Attorney General's Reference No. 3 of 1994

The House considered whether unlawful injury inflicted upon a pregnant woman can give rise to murder or manslaughter in respect of a child subsequently born alive who dies as a result of those events. The court confirmed the binding rule that murder requires an intention to kill or to cause really serious bodily harm and rejected any extension of transferred malice to treat the foetus as part of the mother so as to create the mens rea for murder where the defendant intended harm only to the mother. The court held, however, that unlawful-act manslaughter can be made out where the defendant intentionally did an unlawful and dangerous act (here, a stabbing of the mother) which, by an unbroken chain of causation, caused the death of a child born alive; causation must be proved.

Background and facts:

M stabbed the mother (his partner) while she was some 22–24 weeks pregnant. One wound punctured the uterus. The mother subsequently went into premature labour about 17 days later and gave birth to a grossly premature child (S), who lived 121 days in intensive care and died of broncho‑pulmonary dysplasia attributable to prematurity. The wound to the foetus required repair but was not shown to have contributed to death. At the time of the stabbing the defendant had pleaded guilty to wounding the mother with intent to cause grievous bodily harm.

Procedural posture:

• At trial the judge directed acquittal on counts charging both murder and manslaughter in respect of the child.
• The Attorney‑General, under section 36(1) of the Criminal Justice Act 1972, referred to the Court of Appeal whether murder or manslaughter could be committed in such circumstances; the Court of Appeal answered in the affirmative ([1996] Q.B. 581).
• The defendant appealed to the House of Lords which heard the matter on the framed questions.

Issues framed:

1. Whether murder or manslaughter can be committed where unlawful injury is inflicted on (i) a child in utero or (ii) a mother carrying a child in utero where the child is subsequently born alive and dies, and the in utero injuries caused or substantially contributed to the death.
2. Whether the fact that the death was caused solely as a consequence of injury to the mother (rather than direct injury to the foetus) negatives liability for murder or manslaughter.

Court's reasoning and holdings:

• On murder: the House rejected the proposition that the foetus should be treated as part of the mother for the purpose of transferring the intent to cause really serious bodily harm. Transferred malice cannot be stretched to supply the mens rea of murder by two successive transfers (from mother to foetus and then to the later born child). Existing authorities requiring intent to kill or cause grievous bodily harm remain binding and do not justify extending liability for murder in these facts.
• On manslaughter: the House held that unlawful-act manslaughter may be made out. The mens rea required is an intention to do the unlawful act; the act must be objectively dangerous in the sense that all sober and reasonable people would recognise it as likely to cause harm to someone. It is not necessary that the defendant intended or foresaw injury to the particular person who later dies; once causation is proved the defendant takes the consequences of his unlawful and dangerous act. Thus, on the facts as assumed, manslaughter could be made out.

Other points: The court emphasised the limits of the Attorney‑General's reference power under s.36(1) CJA 1972 and declined to decide broader hypothetical permutations not required to resolve the issues before it.

Appeal allowed in part. The House held that on the assumed facts murder could not be established because transferred malice cannot be extended to treat the foetus as part of the mother so as to supply the mens rea for murder; however, unlawful‑act manslaughter could be established because the defendant intentionally committed an unlawful and objectively dangerous act against the mother which, by an unbroken chain of causation, caused the death of the child born alive.

Trial judge directed acquittal on counts of murder and manslaughter; Attorney‑General referred questions of law under section 36(1) Criminal Justice Act 1972 to the Court of Appeal ([1996] Q.B. 581), which answered in the affirmative that murder or manslaughter could arise; the House of Lords ([1997] UKHL 31) allowed the reference in part, answering that murder could not be established on the assumed facts but manslaughter could.