[1957] 2 QB 396, [1957] 2 All ER 412, [1957] 3 WLR 76, 41 Cr
App Rep 155
27 May 1957

   BYRNE, J., read the judgment of the court: The court has already intimated that this appeal is allowed and the conviction quashed, and we now proceed to give our reasons.

   The appellant was convicted at Leeds Assizes on an indictment framed under s. 23 of the Offiences against the Person Act, 1861, which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade.  The facts were that the appellant was engaged to be married, and Mrs. Wade, his prospective mother-in-law was the tenant of a house, No. 7a, Bakes Street, Bradford, which was unoccupied but which to be occupied by the appellant after his marriage.  Mrs. Wade and her husband, an elderly couple, lived in the house next door.  At one time the two houses had been one, but when the building was converted into two houses a wall had been erected to divide the cellars of the two houses, and that wall was composed of rubble loosely cemented.  On the evening of Jan. 17 last, the appellant went to the cellar of No. 7a, Bakes Street, wrenched the gas meter from the gas pipes and stole it, together with its contents.  In a second indictment he was charged with the larceny of the gas meter and its contents; to that indictment he pleaded guilty, and was sentenced to six months' imprisonment.  In respect of that matter he does not appeal.  The facts were not really in dispute, and in a statement to a police officer the appellant said: "All right I will tell you, I was short of money, I had been off work for three days, I got 8s. from the gas meter.  I tore it off the wall and threw it away".  Although there was a stop tap within two feet of the meter, the appellant did not turn off the gas, with the result that a very considerable volume of gas escaped, some of which seeped through the wall of the cellar and partially asphyxiated Mrs. Wade, who was asleep in her bedroom next door, with the result that her life was endangered.

   At the close of the case for the prosecution counsel who appeared for the appellant at the trial and who has appeared for him again in this court, submitted that there was no case to go to the jury, but the learned judge, quite rightly in our opinion, rejected this submission.  The appellant did not give evidence.

   The act of the appellant was clearly unlawful and, therefore, the real question for the jury was whether it was also malicious within the meaning of s. 23 of the Offences against the Person Act, 1861.

   Before this court, counsel for the Appellant has taken three points, all dependent on the construction of that section.  Section 23 provides as follows:

   "Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony..."

   Counsel argued first that mens rea of some kind is necessary.  Secondly, that the nature of the mens rea required is that the appellant must intend to do the particular kind of harm that was done, or alternatively that he must foresee that that harm may occur, yet nevertheless continue recklessly to do the act. Thirdly, that the learned judge misdirected the jury as to the meaning of the word "maliciously".  He cited the following cases: R. v. Pembliton (1) ((1874), L.R. 2 C.C.R. 119); R. v. Latimer (2) ((1886), 17 Q.B.D. 359); and R. v. Faulkner (3) ((1877), 13 Cox, C.C. 550).  In reply, counsel on behalf of the Crown cited R. v. Martin (4) ((1881), 8 Q.B.D. 54).

   We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C. S. KENNY in the first edition of his QUTLINES OF CRIMINAL LAW published in 1902, and repeated in the sixteenth edition, edited by Mr. J. W. CECIL TURNER, and published in 1952 (ibid., at p. 186):

   "... in any statutory definition of a crime 'malice' must be taken not in the old vague sense of 'wickedness' in general, but as requiring either (i) an actual intention to do the particular kind of harm that in fact was done, or (ii) recklessness as to whether such harm should occur or not (i.e. the assused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it).  It is neither limited to, nor does it indeed require, any ill-will towards the person injured."
 The same principle is repeated by Mr. TURNER in his tenth edition of RUSSELL ON CRIME.  We think that this is an accurate statement of the law.  It derives some support from the judgments of LORD COLERIDGE, C.J., and BLACKBURN, J., in R. v. Pembliton (1).  In our opinion, the word "maliciously" in a statutory crime postulates foresight of consequence.

   In his summing-up, the learned judge directed the jury as follows:

   "You will observe that there is nothing there about 'with intention that that person should take it'.  He has not got to intend that it should be taken; it is sufficient that by his unlawful and malicious act he causes it to be taken. What you have to decide here, then, is whether, when he loosed that frightful cloud of coal gas into the house which he shared with this old lady, he caused her to take it by his unlawful and malicious action.

   "'Unlawful' does not need any definition.  It is something forbidden by law. What about 'malicious'?  'Malicious' for this purpose means wicked -- something which he has no business to do and perfectly well knows it.  'Wicked' is as good a definition as any other which you would get.

   "The facts which face you (and they are uncontradicted and undisputed; the prisoner has not gone into the box to seek to give any particular explanation) are these.  Living in the house, which was now two houses but which had once been one and had been rather roughly divided, the prisoner quite deliverately, intending to steal the money that was in the meter -- there it is (indicating Exhibit 1) -- broke the gas meter away from the supply pipes and thus released the mains supply of gas at large into that house.  When he did that he knew that this old lady and her husband were living next door to him.  The gas meter was in a cellar.  The wall which divided his cellar from the cellar next door was a kind of honeycomb wall through which gas could very well go, so that when he loosed that cloud of gas into that place he must have known perfectly well that gas would percolate all over the house.  If it were part of this offence -- which it is not -- that he intended to poison the old lady, I should have left it to you to decide, and I should have told you that there was evidence on which you could find that he intended that, since he did an action which he must have known would result in that.  As I have already told you, it is not necessary to prove that he intended to do it; it is quite enough that what he did was done unlawfully and maliciously."
 With the utmost respect to the learned judge, we think it is incorrect to say that the word "malicious" in a statutory offence merely means wicked.  We think the learned judge was, in effect, telling the jury that if they were satisfied that the appellant acted wickedly -- and he had clearly acted wickedly in stealing the gas meter and its contents -- they ought to find that he had acted maliciously in causing the gas to be taken by Mrs. Wade so as thereby to endanger her life.  In our view, it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.  We are unable to say that a reasonable jury, properly directed as to the meaning of the word "maliciously" in the context of s. 23, would, without doubt, have convicted.

   In these circumstances, this court has no alternative but to allow the appeal and quash the conviction.