Attorney General’s Reference (No.3 of 1994) [1998] AC 245

The defendant stabbed his pregnant partner, causing premature birth; the child was born alive but died from complications of prematurity. The House of Lords held he could not be guilty of murder, as malice could not be transferred via the foetus, but was guilty of unlawful act manslaughter.

Facts

The defendant, B, stabbed his pregnant partner M, knowing she was pregnant. At the time, gestation was about 22–24 weeks. One stab wound penetrated M’s uterus and the abdomen of the foetus, later named S. M recovered and remained pregnant, but approximately 17 days after the stabbing she went into premature labour.

S was born alive but grossly premature, at about 26 weeks, with a 50 per cent chance of survival. She lived for 121 days in intensive care before dying from broncho-pulmonary dysplasia attributable to the effects of prematurity. The abdominal wound to S was surgically repaired and:

“made no provable contribution to her death”

Medical evidence indicated that the premature birth, and thus S’s death, resulted from the injuries M sustained in the stabbing. Had the pregnancy gone to term, S would have had a normal prospect of survival.

B pleaded guilty to wounding M with intent to cause her grievous bodily harm and received four years’ imprisonment. After S’s death, he was charged with her murder. At trial, it was accepted that when B stabbed M he intended to cause her grievous bodily harm, but there was no evidence that he intended to harm the foetus or any child to be born.

The trial judge ruled that neither murder nor manslaughter was made out in respect of S and directed an acquittal. The Attorney General referred questions of law to the Court of Appeal under section 36 of the Criminal Justice Act 1972. The Court of Appeal held that murder and manslaughter were in principle available, treating the foetus as an integral part of the mother. B appealed to the House of Lords.

Issues

The principal issues were:

• Whether, on the assumed facts, B could be guilty of S’s murder where the unlawful injury was intentionally inflicted on the pregnant mother and the child was subsequently born alive and died.
• Whether the doctrine of transferred malice could operate so that an intention to cause grievous bodily harm to the mother sufficed for the murder of the child later born alive.
• Whether, even if murder was unavailable, B could be guilty of manslaughter where his unlawful and dangerous assault on M caused S to be born prematurely and die.
• Whether it made any difference that S’s death was caused solely as a consequence of injury to M rather than direct injury to the foetus.

Judgment

Actus reus

The House held that the actus reus of homicide (both murder and manslaughter) could in principle be satisfied on the facts, subject to causation. Lord Hope stated that the actus reus was not confined to the initial act but included all its consequences:

“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.”

Provided there was an unbroken chain of causation between the stabbing of M and S’s death due to premature birth, the actus reus was complete. The fact that S was in utero when the stabbing occurred did not prevent criminal liability arising where harm materialised after live birth:

“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.”

Murder

All members of the House agreed that B could not be convicted of S’s murder.

First, an embryo or foetus cannot be the victim of murder at common law, because murder requires the killing of:

“a reasonable creature, in rerum natura”

so violence to a foetus in utero is not itself murder. Lord Mustill treated this as an established rule.

Secondly, the Court of Appeal’s approach, treating the foetus as part of the mother so that intention to injure the foetus was intention to injure a part of the mother, was rejected. Lord Mustill said:

“The mother and the foetus were two distinct organisms living symbiotically, not a single organism with two aspects. The mother’s leg was part of the mother; the foetus was not.”

Lord Hope similarly emphasised the independent status of the embryo/foetus as an organism, noting developments in reproductive technology and legislation:

“It serves to remind us that an embryo is in reality a separate organism from the mother from the moment of its conception… So the foetus cannot be regarded as an integral part of the mother in the sense indicated by the Court of Appeal…”

Thirdly, the House declined to extend the doctrine of transferred malice to this scenario. Lord Mustill analysed the traditional justifications for transferred malice and found them largely based on outdated notions of general malice and risk. He described it as:

“rather an arbitrary exception to general principles.”

He concluded that to find murder here would require a double transfer of intent—first from mother to foetus, then from foetus to the child after birth—combined with the separate “grievous harm” rule for murder, which was untenable:

“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… For me, this is too much.”

The House held that B’s intent was directed only at M; he neither intended harm to the foetus nor to any child to be born. On orthodox principles, and without straining fictions, the requisite mens rea for murder in relation to S was absent. The trial judge was therefore right to direct an acquittal on the murder count.

Manslaughter

The House took a different view regarding manslaughter. The case fell within the category of “unlawful act” manslaughter.

Lord Hope explained that manslaughter by unlawful and dangerous act requires:

• an intentional act which is unlawful;
• the act to be dangerous, in that it is likely to cause harm to another person when judged objectively;
• a causal connection between that act and the victim’s death.

He adopted the classic formulation from R v Larkin as endorsed in DPP v Newbury:

“Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.”

and Lord Salmon’s summary in Newbury:

“It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous.”

Applying these principles, the stabbing of M was plainly an intentional, unlawful and dangerous act; injury to M was inevitable. That act set in train a sequence of events leading to S’s premature birth and death. Lord Hope stressed that the necessary mental element relates to the initial act, not specifically to the identity of the ultimate victim:

“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.”

He considered it unnecessary, and impracticable, to require proof that all sober and reasonable people would have foreseen harm to the particular child after birth. It was enough that the act was likely to injure “another person” and did, in fact, cause the death of S after she became a living person:

“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 question, once all the other elements are satisfied, is simply one of causation.”

Lord Mustill initially had reservations about such a broad basis for liability, concerned it resembled an impermissible form of general malice within manslaughter. Having considered Lord Hope’s reasoning, he accepted that this represented the current state of English law and that a verdict of manslaughter would achieve substantial justice:

“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.”

The House therefore held that, although murder was not available, on the assumed facts the elements of unlawful act manslaughter were satisfied if causation were proved.

Answers to the referred questions

Lord Hope set out the House’s formal answers:

• Question 1.1

    (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.

All other Law Lords agreed with these conclusions.

Implications

This decision clarifies several important points in English criminal law:

• A foetus in utero is not a “person” capable of being the victim of murder at common law; injury to a foetus leading to death after live birth can, however, ground homicide liability.
• The foetus is not to be treated as an integral part of the mother’s body for purposes of identifying the intended victim; it is a distinct organism whose later status as a person upon birth is legally significant.
• The doctrine of transferred malice in murder is not to be extended to cover a chain running from mother to foetus to child; the mens rea for murder must relate to a living person, and such multiple transfer is impermissible.
• For unlawful act manslaughter, it is sufficient that the defendant intentionally commits an unlawful and dangerous act likely to cause harm to someone, and that the act in fact causes death; it is not necessary that the defendant, or a reasonable person, foresees harm to the particular individual who dies or to that individual in their eventual circumstances (here, as a child born following earlier injury in utero).
• The case confirms that causation can link an unlawful act committed before birth to a death occurring after birth, provided there is an unbroken chain of causation.

The decision thus refines the boundaries of murder, narrows the reach of transferred malice, and affirms a broad, objective approach to unlawful act manslaughter where violence against a pregnant woman leads to the death of a child subsequently born alive.

Verdict: The House of Lords held that, on the assumed facts, the defendant could not be guilty of murder of the child but that the elements of unlawful act manslaughter were satisfied; the trial judge was right to direct an acquittal on murder, though manslaughter liability existed in law.

Source: Attorney General’s Reference (No.3 of 1994) [1998] AC 245