to time by appellate courts of

offering guidance either for the benefit of a judge exercising a

discretion conferred upon him by law or as to the assistance which
a judge may properly give a jury in reaching a conclusion of fact
can be helpful but does not result in, or establish, though it should
reflect, a rule of law. And, as this case illustrates, there is
always the danger that the inevitable generality of guidelines
intended to cover a class of case may be such as to be
inapplicable or misleading in some cases - usually through an error
of omission.

The dangers inherent in general guidance for the assistance

of juries in determining a question of fact lead me to the second
reason for the importance of the appeal, namely that the cases to
which the guidance was expressly limited by the House in Moloney,
i.e. the "rare cases" in which it is necessary to direct a jury by
reference to foresight of consequences, are unlikely to be so rare
or so exceptional as the House believed. As the House then
recognised, the guidelines as formulated are applicable to cases of
any crime of specific intent, and not merely murder. But further
and disturbingly crimes of violence where the purpose is by open
violence to protest, demonstrate, obstruct, or frighten are on the
increase. Violence is used by some as a means of public
communication. Inevitably there will be casualties: and inevitably
death will on occasions result. If death results, is the perpetrator
of the violent act guilty of murder? It will depend on his intent.
How is the specific intent to kill or to inflict serious harm
proved? Did he foresee the result of his action? Did he foresee
it as probable? Did he foresee it as highly probable? If he did,
is he guilty of murder? How is a jury to weigh up the evidence
and reach a proper conclusion amidst these perplexities? The best
guidance that can be given to a trial judge is to stick to his
traditional function, i.e. to limit his direction to the applicable
rule (or rules) of law, to emphasise the incidence and burden of
proof, to remind the jury that they are the judges of fact, and

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against that background of law to discuss the particular questions

of fact which the jury nave to decide, indicating the inferences
which they may draw ii they think it proper from the facts which
they find established. Should not appellate guidance emphasise the
importance of particular facts and avoid generalisation? This is a
question to be considered. The facts of this case would appear to
indicate an affirmative answer.