House of Lords
Session 1997-98
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Judgments - Attorney General's Reference No. 3 of 1994


  Lord Goff of Chieveley   Lord Mustill   Lord Slynn of Hadley
  Lord Hope of Craighead   Lord Clyde



ON 24 JULY 1997


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.


My Lords,

    Murder is widely thought to be the gravest of crimes. One could expect a developed system to embody a law of murder clear enough to yield an unequivocal result on a given set of facts, a result which conforms with apparent justice and has a sound intellectual base. This is not so in England, where the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning. One conspicuous anomaly is the rule which identifies the "malice aforethought" (a doubly misleading expression) required for the crime of murder not only with a conscious intention to kill but also with an intention to cause grievous bodily harm. It is, therefore, possible to commit a murder not only without wishing the death of the victim but without the least thought that this might be the result of the assault. Many would doubt the justice of this rule, which is not the popular conception of murder and (as I shall suggest) no longer rests on any intellectual foundation. The law of Scotland does very well without it, and England could perhaps do the same. It would, however, be fruitless to debate this here, since the rule has been established beyond doubt by R. v. Cunningham [1982] A.C. 566. This rule, which I will call the "grievous harm" rule, is the starting point of the present appeal.

    As will appear, the events which founder the appeal were never conclusively proved at the trial, but are assumed to have been as follows. At the time in question a young woman M was pregnant, with between 22 and 24 weeks of gestation. According to the present state of medical knowledge if her baby had been born after 22 weeks it would not have had any significant of prospect of survival. Two further weeks would have increased the chance to about 10 per cent. The pregnancy was, however, proceeding normally, and the risk that it would fail to continue to full term and be followed by an uneventful birth was very small indeed. Sadly, however, the natural father B quarrelled with M and stabbed her in the face, back and abdomen with a long-bladed kitchen knife in circumstances raising a prima facie inference that he intended to do her grievous bodily harm. M was admitted to hospital for surgical treatment and was later discharged in an apparently satisfactory state, still carrying the baby. Unfortunately, some 17 days after the incident M went into premature labour. The baby, named S, was born alive. The birth was still grossly premature, although by that time the chance that the baby would survive had increased to 50 per cent. Thereafter S lived for 121 days, when she succumbed to broncho-pulmonary dysplasia from the effects of premature birth. After her birth it was discovered that one of the knife cuts had penetrated her lower abdomen. The wound needed surgical repair, but it is agreed that this "made no provable contribution to her death".

    The case for the Crown at the trial of B was that the wounding of M by B had set in train the events which caused the premature birth of S and hence her failure to achieve the normal prospect of survival which she would have had if the pregnancy had proceeded to full term. In this sense, therefore, we must assume that the wounding of M, at a time when S was a barely viable foetus, was the reason why she later died when she did.

    Meanwhile, B had been prosecuted for an offence of wounding the mother with intent to cause her grievous bodily harm, had pleaded guilty and had been sentenced to a term of four years' imprisonment. After S died he was charged again, this time with the murder of S, to which he pleaded not guilty. At his trial a submission was advanced that on the evidence no criminal offence relating to S was proved. In a considered ruling the trial judge upheld that submission, as regards the offences of both murder and manslaughter. I leave aside the first submission for the defence, to the effect that causation between the wounding of the mother, the premature birth and the subsequent death of S had not been established on the evidence. This failed before the judge and has not been renewed. The gist of the ruling lay in the law, and was to the effect that both the physical and the mental elements of murder were absent. There was no relevant actus reus, for the foetus was not a live person; and the cause of the death was the wounding of the mother, not of S. As to mens rea again there was none. When B stabbed the mother he had no intent to kill or do serious harm to any live person other than the mother, or to do any harm at all to the foetus. The Crown could not make good this deficiency by reliance on the concept of "transferred malice", for this operates only where the mens rea of one crime causes the actus reus of the same crime, albeit the result is in some respects unintended. Here, the intent to stab the mother (a live person) could not be transferred to the foetus (not a live person), an organism which could not be the victim of a crime of murder.

    As to the alternative verdict of manslaughter the judge was at first exercised by the possibility that since the stabbing of M was an unlawful and dangerous act which led to the death of S a conviction could be sustained even though the act was not aimed at the ultimate victim: see R. v. Mitchell [1983] Q.B. 741. In the end, however, he was persuaded that this approach could not be sustained where there was at the material time no victim capable of dying as a direct and immediate result.

    Accordingly, the trial judge directed the jury to acquit the defendant.

    Considering that this ruling should be reviewed the Attorney-General referred the matter to the opinion of the Court of Appeal under section 36 of the Criminal Justice Act 1972. The point of law referred was as follows:

     "1.1 Subject to the 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.

     "1.2 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 1.1."

    The Court of Appeal [1996] Q.B. 581 saw the matter differently from the judge. Having first rejected the concept that an intent directed at the foetus as "a child capable of becoming a person in being" was sufficient to found a conviction for murder the judgment continued, at p. 593:

     "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 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."

    From this starting-point the court went on to hold that it made no difference whether the death resulted from prematurity or from a stab-wound suffered by the foetus itself, for the element of causation was present in each case; and also that no degree of negligence was required for the operation of transferred malice. A conviction for murder would therefore be justified on the assumed facts.

    Turning to manslaughter, the court dealt with the question very briefly, seeing no reason for a difference in approach from the case of murder, although the intention required would be less.

    In the result, the court answered the first of the referred questions in the affirmative, adding, at p. 598:

     "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."

The court answered the second question in the negative, provided the jury is satisfied that causation is proved. The accused person now brings the matter before this House, and maintains that the answers given to both questions were wrong, and that the ruling of the trial judge was right.

I. Murder

    The first of the questions referred involves a number of alternative assumptions of fact concerning both the act of the defendant and the intent with which it was done. For the moment I will concentrate entirely on the hypothesis that the unlawful injury was directed to the mother alone, with the intention of hurting the mother alone. On these assumed facts I will begin by considering the issue of murder. At this stage I will leave out of account the subsidiary question whether a person who causes the mother to deliver a child prematurely so that it dies in the natural course can be said to kill the child, so as to bring the law of homicide into play.

A. Established Rules

    The able arguments of counsel were founded on a series of rules which, whatever may be said about their justice or logic, are undeniable features of the criminal law today. I will begin by stating them. Next, I shall describe two different ways in which the arguments for the Crown build on these rules, and will follow with reasons for rejecting one of these quite summarily. Closer examination is needed for the other, to see whether its historical origins are sound. Finally, an attempt will be made to see whether a principled answer can be given to the questions posed by the Attorney-General. I perceive the established rules to be as follows.


It is 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.

    Although it will be necessary to look at the reasoning which founded this rule, it is undeniably a part of English law. (See R. v. Vickers [1957] 2 Q.B. 664; Hyam v. D.P.P. [1975] A.C. 55; R. v. Cunningham [1982] A.C. 566. Thus, if M had died as a result of the injuries received B would have been guilty of murdering her, even though in the everyday sense he did not intend her death.

2.If the defendant does an act with the intention of causing a particular kind of harm to B, and unintentionally does that kind of harm to V, then the intent to harm B may be added to the harm actually done to V in deciding whether the defendant has committed a crime towards V.

    This rule is usually referred to as the doctrine of "transferred malice", a misleading label but one which is too firmly entrenched to be discarded. Nor would it possible now to question the rule itself, for although the same handful of authorities are called up repeatedly in the texts they are constantly cited without disapproval. See especially R. v. Pembliton (1874) 2 L.R.2 C.C.R. 119 and R. v. Latimer (1886) 17 Q.B.D. 359. Counsel rightly did not seek to deny the existence of the rule although, here again, it will be necessary to examine its rationale.

3.Except under statute an embryo or foetus in utero cannot be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not a murder.

    The foundation authority is the definition by Sir Edward Coke of murder by reference to the killing of "a reasonable creature, in rerum natura:" Co. Inst., Pt. III, ch.7, p. 50. The proposition was developed by the same writer into examples of prenatal injuries as follows:

     "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 a great misprision, and no murder . . .".

It is unnecessary to look behind this statement to the earlier authorities, for its correctness as a general principle, as distinct from its application to babies expiring in the course of delivery or very shortly thereafter, has never been controverted.

    It can, for example, be found in Blackstone's Commentaries on the Laws of England, 17th ed. (1830), vol. 4, p. 198, Stephen; Digest of the Criminal Law (1877), p. 138, Smith & Hogan; Criminal Law, 8th ed. (1996), p. 338 and in many other places over the years.

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 leads to death does not in itself prevent the intent, the act and the death from together amounting to murder, so long as there is an unbroken causal connection between the act and the death.

    If authority is needed for this obvious proposition it may be found in R. v. Church [1966] 1 Q.B. 59 and R. v. Le Brun [1992] Q.B. 61.

5.Violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility even if the harm would not have been criminal (apart from statute) if it had been suffered in utero.

    Once again, the rule founds on a statement of Coke, following immediately after the passage above quoted:

     ". . . if the child be born alive, and dieth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive." (Co. Inst., Pt. III, ch. 7, p. 50).