Letter of the Law
Constructive Malice
By H. A: CLINE THE doctrine of constructive malice has long bedevilled the English law of murder, con- fusing not only juries but judges as well. A man , who intentionally kills without lawful justifica- tion is a murderer, and to this simple proposition the man in the street would give his ready assent. But what about the man who deliberately inflicts grievous bodily harm which will probably cause death? Is he to be acquitted of murder if he satisfies a jury that he did not realise the probable consequences of his act even if a reasonable man would have done? Or is the jury to be concerned only with what a reasonable man would have realised, ignoring the actual state of mind of the accused at the time of the act? Upon the answer to this a man's life may depend.
The tragic confusion into which the law on constructive malice has fallen was spotlighted by the recent case of the scrap-dealer Smith. In an attempt to escape from a police officer, Smith accelerated his car, to which the officer was clinging, and finally shook him off so that he fell in front of another car and received fatal in- juries. Now, it was. never suggested that Smith meant to kill the officer, with whom in fact he was on friendly terms. But Mr. Justice Donovan in his direction to the jury had called their atten- tion to the legal principle that a man is presuined to intend the natural and probable consequences of his acts. The Judge applied what is called the objective test, namely the test of what a reason- able man would contemplate as the probable result of his acts and therefore would intend. The accused complained to the Court of Criminal Appeal that this was not the correct test. The proper question for the jury was what Smith himself intended, however unreasonably—the sa- called subjective test.. The appellate court upheld the complaint and the threat of hanging accord- ingly receded. But the Attorney-General took the case to the House of Lords who restored Smith's conviction of capital murder. Their Lordships gave short shrift to the legal presumption as to intention. 'It is only apt to confuse juries,' and apparently more learned tribunals. In its place stood the reasonable man and what he would have contemplated if he had been at the wheel in Smith's place.
The fact that, though finally guilty of capital murder, Smith is to be reprieved does nothing to diminish one's regret that Parliament failed to accept the recommendations made to the Royal Commission on Capital Punishment over a de- cade ago by—among others—Gerald Gardiner, KC (now chairman of the Bar Council), and Terence Donovan, KC (as he then was): We regard it as both unnecessary and un- desirable that murder for which the punishment is death should extend to cases of unintentional homicide. We believe that our view accords with what the ordinary member of the public believes murder to be. . . . Murder should be limited to cases in which the accused intended to kill some- one. We do not think that juries, under the sort of direction they arc likely to receive from Judges, would be slow to find such intention in any case in which it ought to be found, as for example where a man kills someone while in- flicting grievous bodily harm of a kind which was known to be likely to cause death. If he did not in fact intend to cause death, we do not think he ought to be convicted of murder.
Confronted with a doubtfully worded statute, the Courts have often invoked the rule that the Legislature must be taken to have used the word or phrase in question in the sense attributed to it by earlier judicial decisions. In, other words, our a legislators are assumed to be aware of existing laws and the judicial interpretation of those laws. If this can be described as a presumption, it is certainly a rebuttable one; indeed the rule is beginning to wear a little thin.
Take as an example the case of Buxton v. Minister of Housing which came before Mr. Justice Salmon last week. A company sought permission from its local authority to dig chalk on its own land. The permission was refused; the company appealed to the Minister, who appointed an inspector to hold an inquiry. Mr. Buxton and others appeared at that inquiry and opposed the company's application. The inspector recom- mended that the company's application be dis- missed on the grounds that there was a likelihood of damage being done to neighbouring land (which no doubt included Mr. Buxton's pro- perty) by the chalk dust, and that in any case there was no shortage of chalk in the locality. The „Minister, despite the inspector's report, granted permission and so Mr. Buxton carried his opposition to the High Court. He asked the Court to set aside the Minister's decision under a provision of the Town and Country Planning Act, 1947.
The Minister took the preliminary objection that Mr. Buxton had no locus standi, no right to go to the Court; only `persons aggrieved by any action on the part of the Minister' had the right under the Act to apply and Mr. Buxton was not an `aggrieved person' in the sense in which that term had come to be judicially interpreted. The Judge upheld the Minister's view but not without a strong protest. He repeated the wordi of the Lord Chief Justice in an earlier case on the same phrase : `I would like to voice a protest that Parliament continues to allow these words to come into Act after Act of Parliament.'
Clearly in any ordinary sense Mr. Buxton was aggrieved. He had spent large sums of money on his land and on his piggeries and his annoy- ance was very natural, as the Judge pointed out. But a nineteenth-century decision had laid it down that a person aggrieved must be a man who had suffered a legal grievance, a man against whom a decision had been pronounced which had wrongfully deprived him of something or wrongfully affected his title to something. Per- haps the Legislature may one day find the time to rectify this misleading phrase and avoid further grievances.
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