Attorney-General's Reference (No 3 of 1994)

Facts

The defendant stabbed a woman who was pregnant. She survived, but the child was born prematurely some time after the attack and died some months after birth, the death being a result of the prematurity.

History

The trial ended without a conviction for any homicide offence, the judge having ruled that the death of the child could not found murder or manslaughter. The Attorney General referred points of law to the Court of Appeal under s 36 of the Criminal Justice Act 1972, which left the acquittal untouched. The Court of Appeal answered that neither murder nor manslaughter was available.

Issue

Whether a defendant who deliberately injures a pregnant woman can be convicted of murder or manslaughter of her child, where the child is born alive and later dies as a result of the injury done before birth.

Held

The reference succeeded in part. Murder was not available, because the intent directed at the mother could not be transferred to the foetus and then to the child. Manslaughter was available, because the unlawful and dangerous act caused the death of a child who had been born alive.

Ratio

• The doctrine of transferred malice does not carry an intention to harm the mother first to the foetus and then to the child later born alive, so the mental element of murder is not made out by intent aimed only at the mother.
• Manslaughter by an unlawful and dangerous act is made out where the defendant deliberately commits an unlawful act that a reasonable person would see as likely to cause harm, and a person in being dies as a result; the child, once born alive, was such a person, so no transfer of intent was needed.

The judgments

Key reasoning

• Homicide requires that the victim be a person in being, and a foetus is not; the defendant therefore could not have murdered the foetus at the time of the stabbing.
• Transferred malice operates between one victim and another of the same kind; carrying intent from the mother to the foetus and then to the child would be a double transfer which the court declined to accept.
• Unlawful act manslaughter needs no intention to kill or to cause serious harm, only an intentional unlawful act that is dangerous in the objective sense, so the stabbing satisfied the mental element without any transfer.
• That the harm was done before birth did not matter, because the offence is complete when the person who has been born alive dies of the injury.

Obiter

• It was indicated that a defendant who intended to kill or seriously harm the foetus itself, and the child was then born alive and died, might be guilty of murder, because the intent would attach to the person the foetus would become; the point was not decided.

Where it fits in the module

Topic 1 concerns the basic principles of liability, including the coincidence of actus reus and mens rea, causation and the limits of transferred malice. This case tests all three: the causal chain runs from the stabbing, through premature birth, to the death, and the mental element was aimed at a different victim at a different stage. It shows how unlawful act manslaughter can cover conduct that murder cannot, because it dispenses with intention as to the harm to the eventual victim.

Criticisms

• If the foetus is a separate organism and not part of the mother, then harm to it before birth is harm to someone other than the mother, and it is hard to see why the act is dangerous to the child for manslaughter yet cannot be treated as directed at the child for murder.
• Refusing murder while allowing manslaughter gives a lesser label to a defendant who intended grave injury to a pregnant woman and caused the death of her child, which arguably under-reflects culpability.
• Liability turns on whether the child is born alive, so identical conduct yields no homicide liability if the child dies in the womb, which is a morally thin line.
• The decision exposes transferred malice as a fiction of limited reach without giving a principled account of when intention can attach to a later-arising victim.