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R v Cunningham [1957] 2 QB 396

Intention and the meaning of malice in s.23 OAPA 1861


The appellant removed a gas meter in order to steal the money inside. The meter however was connected to the neighbouring house which was occupied by the appellant’s future mother-in-law. At the time he did this, she was in her property asleep. The removal of the meter caused gas to leak into her property, which in turn lead to her being poisoned by the gas. The defendant was charged with unlawfully and maliciously endangering his future mother-in-law’s life contrary to the Offences Against the Person Act (OAPA) 1861, section 23. The appellant was convicted at trial, with the judge instructing the jury that for the meaning of “malice” in this context is “wicked” or otherwise “–

“something which he has no business to do and perfectly well knows it” (p.3).

The case was appealed by the appellant on the basis of this instruction to the jury in addition to arguing for a lack of mens rea to cause harm.


The issue in the case was whether the trial judge had erred in his instruction to the jury and what is the correct meaning of malice. The broader issue in the case was what amounts to intention for the purposes of s.23 of OAPA 1861.


The appellant’s conviction was quashed on the grounds that the judged had erred in describing the meaning of “malicious” as “wicked” – this was an incorrect definition and the trial judge misled the jury into believing that if the appellant had acted wickedly he had also acted maliciously. The correct test for malice was whether the defendant had either actual intent to cause harm or was reckless as to the possibility of causing foreseeable harm. This is known as “Cunningham Recklessness”. The jury should have been left to decide whether, even without intending to cause harm, the appellant removed the gas meter despite foreseeing that its removal could cause harm to his future mother-in-law.

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