The facts taken from the judgment of the Lord Chief Justice were: a man stabbed his girlfriend in the abdomen when she was 26 weeks pregnant with his child and she died some weeks after having given birth to a live infant that survived for 120 days before it died. He was convicted on his plea of guilty to manslaughter of the girlfriend but was acquitted when later charged with the murder of the infant on the Judge's ruling that, in law, there was no case to go to the jury, for the prosecution could not result in a conviction for either murder or manslaughter.

Subject to proof by the prosecution of the requisite intent in either case: whether the crimes of murder or manslaughter can be committed where unlawful injury is deliberately inflicted (i) to a child in utero; (ii) to a mother carrying child in utero, where the child is subsequently born alive, enjoys an existence independent of the mother, thereafter dies and the injuries inflicted while in utero either caused or made a substantial contribution to the death.

2. Whether the fact that the death of the child is caused solely as a consequence of injury to the mother rather than a consequence of direct injury to the foetus can negative any liability for murder or manslaughter in the circumstances set out in question."

Yes: Murder or manslaughter could be committed where unlawful injury was deliberately inflicted either to a child in utero or to a mother carrying a child in utero in the circumstances postulated in the question. The requisite intent to be proved in the case of murder was an intention to kill or cause really serious bodily injury to the mother, the foetus before birth being viewed as an integral part of the mother. Such intention was appropriately modified in the case of manslaughter.

No: The fact that the death of the child was caused solely in consequence of injury to the mother rather than as a consequence of injury to the foetus did not negative any liability for murder and manslaughter provided that the jury were satisfied that causation had been proved.

The trial Judge found that the injuries to the child inflicted by the knife were repaired under general anaesthetic and had not made any direct contribution to the death, save through such strains arising from operative procedure, compounded by the problems arising from immaturity.

Before the child's death the respondent admitted the manslaughter charge and was sentenced to four years' imprisonment. At the subsequent murder trial the respondent's conviction was not adduced before the jury.

On submissions at the close of the prosecution case the Judge decided that, even if the facts and inferences suggested by the Crown were established, they could not in law result in a conviction for either murder or manslaughter and accordingly he directed the respondent's acquittal.

His Lordship said that the effect of the Homicide Act 1957 so altered the position of mens rea for murder at common law that the pre-1957 law was of limited relevance to the issue on which the court's opinion was sought. Since 1957, the law was clearly settled that a person could be guilty of murder only if at the time he intended either to kill or cause really serious bodily injury. Those changes meant the considerations now arose in relation to a charge of murder in circumstances such as those raised in the reference which would not have arisen before the 1957 Act and hence the pre-1957 authorities, even if conclusive before that date, could no longer determine the issues their Lordships were invited to consider.

Leaving aside such matters as provocation and diminished responsibility - which had no bearing on the issues presently under consideration - the prosecution had to prove the following elements:

7. That at the time of doing the act the defendant intended either to kill or to cause really serious bodily injury to the victim or, subject to the extent of the doctrine of transferred malice, to some other person.

Elements 1 to 6 represented the actus rea of murder and if any was absent the actus reus would not be established. Element 7 was in the mens rea of murder, for which the old expression, malice aforethought, was used. Elements 1 and 2 were simply a matter of evidence and presented no particular problem of law. As to element 3, in law the foetus was treated as part of the mother until it had a separate existence of its own.

Thus, to cause injury to the foetus was just as unlawful as any assault on any other part of the mother. A doctor who carried out an abortion in accordance with the Abortion Act 1967 was not acting unlawfully and a charge of murder against him would fail because the element that the act had to be unlawful could not be made out.

Since the situation of a foetus being born alive consequent on an abortion and subsequently being neglected or killed, which was touched on, had no relevance to the issues raised by the reference, their Lordships made clear that they had given no consideration to them.

As to element 4, the Judge ruled against the submission that the evidence was inadequate for a jury to reach a conclusion that the act was a substantial cause of death. The Judge had ruled against that submission and, although the matter had not been argued before their Lordships, he was, so far as they could judge, right so to do.

In its simplest form, element 5 meant that to cause the death of a foetus in the womb could not be murder. Their Lordships had reached the conclusion that there was no requirement that the person who died needed to be a person in being at the time that the act causing death was perpetrated. That was the position at common law and to hold otherwise would produce unacceptable anomalies.

Element 6, provided an arbitrary time-limit which, no doubt, was introduced as a safeguard at a time when proof of causation was far from easy. Consideration of the desirability of retaining such a provision was currently the subject of debate but had no relevance to their Lordships' consideration.

As to element 7, their Lordships agreed with a passage in Smith and Hogan on Criminal Law (7th edn, p.329) in so far as it rejected the concept of an intention directed towards a child capable of becoming a person in being; the concept was, so far as they could judge, a wholly new one that it sought to introduce and they did not see it as either necessary or desirable to add that gloss to the law. That was not to say that they thought that, if an intention was directed towards the foetus a charge of murder had to fail. In the eyes of the law the foetus was taken to be a part of the mother until it had an existence independent of her, so that an intention to cause serious bodily injury to the foetus was an intention to cause serious bodily injury to a part of the mother, just as an intention to injure her arm or her leg would be so viewed.

Consideration of whether a charge of murder could arise where the focus of the defendant's intention was exclusively the foetus fell to be considered under the head of transferred malice as was the case where the intention was focused exclusively or partially on the mother herself. At the simplest, the concept was that, if a defendant intended to kill or cause really serious bodily injury to A but instead killed B, he was as guilty of the murder of B as if the object of his intentions had been B rather than A.

Their Lordships could see no reason to hold that malice could be transferred only where the person to whom it was transferred was in existence at the time of the act causing death. From R. v. Mitchell [1983] 1 QB 741 it was clear that the precise mechanism of death did not have to be foreseen in manslaughter and their Lordships were satisfied that the same was true for murder.

It was neither right nor necessary to reintroduce any question of causation at the stage when mens rea fell to be considered. Provided that the jury were satisfied that the death was caused by the defendant's act, there was no reason why the concept of transferred malice should not operate. Obviously, if the mode of death was utterly remote, there might be circumstances in which that could be regarded as severing the chain of causation.

Their Lordships could not see that it should matter whether the child died after birth as a result of a stab wound suffered by the foetus before birth or as a result of premature birth induced by the stabbing. Equally, there was no justification for a proposed qualification that some degree of negligence towards the intended victim was required. There was no reason to conclude that the doctrine of transferred malice was excluded in a situation such as fell to be considered in the reference. No different approach was required, none had been suggested in argument, in relation to a charge of manslaughter, although the intention required would be less than that to establish murder.

Their Lordships' conclusions were inconsistent with those reached by the Judge, although on the state of the medical evidence it was far from clear that a jury was likely to be satisfied on the issue of causation, but their Lordships would have ruled that there was a case to go to the jury.

Murder or manslaughter could be charged where unlawful injury was committed on a woman with a foetus in utero which was later born alive prematurely and survived independently of its mother but died subsequently as a result of strains from operations compounding problems of the immaturity.

The Court of Appeal (Criminal Division) so held in a reserved judgment on a reference by the Attorney General of a point of law under s.36 of the Criminal Justice Act 1972.

In R. v. Mitchell, supra, the principle of transferred malice was applied where the accused assaulted A, aged 72, causing him to fall on an even more elderly B (aged 89) ultimately causing her death. The Court of Appeal upheld the conviction of her manslaughter, Staughton, J saying: "We can see no reason of policy for holding that an act calculated to harm A cannot be manslaughter if it in fact kills B."

The death within a year and a day rule seems to have its origin in the procedure of the ancient application of felony, a private prosecution, and to have imposed a limit in which the action must be brought - see Yale, "A year and a day in Homicide" [1989] CLJ 202, quoted in Smith and Hogan on Criminal Law (7th edn, p.330). It can best be described as an arbitrary rule in need of urgent reform.

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