Attorney General's Reference No 3 of 1994

The law of murder does not extend so far as to make a person guilty of murder for injuring a foetus when the defendant's intent was directed only at the mother. Instead, where an unlawful and dangerous act against the mother causes the child, once born alive, to die, the defendant may be liable for unlawful-act manslaughter. The requisite mens rea for manslaughter is an intention to do the unlawful act which was dangerous, not an intention to harm the eventual child specifically.

The case concerned whether unlawful injury inflicted on a pregnant woman can ground liability for the subsequent death of her child after live birth.

At trial the judge directed an acquittal on charges of murder and manslaughter. The Attorney-General referred points of law to the Court of Appeal under Criminal Justice Act 1972, s.36. The Court of Appeal answered the reference affirmatively for both murder and manslaughter. The matter was brought to the House of Lords for definitive answers.

The central question was whether (i) homicide can be committed where injury was inflicted on a foetus or on the mother carrying it, and (ii) whether causation via injury to the mother (rather than direct injury to the foetus) negates liability. The House analysed actus reus, mens rea and doctrines such as transferred malice and unlawful-act manslaughter to answer these questions.

1. Outcome: The House answered the referred questions so as to rule that on the assumed facts murder was not made out but manslaughter (unlawful-act type) could be (see answers below).
2. Murder: The mens rea required for murder was absent where the defendant intended only to injure the mother. The court rejected extending transferred malice or treating the foetus as identical with the mother to found a murder conviction. The grievous-harm rule and transferred-malice doctrines cannot be strained to create a double transfer of intent to reach the unborn child. Accordingly murder was answered in the negative on the facts assumed.
3. Actus reus for homicide: An unbroken chain of causation between the defendant's unlawful act and the death after birth can satisfy actus reus for a death occurring later. Injury inflicted before birth that causes premature birth and later death may therefore satisfy causation.
4. Manslaughter (unlawful-act): The court held that manslaughter can be made out where the defendant intentionally committed an unlawful and dangerous act against the mother, and that act (causally) led to the live-born child's death. The mens rea required is the intention to do the unlawful act that is objectively dangerous; it need not be an intention to harm the eventual child specifically. The objective test asks whether all sober and reasonable people would recognise the act as creating a risk of some harm to some person.
5. Practical and doctrinal limits: The court emphasised confinement of answers to the facts before it. It declined to adopt broader changes to the law of murder without detailed analysis and legislative or fuller judicial treatment.
6. Orders: The House gave answers to the questions referred under Criminal Justice Act 1972, s.36, reversing the Court of Appeal on murder and confirming that manslaughter could, in principle, be made out on the assumed facts.

• House of Lords: Answered the reference; held murder not made out on assumed facts but unlawful-act manslaughter could be made out (24 July 1997) ([1997] UKHL 31).
• Court of Appeal: Answered the Attorney-General's reference in the affirmative for both murder and manslaughter ([1996] Q.B. 581).
• Trial Court: Trial judge directed an acquittal on counts of murder and manslaughter and the Attorney-General referred questions of law under Criminal Justice Act 1972, s.36.