Clause 1. — (Abolition of "constructive Malice.")

Part of Orders of the Day — Homicide Bill – in the House of Commons at 12:00 am on 27 November 1956.

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Photo of Mr Reginald Paget Mr Reginald Paget , Northampton 12:00, 27 November 1956

With great respect, I have no intention of discussing it now, Sir Charles. I am merely indicating what, in my very humble opinion, the present law does, and what my Amendment would do, and indicating that it is not entirely easy to find out what the position is.

Perhaps the Committee will allow me to go back to the point at which I was interrupted. As I was saying, this is the law at present, according to Archbold and according to Russell, concerning malice aforethought express or implied. Neither book is able to give a particular definition as to which is express and which is implied, because there is great confusion in the authorities, but, as has been indicated, that will be gone into later.

Malice aforethought involves a variety of different intentions. First, there is the intention to kill the person killed. Then there is the intention to kill someone else. Third, there is intention not to kill but to do some serious injury. Fourth, there is an intention to commit a felony. Originally, an intention to commit a felony was certainly part of malice aforethought; so that if a man meant to steal, and accidently killed, that was murder. Later, the courts have said that it must be a felony which is, of its nature, likely to endanger life. If, therefore, a man intends to commit a felony which is likely to endanger life, that at present is malice aforethought.

Does that cease to be malice aforethought because of this Clause as at present drafted? I do not know. It is very difficult to say that, because malice aforethought is the intention to commit the offence, that is an intention, whether or not the intention is formed … in the course or furtherance of another offence. Subsection (2) would exclude a quite different type of case—where somebody is accidentally killed while an attempt is made to avoid arrest. That was denned by the Lord Chief Justice in his summing up in the trial of Craig and Bentley. The Lord Chief Justice then said: But, gentlemen, there is another and further consideration in this case to which I want to direct your particular attention. Miles, the dead man, was a police officer, and the law of the centuries—in fact, ever since there has been law in this country—has given special protection to police officers while in the execution of their duty, or perhaps it is more accurate to say that in the case of the killing of a peace officer—I use the expression 'peace officer' which is the old expression in English law for the modern police constable; he is in exactly the same position as the old parish constables were before there was any regular police force, and who were the only peace officers in the country—in the case of a peace officer who is killed, the law does not give the accused the same defences as in the case of other persons; it takes one away, and I am going to direct you that this is the law: If a peace officer has arrested, or is endeavouring to arrest (and that includes coming on the scene for the purpose of arresting) a person, and the arrest, if effected, would be lawful, and that person, for the purpose of escaping, or of preventing or hindering the arrest, does a wilful—that is to say, an intentional—act which causes the death of the officer, he is guilty of murder, whether or not he intended to kill or do grievous bodily harm. I venture to suggest that it really is time to get a more modern and a more simple definition of this crime of murder. I suggest that the simplest available definition is that murder is intentional killing; that is to say, it has to be established that there was an intention to kill.