I pause to distinguish the case of indiscriminate malice from those already discussed, although even now it is sometimes confused with them. The terrorist who hides a bomb in an aircraft provides an example. This is not a case of "general malice" where under the old law any wrongful act sufficed to prove the evil disposition which was taken to supply the necessary intent for homicide. Nor is it transferred malice, for there is no need of a transfer. The intention is already aimed directly at the class of potential victims of which the actual victim forms part. The intent and the actus reus completed by the explosion are joined from the start, even though the identity of the ultimate victim is not yet fixed. So also with the shots fired indiscriminately into a crowd. No ancient fictions are needed to make these cases of murder.
I turn to deal more briefly with the remaining rules. The third rule, it will be recalled, is that a foetus cannot be the victim of murder. I see no profit in an attempt to treat the medieval origins of this rule. It is sufficient to say that is established beyond doubt for the criminal law, as for the civil law ( Burton v. Islington Health Authority [1993] QB 204 ) that the child en ventre sa mère does not have a distinct human personality, whose extinguishment gives rise to any penalties or liabilities at common law.
The fourth rule is an exception to the generally accepted principle that actus reus and mens rea must coincide. A continuous act or continuous chain of causes leading to death is treated by the law as if it happened when first initiated. The development of this into the fifth rule, which links an act and intent before birth with a death happening after a live delivery, causes a little more strain, given the incapacity of the foetus to be the object of homicide. If, however, it is possible to interpret the situation as one where the mental element is directed, not to the foetus but to the human being when and if it comes into existence, no fiction is required.
My Lords, the purpose of this enquiry has been to see whether the existing rules are based on principles sound enough to justify their extension to a case where the defendant acts without an intent to injure either the foetus or the child which it will become. In my opinion they are not. To give an affirmative answer requires 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 converts an intention to commit serious harm into the mens rea of murder. For me, this is too much. If one could find any logic in the rules I would follow it from one fiction to another, but whatever grounds there may once have been have long since disappeared. I am willing to follow old laws until they are overturned, but not to make a new law on a basis for which there is no principle.
Moreover, even on a narrower approach the argument breaks down. The effect of transferred malice, as I understand it, is that the intended victim and the actual victim are treated as if they were one, so that what was intended to happen to the first person (but did not happen) is added to what actually did happen to the second person (but was not intended to happen), with the result that what was intended and what happened are married to make a notionally intended and actually consummated crime. The cases are treated as if the actual victim had been the intended victim from the start. To make any sense of this process there must, as it seems to me, be some compatibility between the original intention and the actual occurrence, and this is, indeed, what one finds in the cases. There is no such compatibility here. The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person, either at the time or in the future, and intended no harm to the foetus or to the human person which it would become. If fictions are useful, as they can be, they are only damaged by straining them beyond their limits. I would not overstrain the idea of transferred malice by trying to make it fit the present case.
Accordingly, I would differ from the thoughtful judgments delivered in R. v. Kwok Chak Ming (1963) H.K.L.R. 226 and 349, and hold that on the presumed facts the judge was right to direct an acquittal on the count of murder.
Before leaving this part of the appeal I would acknowledge the extensive citation by counsel of passages from learned writers, present and past. There is no space to name them all here, or to recognise the further sources consulted after the close of the hearing. All have proved valuable, even if not all of the opinions expressed have been adopted. Notwithstanding the strong practical character of the criminal law it has over the years gained immeasurably from systematic analysis by scholars who have had an opportunity for research and reflection denied to those immersed in the daily life of the courts. I hope that the practice of drawing on these materials will be continued and enlarged.
II. Manslaughter
I turn to the question of manslaughter. This has caused me great anxiety. Until I read the speech of my noble and learned friend, Lord Hope of Craighead I had reasoned as follows. The brief discussion by the Court of Appeal assumed that a conviction of manslaughter would be appropriate, and appropriate only, in a case where the defendant intended to cause harm to the mother short of grievous bodily harm. The reasoning was the same as in the case of murder, apart from the difference in intent. Since I have differed from this reasoning in the case of murder I must also reject it for manslaughter. There is, however, another possibility which takes account of the fact that the offence of manslaughter unites a group of crimes which have nothing in common except their name. Two members of this group, often called "unlawful act" and "gross negligence" manslaughter, respectively, share the feature that it is possible to commit them without any violent intent towards the victim. It is obvious that with this type of offence the problems of transferred malice cannot arise. The Court of Appeal had no occasion to consider whether one of these, namely, the "unlawful act" variety, might furnish an alternative route to a verdict of manslaughter, but the trial judge did so and concluded, evidently with some hesitation, that it would not. His reasoning, as I understand it, was that the authorities require that the act in question, before it can be characterised as unlawful for this purpose, must be one which is likely to injure another person; and since the foetus is not a person, the danger to its continued existence could not make the act unlawful.
My Lords, whilst recognising the logic of this approach I had felt that the learned judge had stopped short of carrying it through, for there was the possibility that the unlawful attack on the mother was a threat not only to the foetus before birth but also to the live child when ultimately born. It appeared to me, therefore, that a defendant in the position of B could in theory be convicted of manslaughter, if the jury was satisfied that a sober and reasonable person would have realised that the attack could harm the child if afterwards born alive, and if causation was proved. I add the qualification "in theory" because the formulation of a direction along these lines in terms which a jury could understand would be difficult, and the prospect that a competently represented defendant would, in fact, be convicted would be small indeed. Nevertheless, that is where the authorities seemed to point, so that a highly qualified affirmative answer should be given to Question 1.1.(ii)(b).
Study of the speech to be delivered by Lord Hope has, however, persuaded me that this perspective may be too narrow, in directing attention to the foreseeability on the part of the accused that his act would create a risk to the person at whom it was aimed and to a wider class of persons falling within the area of potential danger. My noble and learned friend proposes, however, that the search for this wider class is misconceived. All that it is needed, once causation is established, is an act creating a risk to anyone ; and such a risk is obviously established in the case of any violent assault by the risk to the person of the victim herself (or himself). In a case such as the present, therefore, responsibility for manslaughter would automatically be established, once causation has been shown, simply by proving a violent attack even if (which cannot have been the case here) the attacker had no idea that the woman was pregnant. On a broader canvas, the proposition involves that manslaughter can be established against someone who does any wrongful act leading to death, in circumstances where it was foreseeable that it might hurt anyone at all; and that this is so even if the victim does not fall into any category of persons whom a reasonable person in the position of the defendant might have envisaged as being within the area of potential risk. This is strong doctrine, the more so since it might be said with some force that it recognises a concept of general malice (that those who do wrong must suffer the consequences of a resulting death, whether or not the death was intended or could have been foreseen) uncomfortably similar to the one rejected more than 150 years ago by the courts and commentators in the context of murder; and one which, it is proper to add, I have proposed in the first part of this speech, should be rejected once again in that context.
It is this feature which has caused me to hesitate long in joining the remainder of your Lordships to hold that a verdict of manslaughter can be available in circumstances as broad as this. I am, however, entirely convinced by the speech of Lord Hope that this is the present state of English law. To look for consistency between and within the very different crimes of murder and manslaughter is, I believe, hoping for too much. One can, however, look for a result which does substantial justice, and this is what I believe verdicts that B was not guilty of murder and guilty of manslaughter would have achieved.
I would, therefore, answer the questions of law in the sense proposed by my noble and learned friend, Lord Hope of Craighead.
III. Premature death
I now turn to a subsidiary issue left over at an early stage which has caused me some concern. It arises from the fact that the life of S came to an end because her constitution was unable to withstand the ordinary perils of infancy. In a narrow perspective, she died of natural causes. This fact is not easily accommodated within the traditional definitions, or indeed the common understanding, of murder as a crime where the victim is killed. Nor is the problem entirely solved by pointing to a situation where a baby is deliberately exposed in bad weather, for there the evil-doer's act causes the child to die, whereas here S's life simply came to an end without anything having been done whilst she was living to shorten its span. Nor is there any useful analogy with the setting of a time-bomb before a birth which explodes afterwards and kills the newborn child, cf. Rex v. Shephard [1919] 2 K.B. 125, at p. 126: for there was in that case an intention that the living child should be killed, which S was not.
My Lords, if I had thought that the agreed facts could otherwise have founded an indictment for murder I would have wished to look more closely at this problem, although I suspect that in the end it might well have proved to be simply a matter of vocabulary, and that the word "kills" in the traditional definition is wide enough to mean "causing the death of a person by an act or omission but for which the person killed would not have died when he did": Stephen, Digest of the Criminal Law (1877) 138. S. would have lived a longer life but for what happened before she was born.
In any event, however, this feature does not in my opinion stand in the way of a conviction for manslaughter. The unlawful and dangerous act of B changed the maternal environment of the foetus in such a way that when born the child died when she would otherwise have lived. The requirements of causation and death were thus satisfied, and the four attributes of "unlawful act" manslaughter were complete.
IV. Remaining Issues
My Lords, it will not be overlooked that this long opinion has so far given answers for only two of the numerous questions raised by the point of law referred: numerous because the point of law depends on three alternative presumptions as to the nature and circumstances of the injury and three presumptions as to B's intention. This makes it apposite to recall section 36(1) of the Criminal Justice Act 1972, by virtue of which the matter is now before the House:
I have emphasised certain words which impose an essential restriction on this valuable power. The courts have always firmly resisted attempts to obtain the answer to academic questions, however useful this might appear to be. Normally, where an appeal is brought in the context of an issue between parties, the identification of questions which the court should answer can be performed by considering whether a particular answer to the question of law might affect the outcome of the dispute. The peculiarity of a reference under the Act of 1972 is that it is not a step in a dispute, so that in one sense the questions referred are invariably academic. This peculiarity might, unless limits are observed, enable the Attorney-General, for the best of motives, to use an acquittal on a point of law to set in train a judicial roving commission on a particular branch of the law, with the aim of providing clear, practical and systematic solutions for problems of current interest. This is not the function of the court, and the words emphasised in section 36(1) were in my view designed to keep the proceedings in Attorney-General's references within proper bounds.
My Lords, I have to say that the present reference oversteps these bounds. To deal in proper depth with every one of the permutations resulting from the alternative facts contained in the point of law referred would be the function of a text book, not a judgment. It would, I believe, be most imprudent to enter upon any of them without resolving to pursue them in depth, and I should wish to proceed with particular care in relation to allegations of murder stemming from an injury to the foetus unaccompanied by any causative injury to the mother. A modern law of murder would have to take into account (a) the disappearance of the felony/murder rule, and its possible effect on cases such as R. v. West (1848) 2 Car. & K. 784, long treated as authoritative but in my view open to question; and (b) the long history of statutory intervention in the interests of the unborn child, beginning with Lord Ellenborough's Act 1803, and continuing through the Offences Against the Person Act 1823, sections 58 and 59 of the Offences Against the Person Act 1861 (as amended), the Infant Life (Preservation) Act 1929 and the Abortion Act 1967 (as amended). Close analysis would be required for this purpose. Counsel did not engage this topic in depth, preferring to concentrate on the issues which were the subject of the ruling at the trial. In my opinion they were right, and I suggest that your Lordships should confine themselves to discussing the issues which arose at the trial, leaving the remainder to a time when they call for decision in practice.
V. Conclusions
I would respond to the points of law in the manner proposed by my noble and learned friend Lord Hope of Craighead.
LORD SLYNN OF HADLEY
My Lords,
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Mustill and Lord Hope of Craighead. For the reasons given by Lord Mustill I agree that the learned judge in the case was right to direct an acquittal on the count of murder. Like him I began by thinking that a narrower definition of mens rea was called for in relation to the charge of manslaughter but I am persuaded by the opinion of Lord Hope that on the facts presumed the offence of manslaughter was made out and that the questions of law should be answered as he proposes.
LORD HOPE OF CRAIGHEAD
My Lords,
This case came before the Court of Appeal on a reference by the Attorney General under section 36 of the Criminal Justice Act 1972. The point of law was formulated in general terms, without reference to the particular facts which were before the trial judge. But, as the power which is given by section 36 of the Act of 1972 to refer a point of law to the court is restricted to a point of law which has arisen in the case in which the person who was tried on indictment was acquitted, it may be helpful to summarise again briefly the facts in the light of which the point of law requires to be answered. It is possible to envisage a variety of circumstances in which this point may arise, but I do not think that we can provide answers which will cover every case in which a child is born alive and then dies as a result of a criminal act which was committed while it was still in utero. We must stick to the facts which are before us in this case.
The child's mother was pregnant when she was stabbed by the defendant. He knew that she was pregnant when he stabbed her, and he was the father of the child. There were several stab wounds, one of which was to the left lower abdomen. It punctured the uterus and entered the abdomen of the foetus, but the injury which the foetus sustained was not the cause of the child&!!;s death. The mother made a good recovery from her injuries. But about two weeks after the stabbing, and without further injury, she went into labour and gave birth to the child. The child was grossly premature when she was born. The medical evidence was that the period of gestation was likely to have been 26 weeks, and that she had only a 50% chance of survival. In the event she survived, after spending her entire life in intensive care, for only 121 days. The cause of death was the failure of her lungs to perform satisfactorily due to her premature birth. The injuries to her abdomen had been repaired under general anaesthetic, and the evidence was that they made no direct contribution to her death. Her premature birth was caused by the injuries which her mother received when she was stabbed by the defendant.
Whilst the child was still alive the defendant pleaded guilty to wounding with intent to cause her grievous bodily harm. Although he knew that she was pregnant, there was no evidence that he intended to destroy the foetus or to cause injury either to the mother or to the foetus which would result in harm to the child after she was born. At the time when the injuries were inflicted the period of gestation was likely, according to the medical evidence, to have been 24 weeks. The child would have had only a remote chance of survival if she had been born on that date, but the embryo had clearly reached the stage of development when it had become a foetus within the mother&!!;s uterus. There is no doubt that the defendant would have been guilty of the murder of the mother if she had died as a result of her injuries. On his own admission he intended to cause her grievous bodily harm. So the mens rea for murder was present, if the death of the mother had been the result of his act: see Regina v. Cunningham [1982] AC 566 . There is no doubt also that he would not have been guilty either of the murder or of the manslaughter of the child if the child had been stillborn. Until she had been born alive and acquired a separate existence she could not be the victim of homicide: 3 Co.Inst. (1680) 50.
The Court of Appeal held that a foetus before birth must be taken to be an integral part of the mother, in the same way as her arm or her leg. It was for this reason that they said that the requisite intent to be proved in the case of murder, if the child was subsequently born alive and then died, was an intention to kill or to cause really serious bodily injury to the mother. I am not satisfied that this is the correct approach. The creation of an embryo from which a foetus is developed requires the bringing together of genetic material from the father as well as from the mother. The science of human fertilisation and embryology has now been developed to the point where the embryo may be created outside the mother and then placed inside her as a live embryo. This practice, not now uncommon in cases of infertility, has already attracted the attention of Parliament: see the Human Fertilisation and Embryology Act 1990 . It serves to remind us that an embryo is in reality a separate organism from the mother from the moment of its conception. This individuality is retained by it throughout its development until it achieves an independent existence on being born. So the foetus cannot be regarded as an integral part of the mother in the sense indicated by the Court of Appeal, notwithstanding its dependence upon the mother for its survival until birth. The problem which has arisen in this case is due to the fact, which is not disputed, that at the time of the stabbing the child had not yet been born alive.
The abolition of constructive malice by section 1(1) of the Homicide Act 1957 has had the result that we must approach this problem without the guidance of previous authority. In this situation I think that it may be helpful to examine the actus reus and the mens rea separately in order to see whether, on the facts of this case, the defendant was guilty of murder or of manslaughter or of neither of these two crimes.
The actus reus
I have no difficulty in finding in the facts of this case all the elements which were needed to establish the actus reus both of murder and of manslaughter. The actus reus of a crime is not confined to the initial deliberate and unlawful act which is done by the perpetrator. It includes all the consequences of that act, which may not emerge until many hours, days or even months afterwards. In the case of murder by poisoning, for example, there is likely to be an interval between the introduction of the victim to the poison and the victim&!!;s death. There may be various stages in the process, between each of which time will elapse. The length of the interval is not now important: Law Reform (Year and A Day Rule) Act 1996 . What is needed in order to complete the proof of the crime is evidence of an unbroken chain of causation between the accused&!!;s act and the victim&!!;s death. Although we cannot now know, as the Court of Appeal have pointed out, whether the jury would have been satisfied on the issue of causation, there was clearly a sufficient case to go to the jury on this matter. There was a respectable body of medical evidence that the child was born prematurely as a result of the stabbing, and that it was as a result of the prematurity of her birth that she died. It was not disputed that injury to a foetus before birth which results in harm to the child when it is born can give rise to criminal responsibility for that injury. So the fact that the child was not yet born when the stabbing took place does not prevent the requirements for the actus reus from being satisfied in this case, both for murder and for manslaughter, in regard to her subsequent death.
The mens rea
The difficult issues all relate to the question whether the defendant had the mens rea which would be required for him to be guilty of the child&!!;s murder or manslaughter. The point of law as framed by the Attorney General does not look for separate answers to be given as between the two crimes. But I think that, at least on the facts of this case, they require to be examined separately. The mental element which is required to establish the crime of manslaughter is different from that which is required for murder. The difference may be regarded as one of degree where there is only one victim of the criminal act done by the accused, and he intended to cause harm to the victim. In that case the only issue is whether the crime is that of murder or of manslaughter. But in the present case, where there were two alleged victims--the mother who was stabbed, to whom the defendant intended to cause harm, and the child who was born later and then died, to whom no harm was intended--the question is not simply one of degree. An analysis is needed of the nature of the intention which requires to be established in the case of each of these two crimes.
Murder
I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Mustill. I gratefully adopt his analysis of the rules for the crime of murder and of their historical origin, and I agree entirely with the conclusion which he has reached that the mens rea for murder was not present in this case. I wish in particular to express my agreement with him in the conclusions which he has reached that the concept of general malice must be rejected as being long out of date, and that it would be straining transferred malice too far to apply it to the circumstances of this case as this would require the malice to be transferred not once but twice to achieve the result contended for on behalf of the Attorney General. As Lord Mustill has pointed out, however, the crime of murder is an entirely different crime from that of manslaughter, and in turning--as I now do--to consider the crime of manslaughter I shall endeavour to approach that subject without any preconceptions as to what the solution should be based on what the law tells us is required for a conviction for murder.
Manslaughter
Criminal homicide is divided by the common law into the two separate crimes of murder and manslaughter. Manslaughter itself can be divided into various categories, depending on the context for the exercise. In regard to mens rea it is usually convenient to distinguish between (1) cases where the accused intended to injure the deceased and (2) cases where the accused had no such intention. Within the first category there are the cases (a) where he intended to cause grievous bodily harm to his victim but his criminal responsibility is reduced on the ground of provocation at the time of the act, and (b) where he intended to cause only minor harm to the victim but death ensues as a result of his act unexpectedly. Within the second category there are the cases (a) where the accused's act was not unlawful but the death of the victim was the result of negligence of such a gross nature as to be categorised as criminal, and (b) where the accused's act was both unlawful and dangerous because it was likely to cause harm to some person. The present case is an example of unlawful act manslaughter. But the placing of it into this category does no more than touch the surface of the problem where the ultimate victim of that act was not the intended victim and, moreover, was not even alive when the unlawful act was perpetrated.
Let me begin by distinguishing the Scottish case of McCluskey v. H.M. Advocate, 1989 S.L.T. 175, to which reference was made in the Court of Appeal, as that was a case of statutory homicide. The appellant was convicted of causing death by reckless driving contrary to section 1 of the Road Traffic Act 1972. As Lord Justice General Emslie said in the opinion of the Court at p. 176, only three elements were needed in order to establish the charge under that section: (1) the death of another person, (2) reckless driving by the accused and (3) a causal connection between the reckless driving and the death. The statutory offence does not depend upon proof of an intention to commit the crime, so it was not necessary for the court to examine the issue of mens rea. The Lord Justice General&!!;s observation that there was no authority in the law of Scotland to the effect that a relevant charge of culpable homicide would not lie in such circumstances seems to me to be directed only to the question as to the actus reus of homicide. It was to that question that counsel for the appellant had directed his argument that section 1 of the Act of 1972 was concerned only with the death of a person who was in life at the time of the reckless driving.
So far as mens rea for the common law crime of manslaughter is concerned, I consider that it is sufficient that at the time of the stabbing the defendant had the mens rea which was needed to convict him of an assault on the child's mother. That was an unlawful act, and it was also an act which was dangerous in the sense indicated by Humphreys J. in Rex v. Larkin (1942) 29 Cr.App.R. 18, 23 in the passage which was quoted with approval by Lord Salmon in D.P.P. v. Newbury [1977] AC 500 , 506-7. Dangerousness in this context is not a high standard. All it requires is that it was an act which was likely to injure another person. As "injury" in this sense means 'harm", the other person must also be a living person. A person who is already dead cannot be harmed any longer, so injury of the kind which is required is no longer possible. That is why it was held in Regina v. Church [1966] 1 QB 59 that it was a misdirection for the jury to be told simply that it was irrelevant to manslaughter whether or not the appellant believed that the woman whom he threw into the river was already dead. But in this case injury to another living person-- the child&!!;s mother--was the inevitable result of the defendant&!!;s deliberate and unlawful act. Such was the character of the mens rea which the defendant possessed when he committed the initial act in the series of events which resulted in the death of the child.
There was plainly, in this case, a long interval between the initial act and the child's death and, as I have already said, there was no evidence that the defendant intended to cause injury either to the mother or to the foetus which would result in the child's death after it was born. But I do not see either of these features of this case as giving rise to difficulty. As Lord Lane C.J. observed in Regina v. Le Brun [1992] Q.B. 61, 68E-F, following Regina v. Church [1966] 1 Q.B.59, the act which caused the death and the mental state which is needed to constitute manslaughter need not coincide in point of time. So to this extent as least it may be said to be immaterial that the child was not alive when the defendant stabbed the mother with the intention which was needed to show that he was committing an unlawful act. It is enough that the original unlawful and dangerous act, to which the required mental state is related, and the eventual death of the victim are both part of the same sequence of events.
Nor is it necessary, in order to constitute manslaughter, that the death resulted from an unlawful and dangerous act which was done with the intention to cause the victim to sustain harm. This is because it is clear from the authorities that, although the accused must be proved to have intended to do what he did, it is not necessary to prove that he knew that his act was unlawful or dangerous. So it must follow that it is unnecessary to prove that he knew that his act was likely to injure the person who died as a result of it. All that need be proved is that he intentionally did what he did, that the death was caused by it and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result. The case of Regina v. Mitchell [1983] Q.B. 741 is a good example of this point. During an altercation in a queue at a busy post office the appellant hit a man who fell against an old lady, causing her to fall to the ground. Her leg was broken, with the result that she died later as a result of a pulmonary embolism. The Court of Appeal held that he was rightly convicted of manslaughter, although he had aimed no blow at the lady and had had no other physical contact with her. As Lord Salmon put it in D.P.P. v. Newbury [1977] AC 500 , 509C, manslaughter is one of those crimes in which only what is called a basic intention need be proved--that is, an intention to do the act which constitutes the crime.
It was submitted that, since the foetus was not at the time of the unlawful act a living person, the offence of manslaughter could not be committed; and that, in any event, what constitutes a "dangerous act" for the purposes of the law of manslaughter has always been defined by reference to what all sober and reasonable people would recognise was dangerous towards persons who were alive when the danger manifests itself. These submissions were based on the response, of which the discussion in Regina v. Church [1965] 1 Q.B. 59 is a good example, which the law has adopted where the victim was already dead at the time of the unlawful act. If the person is already dead, his life is over and no further harm can be done. No act which is done to him now or in the future can be dangerous. The mens rea which a person has when doing an unlawful act to a person who is dead is not that which is required for manslaughter. So also a person who is already dead cannot be within the scope of the mens rea which the accused has when he does an unlawful and dangerous act to someone who is alive. But the case of the foetus presents a different problem. For the foetus, life lies in the future, not the past. It is not sensible to say that it cannot ever be harmed, or that nothing can be done to it which can ever be dangerous. Once it is born it is exposed, like all other living persons, to the risk of injury. It may also carry with it the effects of things done to it before birth which, after birth, may prove to be harmful. It would seem not to be unreasonable therefore, on public policy grounds, to regard the child in this case, when she became a living person, as within the scope of the mens rea which the defendant had when he stabbed her mother before she was born.
Then there is the question whether it is necessary for manslaughter that all sober and reasonable people would inevitably recognise that the accused&!!;s act must subject the child to the risk of injury at least some time after being born. I put the question in this way because it seems to be the logical way of expressing it if the definition by Edmund Davies J. in Regina v. Church [1966] 1 QB 59 , which was endorsed in D.P.P. v. Newbury [1977] AC 500 at p. 507A, is to be applied. What he said at p. 70 was:
I have emphasised the words "the other person" because these words, which lie at the heart of the question in this case, are not the same as those used by Humphreys J. in his passage to which Lord Salmon also referred with approval as an admirably clear statement of the law. The words which Humphreys J. used were "another person:" see the quotation from Lord Salmon's speech which I have set out later in this opinion, in which Lord Salmon also used words which appear to differ from those used by Edmund Davies J. on this point. I think that it is unlikely that any of these distinguished judges had in mind the unusual circumstances of this case when they were stating the principles to be applied in the case of unlawful act manslaughter. But if the test which Edmund Davies J. described is the right one, this would suggest that foreseeability of the risk of injury to the person who died as a result of the unlawful act is always an essential element for a conviction of manslaughter. It would also suggest that the accused cannot be found guilty of this crime unless his unlawful and dangerous act was directed at the person who was the ultimate victim of it.
I am not persuaded that either of these propositions is borne out by the authorities. In Regina v. Mitchell [1983] Q.B. 741 they were rejected, in the light of what Lord Salmon had said in Newbury . I have no doubt that that case was correctly decided on its own facts. But in my opinion the highly unusual circumstances of the present case require a more careful examination of the essential elements of this crime than was needed in Mitchell or in cases where there was only one victim of the accused&!!;s unlawful and dangerous act.
The first point to be made here is that to require the prosecutor to prove beyond reasonable doubt that it was reasonably foreseeable that an unlawful act such as that which was committed in this case would result in the risk of injury to the child some time after being born would make it very difficult in practice for him to obtain a conviction. It is one thing for him to be required to lead evidence to establish the chain of causation, in order to link the premature birth and the death due to the effects of that prematurity to the stabbing of the mother by the defendant. It is quite another for him to be required to lead evidence to prove that all sober and reasonable people would have foreseen that the defendant&!!;s act must subject the foetus to the risk that this would occur. The leading of the evidence is only part of the problem, because it would then have to be considered by the jury, and dealt with by the trial judge in the summing up. Trial by jury, which lies at the heart of our system of criminal justice, is a process which needs to be kept as simple as possible. The concepts which jurors are required to apply must be intelligible to ordinary people, which means that they need to be capable of being explained in a few words which ordinary people will understand and can apply without undue difficulty. The difficulty of proving that the act was likely to result in a live and not a still premature birth is in itself likely to make the requirement unworkable. On purely practical grounds therefore it is necessary to consider whether such a test is appropriate in these circumstances.
In Regina v. Dalby [1982] 1 W.L.R. 425, 428H Waller L.J. said that, in all the cases of manslaughter by an unlawful and dangerous act, the researches of counsel had failed to find any case where the act which led to the death of the victim was not a direct act. In that case the appellant had supplied to the deceased a number of tablets of a class A controlled drug. A substantial cause of his death was the intravenous consumption of the drug with which he had injected himself on receipt of it from the appellant. The appellant&!!;s conviction of manslaughter was quashed on the ground that, where a charge of manslaughter was based on an unlawful and dangerous act, the act must be directed at the victim and likely to cause immediate injury, however slight. In the judgment of the court, the unlawful act of supplying drugs was not an act directed to the person of the deceased, and the supply did not cause any direct injury to him. Waller L.J. summarised the effect of the cases to which the court was referred in this way at p. 429C:
But none of the examples which were discussed in Regina v. Dalby , which raised a different issue in view of the nature of the unlawful act of supplying the controlled drug, was concerned with the problem which arises here. In each of the cases which were cited as examples of an unlawful and dangerous act causing death which was held to be manslaughter the act was directed at the person who died as a result of it. In Regina v. Church [1966] 1 QB 59 the victim was a woman whom the appellant believed to be already dead when, after knocking her semi-conscious, he threw her into a river when she was still alive. In Director of Public Prosecutions v. Newbury [1977] AC 500 the victim was a train guard who was sitting next to the driver in the front cab when the appellants pushed a paving stone over the parapet of a bridge in the path of the oncoming train. It is important to notice that it was not suggested in that case that it was an essential element, in finding the appellants guilty of manslaughter, that their act was directed at the train guard in particular. It was enough that their act was dangerous because it was likely to injure some person on the train. This can be seen from the words used by the trial judge, Watkins J., who said at p. 502D:
Lord Salmon, in rejecting the argument that the trial judge should have told the jury that they should acquit unless they were satisfied that the appellants had foreseen that they might cause harm to someone by pushing the paving stone off the parapet into the path of the train, said at p. 506G that his direction was completely in accordance with established law. He went on to add this, at p. 506H:
Although the passage which Lord Salmon quoted from what was said by Humphreys J. might be taken as suggesting that the accused&!!;s act must have been directed against the other person who dies as a result of it, the circumstances of that case and Lord Salmon&!!;s own statement of the law both show that this is not an essential element of the offence. The only questions which need to be addressed are (1) whether the act was done intentionally, (2) whether it was unlawful, (3) whether it was also dangerous because it was likely to cause harm to somebody and (4) whether that unlawful and dangerous act caused the death.
I think, then, that the position can be summarised in this way. The intention which must be discovered is an intention to do an act which is unlawful and dangerous. In this case the act which had to be shown to be an unlawful and dangerous act was the stabbing of the child&!!;s mother. There can be no doubt that all sober and reasonable people would regard that act, within the appropriate meaning of this term, as dangerous. It is plain that it was unlawful as it was done with the intention of causing her injury. As the defendant intended to commit that act, all the ingredients necessary for mens rea in regard to the crime of manslaughter were established, irrespective of who was the ultimate victim of it. The fact that the child whom the mother was carrying at the time was born alive and then died as a result of the stabbing is all that was needed for the offence of manslaughter when actus reus for that crime was completed by the child's death. The question, once all the other elements are satisfied, is simply one of causation. The defendant must accept all the consequences of his act, so long as the jury are satisfied that he did what he did intentionally, that what he did was unlawful and that, applying the correct test, it was also dangerous. The death of the child was unintentional, but the nature and quality of the act which caused it was such that it was criminal and therefore punishable. In my opinion that is sufficient for the offence of manslaughter. There is no need to look to the doctrine of transferred malice for a solution to the problem raised by this case so far as manslaughter is concerned.
Conclusion
I would give these answers to the questions referred to the House by the Court of Appeal :
(i) This question does not arise on the facts of this case, so I would decline to answer it.
(ii) ( a ) Murder--No. ( b ) Manslaughter--Yes.
Question 1.2
( a ) Murder--Superseded. ( b ) Manslaughter--No.
LORD CLYDE
My Lords,
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Mustill and Lord Hope of Craighead. For the reasons which they both give I would answer the questions as they propose.