Brief of DPP v Smith

Brief of DPP v Smith by Legum

D.P.P. v. Smith [1961] AC 290

Material Facts:

The defendant was driving a car carrying stolen scaffolding clips. In the normal course of traffic control, a policeman on duty stopped the car. Upon seeing the stolen goods, the policeman asked the defendant to park by the side. As the driver drove slowly, the policeman walked beside the car.

However, the defendant decided to drive off. The policeman, in turn, jumped onto the car and hung onto it till he was thrown off and under a bubble car coming in the opposite direction, suffering a crushed skull and other injuries from which he died.

At the trial court, the jury was directed as follows:

... if you are satisfied that ... he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer ... and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder ...On the other hand, if you are not satisfied that he intended to inflict grievous bodily harm upon the officer--in other words, if you think he could not as a reasonable man have contemplated that grievous bodily harm would result to the officer in consequence of his actions--well, then, the verdict would be guilty of manslaughter.

With this direction, the defendant was found guilty of murder, and he appealed against his conviction on the grounds that the trial judge misdirected the jury when he instructed them to find the defendant guilty if a reasonable man should have contemplated that driving while the police officer hung onto the car was likely to result in harm to the officer.

At the Court of Appeal, it was held that there was a misdirection of the jury because the proper direction should have been not what a reasonable man thought would be the consequence of his acts but what the defendant himself thought at the time of the act. His murder conviction was quashed and substituted for manslaughter. The Attorney General then appealed to the House of Lords.


whether the court should apply the objective "reasonable person" standard, considering what a hypothetical reasonable person would have contemplated, or a subjective standard that takes into account the defendant's personal knowledge and contemplation.


The standard to apply was that of a reasonable person and what he ought to have contemplated in the present circumstances.

Ratio Decidendi:

The House of Lords, per Lord Viscount Kilmuir, held the view that the standard to assess the defendant has always been and would be the standard of the reasonable man. Per his lordship,

The jury must of course in such a case as the present make up their minds on the evidence whether the accused was unlawfully and voluntarily doing something to someone. The unlawful and voluntary act must clearly be aimed at someone in order to eliminate cases of negligence or of careless or dangerous driving. Once, however, the jury are satisfied as to that, it matters not what the accused in fact contemplated as the probable result, or whether he ever contemplated at all, provided he was in law responsible and accountable for his actions , i.e., was a man capable of forming an intent, not insane within the M'Naghten Rules and not suffering from diminished responsibility. On the assumption that he is so accountable for his actions, the sole question is whether the unlawful and voluntary act was of such a kind that grievous bodily harm was the natural and probable result. The only test available for this is what the ordinary, responsible man would, in all the circumstances of the case, have contemplated as the natural and probable result. That, indeed, has always been the law…

My Lords, the law being as I have endeavoured to define it, there seems to be no ground on which the approach by the trial judge in the present case can be criticised. Having excluded the suggestion of accident, he asked the jury to consider what were the exact circumstances at the time as known to the respondent and what were the unlawful and voluntary acts which he did towards the police officer. The learned judge then prefaced the passages of which complaint is made by saying, in effect, that if, in doing what he did, he must as a reasonable man have contemplated that serious harm was likely to occur then he was guilty of murder.

His lordship defined the reasonable man as "an ordinary man capable of reasoning who is responsible and accountable for his actions".

The conviction for murder was restored

Key Principles

1. There was the mens rea for murder even though the defendant did not have a direct intent to kill the policeman. His intention to kill was, however, found to be present because he should have contemplated that his actions could possibly lead to the death of the police officer. See section 11(2) of the Criminal Offences Act, 1961 (Act 29)