Attorney-General's Reference (No 3 of 1994)
(1997), The Times July 25 House of Lords
The Point of Law Referred
Reference under section 36 of the Criminal Justice Act 1972, on the following point of law:
" 1 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 a 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 as a consequence of direct injury to the foetus can negative any liability for murder or manslaughter in the circumstances set out in question 1."
The Facts
B had stabbed a pregnant woman in the face, back and abdomen. She was discharged from hospital in an apparently satisfactory state. Some days later and without further trauma she went into labour and gave birth to a premature child, S after 26 weeks gestation, who survived for only 121 days. The child had been wounded but that made no provable contribution to her death.
During the child's lifetime B pleaded guilty to wounding the woman with intent and was sentenced to four years imprisonment. On the death of the child he was charged with the child's murder but the judge ruled that, even were causation proved, the facts could not in law result in a conviction for murder or manslaughter. He ordered B's acquittal.
On the section 36 reference by the Attorney-General, the Court of Appeal, Criminal Division (The Times November 29, 1995; [1996] QB 581 held that MURDER or MANSLAUGHTER could be charged. The Court of Appeal referred to Smith & Hogan 7th edition (1992) p329 and R v Mitchell [1983] 1 QB 741.
The Judgement
The judgements are taken from that of LORDS MUSTILL & HOPE.
LORD MUSTILL concentrated on the hypothesis that the unlawful injury had been directed to the mother alone, with the intention of hurting her alone.
The arguments of counsel were founded on a series of rules which, whatever might be said about their justice or logic, were undeniable features of the criminal law today. Those were:
1 It was sufficient to raise a prima facie case of murder, subject to entire or partial excuses such as self-defence or provocation, for it to be proved that the defendant did the act which caused the death intending to kill the victim or to cause him at least grievous bodily harm.
2 If the defendant did an act with the intention of causing a particular kind of harm to victim 1, and unintentionally did that kind of harm to victim 2, then the intent to harm victim 1 might be added to the harm actually done to victim 2 in deciding whether the defendant had committed a crime towards victim 2. (Transferred malice)
3 Except under statute, an embryo or foetus in utero could not be the victim of a crime of violence. In particular, violence to the foetus which caused its death in utero was not a murder.
4 The existence of an interval of time between the doing of an act by the defendant with the necessary wrongful intent and its impact on the victim in a manner which led to death did not in itself prevent the intent, the act and the death from together amounting to murder, so long as there was an unbroken causal connection between the act and the death.
5 Violence towards a foetus which resulted in harm suffered after the baby had been born alive could give rise to criminal responsibility even if the harm would not have been criminal, apart from statute, if it had been suffered in utero.
The Attorney-General had built on those rules in two different ways. The first argument was that the foetus was part of the mother so that an intention to cause really serious bodily injury to the mother was equivalent to the same intent directed towards the foetus.
That intent could be added to the actus reus, constituted by the creation of such a change in the environment of the foetus through the injury to the mother that the baby would be born at a time when, as events proved, it would not survive.
His Lordship said that the proposition was wholly unfounded in fact. The mother and the foetus were two distinct organisms living symbiotically, (living together for their mutual benefit) not a single organism with two aspects.
The second argument related to the foetus as a separate organism. The Attorney-General had built on the rules stated above to argue that it was only a short step to make a new rule, adding together the malice towards the mother, the contemporaneous starting of a train of events, and the coming to fruition of those events in the death of the baby after being born alive.
The attractions of the argument were plain, not least its simplicity, but it was too dependent on the piling up of old fictions.
There was a solid line of authority decreeing that the grievous harm rule [rule 1] was the law, but it had to be recognised that it was an outcropping of old law from which the surrounding strata of rationalisations had weathered away. It survived but exemplified no principle which could be applied to a new situation.
Rule 2, referred to misleadingly as the doctrine of transferred malice, harked back to a concept of general malice, that a wrongful act displayed a malevolence which could be attached to any adverse consequence, which had long been out of date. It was not a "transfer" but created a new malice which never existed before.
The doctrine was an arbitrary exception to general principles. It was useful enough to yield rough justice in particular cases and it could sensibly be retained notwithstanding its lack of any sound intellectual basis. But it was another matter to build a new rule upon it.
His Lordship concluded that the existing rules were not based on principles sound enough to justify their extension to a case where the defendant had acted without an intent to injure either the foetus or the child it would become.
To give an affirmative answer required a double transfer of intent: first from the mother to the foetus and then from the foetus to the child as yet unborn. Then one would have to deploy the fiction, or at least the doctrine, which converted an intention to commit serious harm into the mens rea of murder. That was too much.
His Lordship was willing to follow old laws until they were overturned, but not to make a new law on a basis for which there was no principle.
Even on a narrow approach the argument broke down. The effect of transferred malice was that the intended victim and the actual victim were treated as if they were one, as if the latter had been the intended victim from the start.
To make any sense of that process there had to be some compatibility between the original intention and the actual occurrence, and that was what one found in the cases. There was no such compatibility here.
His Lordship concurred with Lord Hope on the question of manslaughter and would answer the questions in the sense proposed by him.
LORD HOPE said he would answer the questions posed thus: 1(i) Did not arise on the facts, so decline to answer; (ii) Murder, no; Manslaughter, yes. 2 Murder, superseded; Manslaughter, no.
The Decision
The LORDS Held, where an assailant stabbed a pregnant woman with the intention of harming her alone, but as a result of the attack she went into premature labour and her child, although born alive, subsequently died owing to its prematurity, the assailant could be convicted of MANSLAUGHTER BUT NOT MURDER.
Comment
Lord Mustill referred to "transferred malice" as misleading, he said, " it harked back to a concept of general malice, that a wrongful act displayed a malevolence which could be attached to any adverse consequence, which had long been out of date. It was not a "transfer" but created a new malice which never existed before."
We can remind ourselves of what transferred malice is, albeit the Lords rejected it in this case; ("The doctrine was an arbitrary exception to general principles") In R V Latimer (1886) 17QBD 359 Latimer a soldier stuck out with his belt at Chappel but missed and accidentally cut open the face of Rolston. The Court for Crown cases Reserved upheld the conviction: Bowen, L.J. said, inter alia, "But....an intent to injure a person is proved; that is enough".
More recently in R V Mitchell [1983] QB 741 the accused assaulted A, aged 72, causing him to fall onto the even more elderly B (aged 89), ultimately causing her death The Court of Appeal upheld the conviction for manslaughter.
In this case their Lordships were not prepared to allow a double transfer of intent, first from the mother to the foetus and from the foetus to the child as yet unborn - as they say, "That was too much".