ATTENTION

Please note that this site is now an archive site and is no longer being updated. Updates ceased in May 2003.

For current information please go to

www.paclii.org

ttlcoursemat.jpg (2581 bytes)

LA205 - Criminal Law and Procedure 1 - Cases

 

ATTORNEY-GENERAL'S REFERENCE
(No 3 of 1994)

COURT OF APPEAL, CRIMINAL DIVISION
LORD TAYLOR OF GOSFORTH CJ, KAY AND STEEL JJ
13,14,24 NOVEMBER 1995

Criminal law-Murder-Child in utero–Accused inflicting knife injury on pregnant woman-Child born grossly premature with knife wound-Child later dying from lung condition unconnected with wound–Accused charged with child’s murder–Judge directing acquittal on grounds that conviction not possible in law–Whether injury to foetus constituting unlawful injury–Whether victim required to be person in being at time of act causing death–Requisite intent–Whether fact that child’s death caused as a consequence of injury to mother precluding liability for murder or manslaughter–Criminal Justice Act 1972, s. 36.

In May 1990 the respondent stabbed his girlfriend, who was to his knowledge pregnant with his child. No injury to the foetus detected respondent on, pleaded guilty to a charge of wounding his girlfriend grievous bodily harm. In June 1990 the respondent’s to grossly premature daughter who was considered to have only a 50% chance of survival. At the time of the birth it was clear that, contrary to earlier the knife had penetrated the foetus. The child died 120 days later from a lung condition unconnected with the knife wound and the respondent was thereafter charged with her murder. At trial, the judge directed an acquittal on the ground that no conviction for either murder or manslaughter was possible in law. Under s 36(1) of the Criminal justice Act 1972 the Attorney General subsequently referred to the Court of Appeal the questions (i) whether, subject to proof of requisite intent, the crimes of murder or manslaughter could be committed f where unlawful injury was deliberately inflicted to a child in utero or to a mother carrying a child in utero where the child was subsequently born alive, existed independently of the mother and then died, the injuries in utero either having caused or made a substantial contribution to the death and (ii) whether the fact that the child’s death was caused solely as a consequence of injury to the mother rather than as a consequence of direct injury to the foetus could remove any liability for murder or manslaughter in those circumstances.

Held-(1) 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 circumstances where the child was subsequently horn alive, enjoyed an existence independent of its mother and thereafter died, and where the injuries inflicted while in utero caused or contributed substantially to the death. Injury to the foetus was just as unlawful as any assault upon any other part of the mother, since before birth the foetus was treated as part of the mother until it had a separate existence of its own, and there was no requirement that the person who j died should be a person in being at the time the act causing the death was perpetrated (see p 17 e, p 20j to 21 a and p 22 c d, post).

(2) The requisite intent to be proved in a case of murder in those circumstances was an intention to kill or cause really serious bodily injury to the mother, since the foetus before birth was regarded as an integral part of the mother, and there was no reason to prevent the operation of the concept of transferred malice, provided the jury was satisfied that the death was caused by the act of the accused. No difference in approach was required in relation to manslaughter with appropriate modifications for the level of intent. Accordingly, the fact that the death of the child was caused solely as a consequence of injury to the mother rather than injury to the foetus did not negative any liability for murder and manslaughter, provided that the jury were satisfied as to causation (see p. 18 d, p 19 a, p 20 f to p 21 a and p 212 c post); R v Mitchell [1983] 2 All ER 427 applied.

Notes

For unlawful killing of a person, see 11(1) Halsbury’s Laws (4th edn., reissue) para 427.

Cases referred to in judgment

McCluskey v HM Advocate [1989] RTR 182, HC of Justice.
R v Kwok Chak Ming (No 1) [1963] HKLR 226, HKHC: rvsd on other grounds [1963] HKLR 349, HK C.A.
R v. Latimer (1886) 17 QBD 359, [1886-90] All E.R Rep 356.
R v. Mitchell [1983] 2 All ER 427, [1983] QB 741, [1983] 2 WLR 938. C.A.
R v Senior (1832) 1 Mood CC 346, 168 E.R 1298.
R v West (1848) 2 Car & Kir 784, 175 E.R 329.

Cases also cited or referred to in skeleton arguments

Burton v Islington Health Authority, de Martell v Merton and Sutton Health Authority [1992] 3 All ER 833, [1993] QB 204, C.A.
R v Chesire [1991] 3 All ER 670, [199 111 WLR 844. C.A.
R v Crutchley (1837) 7 C & P 814,173 ER 355.
R v Enoch (1833) 5 C & P 539, 172 ER 1089.
R v Pagett (1983) 76 Cr. App. R 279, C.A.
R v Selhis (1837) 7 C & P 850,173 ER 370.
R v Sheppard [1919] 2 KB 125, [1918-19] All ER Rep 374, CCA.

Reference

The Attorney General referred to the court under s 36(1) of the Criminal Justice Act 1972 the following questions for consideration: (i) whether, subject to proof by the prosecution of the requisite intent in either case, the crimes of murder or manslaughter can be committed where unlawful injury is deliberately inflicted (a) to a child in utero or (b) 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, and (ii) 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 (i). The issues arose out of a prosecution of the respondent for murder, in which Holland J. sitting in the Crown Court at Leeds on 6 July, 1993 directed the jury to acquit on the grounds 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.

The facts are set out in the opinion of the court.

Robert Smith QC and David Calvert-Smith (instructed by the Crown Prosecution Service) for the Attorney General.
Simon Hakesworth QC and Andrew Lees (assigned by the Registrar of Criminal Appeals) for the respondent.

Cur adv vult

24 November 1995. The following opinion of the court was delivered.

LORD TAYLOR OF GOSFORTH CJ. This case comes before the court on a reference by Her Majesty’s Attorney General under s 36 of the Criminal Justice Act 1972.

The respondent was charged with murder and was acquitted by direction of the trial judge. In consequence of the judge’s ruling the Attorney General has referred a point of law for the opinion of this court. The point of law is formulated as follows:

‘1.Subject to proof by the Prosecution of the requisite intent in either case whether the crimes of murder or manslaughter can he 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 l.’

The facts

The facts that led to the charge of murder were that on 26 May 1990 the respondent stabbed his girlfriend who was to his knowledge pregnant with his child The stab wounds included one to the left lower abdomen which penetrated the uterus and the abdomen of the foetus.

The judge summarised the extent of the evidence as to the stage of pregnancy at the time in this way.

‘The contemporaneous belief was that the period of gestation to that date had been 22 weeks Subsequent events suggested the period might have been nearer 24 weeks. If the period were 22 weeks, [the child] could not then be born so as to survive. If the period were 24 weeks, [the child] could have been born with a remote chance of survival put by Dr. Dear at 10%. At all events the pregnancy had been so far uneventful and her then chance of proceeding to full term labour was good with interim premature Labour assessed as a 1 in 1,000 risk’

Following the stabbing the girlfriend was admitted to hospital. Surgery was performed and a cut to the wall of the uterus was found The belief then, which later proved to be mistaken, was that there had been no injury to the foetus itself. Accordingly the doctor limited his intervention to sewing up the wall and prescribing a course of the drug indomethacin to prevent the onset of premature labour.

The girlfriend made a good recovery and was discharged from hospital. However, on 11 June, without any further trauma, she suddenly went into labour and gave birth to a daughter. The size of the child at birth suggested that the period of gestation was more likely to he 26 weeks rather than the 24 weeks which had been believed to be the case. In any event the child was grossly premature, although she was then considered to have a 50% chance of survival. At the time of birth it was dear that the knife had, contrary to the earlier belief. penetrated the foetus and had cut through the left side of the abdomen.

The child survived for 120 days, receiving intensive neonatal care which the judge described as ‘of an exemplary nature’. Such care included a number of surgical operations.

The judge summarised the evidence as to death in the following way:

‘The cause of death was a lung condition, broncho-pulmonary dysplasia which arose in the consistent failure of her lungs to function naturally and from the complications that inevitably arise from sustained reliance upon a ventilator, all such in turn arising from the premature birth. In essence, she was one of the 50% who statistically do not survive premature birth at 24-26 weeks. The injuries to her inflicted by the knife were repaired under gene anaesthetic and made no direct contribution to her death, save through such strains arising from operative procedures as compounded the problems arising from immaturity.’

The respondent was charged with wounding his girlfriend with intent to cause her grievous bodily harm. Before the death of the child he admitted that charge and was sentenced to four years’ imprisonment, although at the subsequent murder trial the conviction was not adduced before the jury. After the death of the child, the respondent was charged with murder of the child and it is the trial of that charge that results in this reference.

At the conclusion of the prosecution case, submissions were made on behalf of the respondent (1) that the evidence tendered to prove the vital causal link between the wounding and the death was insufficient for the case to be left to the jury; and in the alternative (2) that as a matter of law, even if the causal link could be established, the facts could not give rise m a conviction for either murder or manslaughter.

The judge ruled that there was evidence upon which a reasonable jury could conclude that the causal connection had been established, although, as he observed, whether they would in the light of already conflicting evidence on the subject was outside his concern. This reference is not in any way concerned with that ruling. He then 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 acquittal of the respondent.

The principles suggested on behalf of the Attorney-General

The arguments that were advanced in the court below and before us were presented on behalf of the Crown by Robert Smith QC and on behalf of the respondent by Simon Hawkesworth QC and we record at once our indebtedness to each of them for the considerable assistance that they have provided by the quality and clarity of the submissions that they have made.

At the outset of his submissions Mr Smith set out four principles that he hoped to persuade the court were right, as follows. Where a child is born alive and subsequently dies from injuries sustained by the child or the mother while the child is in utero: (1) if an accused has inflicted a deliberate and unlawful injury to a child in utero intending so to do, he has committed an offence of manslaughter or murder depending upon what intent is proved and subject to proof of causation, i.e. that the deliberate and unlawful act caused the death; (2) if the accused’s intent to inflict injury is to the mother alone and not to the foetus, the offence of manslaughter or murder, subject to the same qualifications, is made out by the doctrine of transferred malice; (3) the fact that the foetus is not a person in being at the time of the unlawful act which is proved to have caused death is no impediment to a successful prosecution for murder or manslaughter laughter. provided the child is subsequently born alive and achieves an existence independent of the mother., and (4) the fact that the mens rea of murder is not directed to a person in being but to a child in the womb is not an impediment to a successful prosecution. It is sufficient that the mens rea is directed to a child capable of becoming a person in being or to the mother when she is carrying a child. capable of becoming a person in being.

We turn, therefore, to consider the law in the light of Sir Smith’s propositions.

The position at common law

We have been referred to considerable learning on the position at common law and to the limited number of authorities that cast light upon that position. We can, however, deal with the matter relatively shortly because the effect of the Homicide Act 1957 upon the mens rea for murder so alters the position that, save perhaps in one area, the pre-1957 law is of limited relevance to the issue upon which our opinion is sought.

Coke in his Institutes of the Laws of England (3 Co Inst (1680) 50) says:

‘If a woman be quick with child, and by a potion or otherwise killeth it in her womb; or if a man beat her, whereby the child dieth in her body. and she is delivered of a dead child, this is great misprision, and no murder...’

We are in no doubt that his conclusion that such a killing is not murder still represents an accurate statement of the law. Such facts may now give rise to the statutory offence of child destruction created by the Infant Life (Preservation) Act 1929 or an abortion offence contrary to s 58 of the Offences against the Person Act 1861, but they cannot constitute murder or manslaughter.

Coke continued:

‘…but if the child be born alive, and dieth of the portion, battery, or other cause, this is murder: for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.’

Coke referred to a decision in 1327 (1 YB Edw 111 23) in a case where a defendant had beaten a woman who was pregnant with twins. As a result one was stillborn, and the other died two days after its baptism. When the matter came before the court Scrope J declined to treat it as felony. Coke’s view was that this decision was ‘never holden for the law’ which we understand to mean was never adopted by the other judges as the law.

The contrary view was put forward in Hale’s Pleas of the Crown (1 Hale PC (1778) 433):

‘If a woman be quick or great with child, if she take, or another give her any potion to make an abortion, or if a man strike her, whereby the child within her is killed, it is not murder nor manslaughter by the law of England, because it is not yet in rerum natura, though it be a great crime and by the judicial law of Moses was punishable with death, nor can it legally be known, whether it were killed or not... So it is, if after such child were born alive, and baptised, and after die of the stroke given to the mother, this is not homicide.’

Commentators have sought to explain Hale’s view by reference to his assertion nor can it legally be known, whether it were killed or not which may have been true on the state of medical knowledge as it stood at the date when Hale wrote, but which can no longer be said to represent the position today. However, as Mr. Hawkesworth argues, to attribute Hale’s view solely to the impossibility of proof of causation is to ignore the words ‘because it is not yet in rerum natura’.

Hawkins, East and Blackstone all favoured the view of Coke rather than that of Hale.

Two reports of nineteenth century cases are relied upon by the Crown. The headnote in R v Senior (1832) 1 Mood CC 346,168 ER 1298 reads:

‘Giving a child, whilst in the act of being born, a mortal wound in the head soon as the head appears, and before the child has breathed, will if the child is afterwards born alive, and dies thereof, and there is malice, be murder.’

The trial was in fact on a charge of manslaughter and the resulting conviction was considered by all the judges except two at a subsequent meeting and they unanimously held that the conviction was right.

In R v West (1848) 2 Car & Kir 784, 175 ER 329 the headnote reads:

‘If a person, intending to procure abortion, does an act which causes a child to be born so much earlier than the natural time, that it is born in a state much less capable of living, and afterwards dies, in consequence of its exposure to the external world, the person who, by this misconduct, so brings the child into the world, and puts it thereby in a situation in which it cannot live, is guilty of murder, and the mere existence of a possibility that something might have been done to prevent the death, would not render it less murder.’

More detailed examination of the old law is unnecessary because it has to be borne in mind that until 1957 the felony-murder rule applied so that where, in the course of committing a felony, a death was caused, murder was established without the need to prove any further intention.

The position since 1957

Section 1 of the 1957 Act abolished the felony-murder rule so as to make the required mens rea no different if a killing was in the course or furtherance of a felony from a killing in any other circumstances. The law is now clearly settled that a person can only be guilty of murder if, at the time, he either intends to kill or cause really serious bodily injury.

These changes mean that considerations arise now 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, can no longer determine the issues we are invited to consider.

We have found it helpful to start from a consideration of those matters that need to be proved by the prosecution on a charge of murder and to consider whether any of those elements make any specific provision to cater for the unusual circumstances of a case such as this.

The classic definition of murder at common law was given by Coke (3 Co Inst 47):

‘Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the memory, unlawfully realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought either expressed by the party, or implied by law, so as the party wounded or hurt and die of the wound, or hurt and within a year and a day after the same.’

Leaving aside such matters as provocation and diminished responsibility. Which have no bearing upon the issues presently under consideration, the prosecution must prove the following elements:(1) that the defendant did an act; (2) that the act was deliberate and not accidental; (3) that the act was unlawful; (4) that the act was a substantial cause of a death; (5) that the death was of a person in being; (6) that death resulted within a year and a day; and (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 represent the actus reus of murder and if any is absent the actus reus will not be established. Element 7 is the mens rea of murder for which the old expression, malice aforethought, was used.

The actus reus of murder

Clearly in a case such as that being considered the first and second elements are simply a matter of evidence and present no particular problem of law. The third element of unlawfulness does require further discussion in the light of a submission made by Mr Hawkesworth that to cause injury to a foetus is not m itself unlawful. He argues that since the foetus has no separate existence, causing an injury to it is not unlawful unless it comes within the scope of one of the statutory offences such as child destruction or abortion. We reject that submission. In law the foetus is treated as a part of the mother until it has a separate existence of its own. Thus to cause injury to the foetus is just as unlawful as any assault upon any other part of the mother.

Mr Hawkesworth cautioned us that conclusions adverse to the respondent’s submissions might render a doctor who carried out a lawful abortion liable to conviction if the foetus was born alive as a result of a lawful abortion and then died thereafter. His reasoning was that the Abortion Act 1967, as subsequently amended only provides that a registered medical practitioner shall not be guilty of an offence under the law ‘relating to abortion’ and says nothing about not being liable on a charge of murder.

In our judgment, Mr Hawkesworth's concerns in this regard are misplaced. A doctor who carries out an abortion in accordance with the 1967 Act is not acting unlawfully and hence, were such a doctor to be charged with murder, the charge would fail because the element that the act must be unlawful could not be made out. Just as a doctor who causes death in a bona fide surgical operation is not guilty because he does nothing unlawful, so would a doctor carrying out a lawful abortion be similarly protected. In the course of argument, the situation of a foetus being born alive consequent upon a lawful abortion and subsequently being neglected or killed was touched upon, but such, questions have no relevance to the issues which are raised by this reference and we make dear that we have given no consideration to them.

The fourth element to be established on a charge of murder is that the act was a substantial cause of death. This was the element that Hale doubted could ever be established, but clearly on medical evidence today a jury might properly be so satisfied. In the instant case there was a submission that the evidence was inadequate for a jury to reach a conclusion to that effect. The judge ruled against that submission and although the matter has not been argued before us he was, in so far as we can judge, right so to do.

The fifth element is that the death must be of a person in being. In its simplest form this means that to cause the death of a foetus in the womb cannot be murder. However, the situation under consideration raises the question whether the child needs to be in being at the time when the act causing death is done by the defendant. Clearly, when the respondent stabbed his girlfriend the child was not a person in being. It is at this point of the argument and for this purpose alone that Mr Smith places reliance upon the pre-1957 common law in support of his third principle, namely that the fact that the foetus is not a person in being at the time of the unlawful act which is proved to have caused death is no impediment to a successful prosecution for murder or manslaughter provided the child is subsequently born alive and achieves an existence independent of the mother. He argues that in this respect the 1957 Act did not change the law and that if the cases of Senior (1832) 1 Mood CC 346,168 ER 1298 and West (1848) 2 Car & Kir 784, 175 ER 329 correctly represented the law. the law in this respect remains unaltered.

We have concluded that there is no requirement that the person who dies needs to be a person in being at the time that the act causing death is perpetrated. That, we are satisfied, was the position at common law and to hold otherwise would produce anomalies of an unacceptable kind. For example, a defendant who poisoned the water of a pregnant woman intending her to drink it and be killed, would not be guilty of murder if the woman gave birth to a child and then made up a bottle for the baby using the poisoned water which killed the child. On the other hand, if at the time of the poison being added, the child had already been born, and the mother for whom it was intended used the poisoned water precisely the same way with the same consequences, it would amount to murder.

The sixth element, that death must result within a year and a day, 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 is currently the subject of debate but it has no relevance to our considerations.

The mens rea of murder

Thus we turn to the mental element of the crime of murder. Thus it is argued on behalf of the Attorney General that the Crown can succeed in one of two ways, if the jury are satisfied that the defendant at the time when he did the act intended to kill or cause really serious bodily injury to the foetus, then it is said that this will suffice provided ‘the intention is directed to a child capable of becoming a person in being’ at a later date. In the alternative it is argued that an intention to kill or cause really serious bodily injury to the mother will suffice by reason of the doctrine of transferred malice.

In Smith and Hogan Criminal Law (7th edn, 1992) p 329, the authors’ view of the position is stated as follows:

‘In modern law, however, a person who intends to kill or cause serious injury to an unborn child does not have the mm rea for murder-he does not intend to kill or cause serious injury to a person in being-and should not he liable to conviction of that offence. If the child is born alive and dies of the injury inflicted with that intent he might be guilty of manslaughter if there was an obvious and serious risk... that this might occur. If D’s intention was to cause the death or serious injury to the mother he would, by ‘transferred malice’, be guilty of murder of the child who was born alive and died of the injury so inflicted.’

In so far as that passage, by implication if not expressly, rejects the concept of an intention directed towards a child capable of becoming a person in being, we agree. The concept is a wholly new one that it is sought to introduce and we do not see it as either necessary or desirable to add this gloss to the law.

That is not to say that we think if an intention is directed towards the foetus a charge of murder must fail. In the eyes of the law the foetus is taken to be a part d of the mother until it has an existence independent of the mother. Thus an intention to cause serious bodily injury to the foetus is 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. Thus consideration of whether a charge of murder can arise where the focus of the defendant’s intention is exclusively the foetus falls to be considered under the head of transferred malice, as is the case where the intention is focused exclusively or partially upon the mother herself.

Transferred malice

It is, therefore, necessary to consider the concept of transferred malice in order to answer the questions posed in this reference. At its simplest the concept is that if a defendant intends to kill or cause really serious bodily injury to A but instead kills B, he is as guilty of the murder of B as if the object of his intentions had been B rather than A.

Mr Hawkesworth mounts his principal challenge to Mr Smith’s contentions m this regard. He raises three arguments. (1) In applying the doctrine of transferred malice there is plainly a distinction to be drawn between transferring the malice of an offence of stabbing the mother, where the actus reus is the infliction of a stab wound, and the offence of murder here alleged, which is causing the death of the child by bringing about its birth at such a premature stage that it could not survive. The actus reus of the two crimes does not coincide, so that malice cannot be transferred. (2) All such cases proceed upon the assumption that at the time of the assault or blow aimed at A there is at the same time another person in being, B, namely the person who is the unintended victim. Since at the time of the stabbing the foetus was not a person in being, it could not be the subject of an offence contrary to s 18 of the 1861 Act. (3) In terms of causation the birth and eventual death of the baby was so far removed from the event of stabbing that malice cannot be transferred.

It is perhaps convenient to deal first with the second of those contentions that malice cannot be transferred to a person who is not in being at the time of the act causing death. It is important to observe that malice cannot in any. event be transferred until such time as the act affects the victim. For example, if a defendant sends a box of poisoned chocolates to A but B eats them and dies, it can only be at the moment when B places a chocolate in his mouth that any question of transfer of malice can arise. That time would in such circumstances of necessity be significantly after the act done by the sender.

We can see no reason to hold that malice can only be transferred where the person to whom it is transferred was in existence at the time of the act causing death. It is pertinent to observe that a sufficient intention may be directed at no individual but rather there may be an indiscriminate intention which will suffice. Thus a defendant who introduces poison into baby food on a supermarket shelf with an intention to kill some wholly, unidentified child is clearly guilty of murder if a child later dies from eating the poisoned food it would be a remarkable state of affairs if such a person was only guilty of murder if the child had already been born at the date when the poison was introduced to the food. If in such cases of general malice there is no requirement that the child should already have been born, it is not easy to see why there should be a distinction drawn when malice is instead transferred from an intended victim to an unintended one The example given earlier of poisoned water intended for the pregnant woman but used to make a bottle for the child demonstrates the possible unsatisfactory conclusions that would arise from such a rule.

In support of his first and third contentions, Mr Hawkesworth has directed our to passages in Professor Glanville Williams Criminal The General Part (2nd edn., 1961) pp 125-127, 132-134. The author contends (p. 125,132–133):

‘Although the decided cases do not show it, there can be no doubt that an unexpected difference of mode will be regarded as severing the chain of causation if it is sufficiently far removed from the intended mode. There is another way in which it seems that the rule may he circumscribed. Hitherto it has been applied only in gross cases, and although there are no dear authorities on the bounds to be set to it, the rule should be confined to cases where it appears to conform to the plain man’s view of justice, and so should be limited to cases where the consequence was brought about by negligence in relation to the actual victim.’

To illustrate the second proposition Professor Williams says:

‘Thus suppose that D shoots at O intending to kill him; the shot misses O and kills P, who, unknown to D was behind a curtain at the time. If P’s presence could not possibly have been foreseen by D, it may be thought to be going too far to convict him of the murder of P.’

We, for our part, do not find Professor Williams exoneration of D in respect of murder to be self-evidently ‘the plain man’s view of justice’ in the example he poses.

Professor Williams, as appears from the quoted passages, no authority in support of either of his propositions. The only authority to which he makes reference in respect of the second proposition is R v Latimer (1886) 17 QBD 359, [1886-90] 1 All ER Rep 386, which he acknowledges to be against his contention.

In R v Mitchell [1983] 2 All ER 427, [1983] QB 741, decided after the date of Professor Williams’ quoted work, this court considered a conviction for manslaughter arising where a defendant in the course of a quarrel in a queue hit another man, causing him to fall against an elderly woman who suffered a broken leg, an injury from which it appeared she was recovering until she suffered a pulmonary embolism which caused her death. No qualification of die sort contended for was introduced in that case. The headnote of the case records the decision of the court as follows:

‘Held, dismissing the appeal, that to constitute the offence of manslaughter it was not necessary to establish that the unlawful and dangerous act was aimed at, or involved a direct attack or impact upon, the person who died, and that, accordingly, although the appellant had aimed no blow and had no physical contact with the woman who died, she was injured as a direct and immediate result of his act and died thereafter, and it was open to the jury to conclude that her death was caused by the appellant’s act.’(See [1983] QB 741)

Mr Hawkesworth has highlighted the words ‘direct’ and ‘immediate result’ but the context in which those words were used by Staughton J in giving the judgment of the court was as follows ([1983] 2 All ER 427 at 432. [1983] QB 741 at 748):

‘Although there was no direct contact between Mitchell and Mrs. Crafts, she was injured as a direct and immediate result of his act. Thereafter her death occurred. The only question was one of causation: whether her death was caused by Mitchell’s act. It was open to the jury to conclude that it was so caused; and they evidently reached that conclusion.’

We do not understand that the court was intending thereby to make the ‘immediate’ causing of injury a requirement of a conviction m such circumstances. In that particular case it was the fact that the injury was caused immediately and the relevance of that fact was that the court did not have to consider any questions of causation that might have arisen in different circumstances.

Although not directly to the point, we find the approach of suggesting that such matters go to causation of assistance. It is dear from Mitchell’s case that it is unnecessary for the precise mechanism of death to be foreseen in manslaughter and we are satisfied that the same is true for murder. We do not think it is fight or necessary to reintroduce any question of causation at the stage when mens rea falls to be considered. Provided that the jury are satisfied that the death was caused by the defendant’s act, then we see no mason why the concept of transferred malice should not operate.

Obviously, if the mode of death is utterly remote, there may be circumstances in which this could be regarded as severing the chain of causation, but in the instant case we cannot see that it should matter whether the child dies 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, we can see no justification for the proposed qualification that some degree of negligence towards the intended victim is required. Thus we can see no reason to conclude that the doctrine of transferred malice is excluded in a situation such as falls to be considered in the reference.

Manslaughter

The focus of our attention so far has been on the law relating to a charge of murder. The reference also raises questions relating to a charge of manslaughter In the light of our conclusions relating to murder, we cannot see that any different approach is required and none has been suggested to us in argument. Clearly, the intention required for manslaughter will be less than that required to establish murder but, with appropriate adjustment, we can see no reason to reach a different conclusion.

Recent authorities in other jurisdictions

We have been referred to two decisions in other jurisdictions where similar questions to those before us have arisen and it is helpful to consider them in the light of our conclusions. In a Hong Kong case, R v Kwok Chak Ming (No.1) [1963] HKLR 226, the court was dealing with similar facts to those in this case, save that the cause of death was the stabbing of the foetus before it was born and not the inducing of premature birth. Jennings J, after reviewing much the same material as that placed before us, concluded that where a child is born alive but dies from an injury received before it is born, it could be murder and that accordingly there was in that case a case to go before the jury. The Hong Kong Court upheld that ruling saying ([1963] HKLR 349 at 354-355):

‘In our view, when a baby is born alive but subsequently dies is a injury inflicted on it whilst in its mother’s womb, the person indicating injuries may, when the other ingredients of murder or manslaughter are present, be convicted of such a crime in respect of that child. It is, in our view, immaterial that, in such circumstances, the malice aforethought have been directed against the mother rather than the child that where A, intending to kill or seriously injure B, pursuit of that purpose, kills C he may be indicted for the murder of C applies, we think, with equal force even where C was only an embryo, or foetus at the time when the malice was manifested and the injury indicted but is subsequently born alive and dies of the injury.’

It follows from what we have said that in that case we would have reached the same conclusion. The only way in which we would have departed from the ruling of Jennings J. was when he said in the course of his judgment at 233:

‘Since, however, it would be most unlikely in an ordinary case of stabbing for a person other than the one at whom the stab was directed to be grievously hurt by that stab, unless that person was pregnant. I would direct the jury that before it would be safe to convict the accused of the murder of this child they would first have to be sure that the accused knew or ought to have known that the mother was pregnant at the time of the stabbing.’

This would be to introduce into the concept of transferred malice the requirement of negligence towards the actual victim which we have rejected.

The other decision is a Scottish case, McCluskey v HM Advocate [1989] RTR 182h The case concerned a charge of causing death by reckless driving pursuant to s 1 of the Road Traffic Act 1972 (as amended). which provided: ‘A person who causes the death of another person by the driving of a room vehicle on a road recklessly... shall be guilty of an offence.’

The appellant had been convicted of causing the death of a child who had been in utero at the time of an accident caused by the driving of the appellant but who had been born alive prematurely by caesarean section in of the accident only to die from the injuries sustained in the accident whilst in utero The High Court of Justiciary ruled that in such circumstances a conviction for the statutory offence was proper. There was nothing in the common law of either Scotland or England that required that culpable homicide in Scotland or manslaughter in England should be confined to the death of a person who was alive at the time when the injuries causing death were inflicted. Hence there was no potential anomaly relating to this form of culpable homicide that might otherwise have required that ‘the death of another person’ must relate only to the death of a person alive at the time of the act of reckless driving. Whilst we recognise that our decision is more far-reaching than that conclusion the two are at least consistent in their approach.

Conclusions

Our conclusions differ from those reached by the judge and it follows that we would have ruled that there was a case to go to the jury. That said, it should perhaps be recorded that on the state of the medical evidence even before the defence raised any evidence of its own it is far from dear that a jury was likely to be satisfied on the issue of causation. However, on our conclusions as to the law the matter was one for the jury and not the judge.

It follows from the above that in our opinion the two pose posed in he reference should be answered in the following way, (1) Yes. Murder or manslaughter can be committed where unlawful injury is 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 is 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 is appropriately modified in the case of manslaughter. (2) No. The fact that the death of the child is caused solely in consequence of injury to the mother rather than as a consequence of injury to the foetus does not negative any liability for murder and manslaughter provided that the jury, are satisfied that causation is proved.

Opinion accordingly.
Leave to refer questions to the House of Lords granted.

N P Metcalfe Esq. Barrister.

--------------------------------------------------