|Judgments - Attorney General's Reference No. 3 of 1994 continued|
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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  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  1 Q.B. 59, which was endorsed in D.P.P. v. Newbury  A.C. 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  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  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  1 Q.B. 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  A.C. 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.
I would give these answers to the questions referred to the House by the Court of Appeal :
(ii) (a) Murder--No.
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.
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