guilty act.
22. [1961] AC 290. In manslaughter the requirement made a surprise appearance in Dalby [1982] 1 WLR 425, and an equally prompt disappearance in Mitchell [1983] QB 741. The rule served the purpose, both in Smith and in Lord Hailsham's judgment in Hyam of preventing the conviction of the reckless driver who saw there was a chance of his doing at least gbh, and who killed. With a mens rea requirement of intention to do an unlawful act to someone (Smith) or the intention to expose someone to a serious risk of gbh (Hailsham), this rule was needed to produce the desired result. But in Hyam the rest of their Lordships require the much more restrictive foresight of (a high degree of) probability, and so did not need the ‘aimed at’ rule to protect the motorist who was not in any case in jeopardy. Presumably that is why in Hyam only Lord Hailsham referred to it, and in Cunningham he did not.
23. And, even if this probability were not foreseen, under the test of Lord Hailsham in Hyam they might well be convicted, as persons who intend to expose their victims to a serious risk of death or gbh.
24. This is virtually identical to the test proposed by the Law Commission in its draft Criminal Law (Mental Element) Bill. See Law Com 89 (1978).