It may be thought that the most important aspect of the decision of the House of Lords in Bratty v. Att.-Gen. for Northern Ireland [1961] 3 W.L.R. 965 is the opportunity it gives for qualifying some of the dicta in Director of Public Prosecutions v. Smith [1961] A.C. 290. Lord Morris of Borth-y-Gest (with whom Lords Tucker and Hodson expressed concurrence) referred to the “golden” rule in Woolmington, and said:

“In a charge of murder, malice may by implication be proved where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given an accused person may, however, either by adducing evidence or by examining the circumstances adduced by the Crown, show that his actions were either unintentional or provoked. In such a situation the continuing and constant obligation of the prosecution to satisfy the jury beyond any reasonable doubt is in no way abated.”

In R. v. Porritt [1961] 1 W.L.R. 1372; 45 Cr.App.R. 348 the accused had been convicted of the capital murder of his stepfather. His defence was that he fired the fatal shot in an attempt to protect the deceased from two members of a rival gang, the Copleys, one of whom was holding a knife at his throat. He further pleaded that he was repelling an armed invasion of his home by the Copleys.

The accused clearly had no desire whatever to harm his stepfather, who seems to have been an active member of the same gang as the accused. He was however prima facie guilty of murder should the prosecution establish his intent by shooting to cause death or grievous bodily harm to the Copleys, under the doctrine of transferred malice, whereby the accused is legally responsible for intended consequences even though they are visited upon an unintended victim: Hopwood (1913) 8 Cr.App.R. 143.

Defences are also transferred with the malice; Conner (1836) 7 C. & P. 438, and the prosecution conceded that the homicide was justifiable if done in the honest belief that it was necessary to preserve the life of his stepfather or to protect his home from invasion. The concession was in generous terms, as the authorities require not merely honest belief on the part of the accused, but reasonable grounds for this belief: Rose (1884) 15 Cox 540. The defence that the Copleys were seeking to dispossess the Porritts carried the matter little further, except that it has been held that there is no duty to retreat in such a case: Hussey (1924) 18 Cr.App.R. 160.

In R. v. Males [1961] 3 W.L.R. 1297, the Court of Criminal Appeal was concerned with the effect of section 12 of the Criminal Procedure Act, 1851, upon the common law doctrine of merger in its application to the misdemeanour of attempt. This doctrine of the common law is to the effect that if the acts of an accused person constitute both a lesser crime and a greater, the lesser crime (at all events if a misdemeanour) merges in the greater (at all events if a felony), and is extinguished by it. In consequence, if the accused was charged only with the lesser crime, he was at common law entitled to an acquittal. Thus, in the old case of Harmwood (1787) 1 East P.C. 411, the accused, who had been indicted for an assault with intent to rape, had to be acquitted when it was found that rape had actually been accomplished.

Although revered by counsel in a case in 1851 as “ancient well established doctrine,” the principle of merger has had a fitful and at times precarious life. Its justification has never been clearly formulated, nor its province determined. Its application is in some respects arbitrary. It applies to the misdemeanour of attempt, which is held to merge in the completed crime, but not to the misdemeanour of conspiracy. It remains uncertain whether one misdemeanour may merge in another, although merger in this case was doubted in R. v. Males.

The doctrine of merger is supported by the sound reason “that no man is to be harassed by frequent prosecutions for the same offence,” as counsel expressed it in R. v. Button (1848) 11 Q.B. 929, but has in the past earned some disrepute for the opportunities of escape offered to accused persons who, having committed both misdemeanour and felony, succeeded in evading conviction of either.