A-G's Ref (No 3 of 1994) [1997] 3 WLR 421

Child born alive then dying after pregnant mother stabbed - mens rea insufficient for murder but sufficient for manslaughter

Facts

B stabbed his pregnant girlfriend, who then prematurely gave birth to S. S was wounded in the stabbing and died after 121 days after being born prematurely. B was charged with murder of S, but was acquitted after it was held that he could not in law be convicted of murder or manslaughter as a result of harm done to a child in utero, and that there could be no transferred malice of the intent to harm from the mother to the foetus.

Issue

Under the Criminal Justice Act 1972 section 36 the Attorney General (AG) referred the case to the House of Lords for a ruling on two issues, pertaining to the mens rea required by B to be guilty of the child's murder or manslaughter. The AG firstly asked whether unlawful injury deliberately inflicted on a mother carrying a child in utero could constitute murder or manslaughter when the child was born but subsequently died and the injuries inflicted caused or contributed to death. Secondly, the AG asked whether death caused as a result of injury directed not to the foetus but to the mother negatived liability for murder or manslaughter.

Held
B could be convicted of manslaughter but not of murder. B did not have the mens rea for murder and the concept of transferred malice was inapplicable to the circumstances of this case. However, B satisfied the three elements of unlawful act manslaughter: (1) he had the sufficient mens rea of intention to do an unlawful and dangerous act of stabbing the mother, (2) all reasonable people would recognise the risk that some harm would result, and (3) death was caused by the act. The fact that the injury was not directed at the person who died as a result did not negate liability for manslaughter.