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[1995] EWCA Crim J1124-5

IN THE COURT OF APPEAL CRIMINAL DIVISION

No. 94/4351/R1

Royal Courts of Justice

The Strand

London WC2

Friday 24 November 1995

Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Kay and Mrs Justice Steel

Attorney General's Reference No. 3 of 1994

UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1972

MR ROBERT SMITH QC and MR DAVID CALVERT-SMITH appeared on behalf of the ATTORNEY


GENERAL

MR SIMON HAWKSWORTTH QC and MR ANDREW LEES appeared on behalf of THE RESPONDENT

Computer Aided Transcription by John Larking, Chancery House, Chancery Lane, London WC2 Telephone No:
0171404 7464 (Official Shorthand Writers to the Court)

JUDGMENT

(As Approved by the Court)


[1995] EWCA Crim J1124-5 2

Friday 24 November 1995

THE LORD CHIEF JUSTICE: This case comes before the court on a reference by Her Majesty's Attorney
General under section 36 of the Criminal Justice Act 1972.

The respondent was charged with murder and was acquitted by direction of the trial judge. In consequence of the
learned judge's ruling the Attorney General has referred a point of law for the opinion of this court. The point of law
is formulated as follows:

"1. Subject to proof by the prosecution of the requisite intent in either case: whether the crimes of murder
or manslaughter can be committed where unlawful injury is deliberately inflicted:

(i) to a child in utero

(ii) to a mother carrying a child in utero

where the child is subsequently born alive, enjoys an existence independent of the mother, thereafter dies
and the injuries inflicted while in utero either caused or made a substantial contribution to the death.

2. Whether the fact that the death of the child is caused solely as a consequence of injury to the mother
rather than as a consequence of direct injury to the foetus can negative any liability for murder or
manslaughter in the circumstances set out in question 1."
[1995] EWCA Crim J1124-5 3

The Facts

The facts that led to the charge of murder were that on 26 May 1990 the respondent stabbed his girlfriend, who was
to his knowledge pregnant with his child. The stab wounds included one to the left lower abdomen which
penetrated the uterus and the abdomen of the foetus.

The trial judge summarised the extent of the evidence as to the stage of pregnancy at the time in this way:

"The contemporaneous belief was that the period of gestation to that date had been 22 weeks. Subsequent
events suggested the period may have been nearer 24 weeks. If the period were 22 weeks, (the child) could
not then be born so as to survive. If the period were 24 weeks, (the child) could have been born with a
remote chance of survival put by Dr Dear at 10 per cent. At all events the pregnancy had been so far
uneventful and her then chance of proceeding to full term labour was good with interim premature labour
assessed as a 1 in 1000 risk."

Following the stabbing the girlfriend was admitted to hospital. Surgery was performed and a cut to the wall of the
uterus was found. The belief then, which later proved to be mistaken, was that there had been no injury to the foetus
itself. Accordingly the doctor limited his intervention to sewing up the wall and prescribing a course of the drug,
indomethacin, to prevent the onset of premature labour.

The girlfriend made a good recovery and was discharged from hospital. However, on 11 June, without any further
trauma, she suddenly went into labour and gave birth to a daughter. The size of the child at birth suggested that the
period of gestation was more likely to be 26 weeks rather than the 24 weeks which had been believed to be the case.
In any event the child was grossly premature although she was then considered to have a 50 per cent chance of
survival. At the time of birth it was clear that the knife had, contrary to the earlier belief, penetrated the foetus and
had cut through the left side of the abdomen.
[1995] EWCA Crim J1124-5 4

The child survived for 120 days, receiving intensive neo-natal care which the trial judge described as "of an
exemplary nature". Such care included a number of surgical operations.

The trial judge summarised the evidence as to death in the following way:

"The cause of death was a lung condition, broncho-pulmonary dysplasia, which arose in the consistent
failure of her lungs to function naturally and from the complications that inevitably arise from sustained
reliance upon a ventilator, all such in turn arising from the premature birth. In essence, she was one of the
50 per cent who statistically do not survive premature birth at 24/26 weeks. The injuries to her inflicted by
the knife were repaired under general anaesthetic and made no direct contribution to her death, save
through such strains arising from operative procedures as compounded the problems arising from
immaturity."

The respondent was charged with wounding his girl-friend with intent to cause her grievous bodily harm. Before the
death of the child, he admitted that charge and was sentenced to four years imprisonment, although at the
subsequent murder trial the conviction was not adduced before the jury. After the death of the child, the respondent
was charged with murder of the child and it is the trial of that charge that results in this reference.
[1995] EWCA Crim J1124-5 5

At the conclusion of the prosecution case, submissions were made on behalf of the respondent:

1.that the evidence tendered to prove the vital causal link between the wounding and the death were
insufficient for the case to be left to the jury; and in the alternative

2.that as a matter of law, even if the causal link could be established the facts could not give rise to a
conviction for either murder or manslaughter.

The learned Judge ruled that there was evidence upon which a reasonable jury could conclude that the causal
connection had been established, although, as he observed, whether they would in the light of already conflicting
evidence on the subject was outside his concern. This reference is not in any way concerned with that ruling. He
then decided that even if the facts and inferences suggested by the Crown were established, they could not in law
result in a conviction for either murder or manslaughter and accordingly he directed the acquittal of the respondent.

The Principles Suggested On Behalf Of The Attorney General


[1995] EWCA Crim J1124-5 6

The arguments that were advanced in the court below and before us were presented on behalf of the Crown by Mr
Robert Smith QC and on behalf of the respondent by Mr Simon Hawksworth QC and we record at once our
indebtedness to each of them for the considerable assistance that they have provided by the quality and clarity of the
submissions that they have made.

Mr Smith at the outset of his submissions set out four principles that he hoped to persuade the court were right.
They were:

"Where a child is born alive and subsequently dies from injuries sustained by the child or the mother while
the child is in utero:

1.if an accused has inflicted a deliberate and unlawful injury to a child in utero intending so to do, he has
committed an offence of manslaughter or murder depending upon what intent is proved and subject to
proof of causation, i.e. that the deliberate and unlawful act caused the death;

2.if the accused's intent to inflict injury is to the mother alone and not to the foetus, the offence of
manslaughter or murder, subject to the same qualifications, is made out by the doctrine of transferred
malice;

3.the fact that the foetus is not a person in being at the time of the unlawful act which is proved to have
caused death is no impediment to a successful prosecution for murder or manslaughter provided the child
is subsequently born alive and achieves an existence independent of the mother;
[1995] EWCA Crim J1124-5 7

4.the fact that the mens rea of murder is not directed to a person in being but to a child in the womb is not
an impediment to a successful prosecution. It is sufficient that the mens rea is directed to a child capable of
becoming a person in being or to the mother when she is carrying a child capable of becoming a person in
being."

We turn, therefore, to consider the law in the light of Mr Smith's propositions.

The Position at Common Law

We have been referred to considerable learning on the position at Common Law and to the limited number of
authorities that cast light upon that position. We can, however, deal with the matter relatively shortly because the
effect of the Homicide Act 1957 upon the mens rea for murder so alters the position that save perhaps in one area
the pre-1957 law is of limited relevance to the issue upon which our opinion is sought.

Coke in his Institutes of the Laws of England in the Third Part Chapter 7 at page 50 says:
[1995] EWCA Crim J1124-5 8

"If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe; or if a man beat
her, whereby the child dieth in her body, and she is delivered of a dead childe, this is great misprision, and
no murder: ."

We are in no doubt that his conclusion that such a killing is not murder still represents an accurate statement of the
law. Such facts may now give rise to the statutory offence of child destruction created by the Infant Life
(Preservation) Act 1929 or an abortion offence contrary to section 58 of the Offences against the Person Act 1861,
but they cannot constitute murder or manslaughter.

Coke continued:

". but if the childe be born alive, and dieth of the potion, battery or other cause, this is murder: for in
law it is accounted a reasonable creature, in rerum natura, when it is born alive."

Coke referred to a decision in 1327 (Year book 1 Edward III page 23) in a case where a defendant had beaten a
woman who was pregnant with twins. As a result one was still-born, and the other died two days after its baptism.
When the matter came before the court Scrope J declined to treat it as felony. Coke's view was that this decision
was "never holden for the law" which we understand to mean was never adopted by the other judges as the Law.

The contrary view was put forward by Hale in his History of Pleas of the Crown Vol 1 Chapter 23 at page 433:
[1995] EWCA Crim J1124-5 9

"If a woman be quick or great with child, if she take, or another give her any potion to make an abortion,
or if a man strike her, whereby the child within her is kild, it is not murder or manslaughter by the law of
England, because it is not yet in rerum natura, tho it be a great crime, and by the judicial law of Moses was
punishable with death, nor can it legally be known, whether it were kild or not. So it is, if after such child
were born alive, and baptised, and after die of the stroke given to the mother, this is not homicide."

Commentators have sought to explain Hale's view by reference to his assertion "nor can it legally be known,
whether it were kild or not" which may have been true on the state of medical knowledge as it stood at the date
when Hale wrote, but which can no longer be said to represent the position today. However, as Mr Hawksworth
argues, to attribute Hale's view solely to the impossibility of proof of causation is to ignore the words "because it is
not yet in rerum natura".

Hawkins, East and Blackstone all favoured the view of Coke rather than that of Hale.

Two reports of 19th century cases are relied upon by the Crown. The headnote in Senior (1832) 1 Mood. 347 ,
reads "giving a child, whilst in the act of being born, a mortal wound in the head, as soon as the head appears, and
before the child has breathed, would, if the child is afterwards born alive, and dies thereof, and there is malice, be
murder." The trial was in fact on a charge of manslaughter and the resulting conviction was considered by all the
Judges except two at a subsequent meeting and they unanimously held that the conviction was right.
[1995] EWCA Crim J1124-5 10

In West (1848) 2 Car. & K. 784 , the headnote reads:

"If a person, intending to procure abortion, does an act which causes a child to be born so much earlier
than the natural time, that it is born in a state much less capable of living, and afterwards dies, in
consequence of its exposure to the external world, the person who by this misconduct, so brings the child
into the world, and puts it thereby in a situation in which it cannot live, is guilty of murder, and the mere
existence of a possibility that something might have been done to prevent the death, would not render it
less murder".

More detailed examination of the old law is unnecessary because it has to be borne in mind that until 1957 the
Felony-Murder rule applied so that where in the course of committing a felony, a death was caused, murder was
established without the need to prove any further intention.

The Position Since 1957

Section 1 of the Homicide Act 1957 abolished the Felony-Murder rule so as to make the required mens rea no
different if a killing was in the course or furtherance of a felony from a killing in any other circumstances. The law
is now clearly settled that a person can only be guilty of murder if at the time, he either intends to kill or cause
really serious bodily injury.

These changes mean that considerations arise now in relation to a charge of murder in circumstances such as those
raised in the reference which would not have arisen before the 1957 Act and hence the pre-1957 authorities, even if
conclusive before that date, can no longer determine the issues we are invited to consider.

We have found it helpful to start from a consideration of those matters that need to be proved by the prosecution on
a charge of murder and to consider whether any of those elements require any specific provision to cater for the
unusual circumstances of a case such as this.

The classic definition of murder at Common Law was given by Coke in his Institutes Part 3 Chap 7 page 47:
[1995] EWCA Crim J1124-5 11

"Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any
county of the realm any reasonable creature in rerum natura under the king's peace, with malice
aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, &c die of
the wound, or hurt, &c within a year and a day after the same."

Leaving aside such matters as provocation and diminished responsibility, which have no bearing upon the issues
presently under consideration, the prosecution must prove the following elements:

1.That the defendant did an act;

2.That the act was deliberate and not accidental;

3. That the act was unlawful;

4.That the act was a substantial cause of a death;

5.That the death was of a person in being;

6. That death resulted within a year and a day; and

7.That at the time of doing the act the defendant intended either to kill or to cause really serious bodily
injury to the victim or, subject to the extent of the doctrine of transferred malice, to some other person.
[1995] EWCA Crim J1124-5 12

Elements 1 to 6 represent the actus reus of murder and if any is absent the actus reus will not be established.
Element 7 is the mens rea of murder for which the old expression, malice aforethought, was used.

The Actus Reus of Murder

Clearly in a case such as that being considered the first and second elements are simply a matter of evidence and
present no particular problem of law. The third element of unlawfulness does require further discussion in the light
of a submission made by Mr Hawksworth that to cause injury to a foetus is not in itself unlawful. He argues that
since the foetus has no separate existence, causing an injury to it is not unlawful unless it comes within the scope of
one of the statutory offences such as child destruction or abortion. We reject that submission. In law the foetus is
treated as a part of the mother until it has a separate existence of its own. Thus to cause injury to the foetus is just as
unlawful as any assault upon any other part of the mother.
[1995] EWCA Crim J1124-5 13

Mr Hawksworth cautioned us that conclusions adverse to the respondent's submissions might render a doctor who
carried out a lawful abortion liable to conviction if the foetus was born alive as a result of a lawful abortion and
then died thereafter. His reasoning was that the Abortion Act 1967 as subsequently amended only provides that a
registered medical practitioner shall not be guilty of an offence under the law "relating to abortion" and says
nothing about not being liable on a charge of murder. In our judgment, Mr Hawksworth's concerns in this regard are
misplaced. A doctor who carries out an abortion in accordance with the Abortion Act 1967 is not acting unlawfully
and hence were such a doctor to be charged with murder, the charge would fail because the element that the act
must be unlawful could not be made out. Just as a doctor who causes death in a bona fide surgical operation is not
guilty because he does nothing unlawful so would a doctor carrying out a lawful abortion be similarly protected. In
the course of argument, the situation of a foetus being born alive consequent upon a lawful abortion and
subsequently being neglected or killed was touched upon, but such questions have no relevance to the issues which
are raised by this reference and we make clear that we have given no consideration to them.

The fourth element to be established on a charge of murder is that the act was a substantial cause of death. This was
the element that Hale doubted could ever be established but clearly on medical evidence today a jury might
properly be so satisfied. In the instant case there was a submission that the evidence was inadequate for a jury to
reach a conclusion to that effect. The learned judge ruled against that submission and although the matter has not
been argued before us, he was, in so far as we can judge, right so to do.
[1995] EWCA Crim J1124-5 14

The fifth element is that the death must be of a person in being. In its simplest form this means that to cause the
death of a foetus in the womb cannot be murder. However, the situation under consideration raises the question
whether the child needs to be in being at the time when the act causing death is done by the defendant. Clearly
when the respondent stabbed his girlfriend the child was not a person in being. It is at this point of the argument and
for this purpose alone that Mr Smith places reliance upon the pre-1957 Common Law in support of his third
principle namely that "the fact that the foetus is not a person in being at the time of the unlawful act which is proved
to have caused death is no impediment to a successful prosecution for murder or manslaughter provided the child is
subsequently born alive and achieves an existence independent of the mother". He argues that in this respect the
1957 Act did not change the law and that if the cases of Senior and West correctly represented the law, the law in
this respect remains unaltered.

We have concluded that there is no requirement that the person who dies needs to be a person in being at the time
that the act causing death is perpetrated. That, we are satisfied, was the position at Common Law and to hold
otherwise would produce anomalies of an unacceptable kind. For example, a defendant who poisoned the water of a
pregnant woman intending her to drink it and be killed, would not be guilty of murder if the woman gave birth to a
child and then made up a bottle for the baby using the poisoned water which killed the child. On the other hand, if
at the time of the poison being added, the child had already been born, and the mother for whom it was intended
used the poisoned water in precisely the same way with the same consequences, it would amount to murder.

The sixth element that death must result within a year and a day provided an arbitrary time limit, which no doubt
was introduced as a safeguard at a time when proof of causation was far from easy. Consideration of the desirability
of retaining such a provision is currently the subject of debate but it has no relevance to our considerations.

The Mens Rea of Murder


[1995] EWCA Crim J1124-5 15

Thus we turn to the mental element of the crime of murder. It is argued on behalf of the Attorney General that the
Crown can succeed in one of two ways. If the jury are satisfied that the defendant at the time when he did the act
intended to kill or cause really serious bodily injury to the foetus, then it is said that this will suffice provided "the
intention is directed to a child capable of becoming a person in being" at a later date. In the alternative it is argued
that an intention to kill or cause really serious bodily injury to the mother will suffice by reason of the doctrine of
transferred malice.

In Smith and Hogan on "Criminal Law" (7th edition page 329), the authors' view of the position is stated as follows:

"In modern law, however, a person who intends to kill or cause serious injury to an unborn child does not
have the mens rea for murder he does not intend to kill or cause serious injury to a person in being
and should not be liable to conviction of that offence. If the child is born alive and dies of the injury
inflicted with that intent he might be guilty of manslaughter if there was an obvious and serious risk .
that this might occur. If D's intention was to cause the death or serious injury to the mother he would, by
'transferred malice', be guilty of murder of the child who was born alive and died of the injury so
inflicted".
[1995] EWCA Crim J1124-5 16

In so far as that passage, by implication if not expressly, rejects the concept of an intention directed towards a child
capable of becoming a person in being, we agree. The concept is a wholly new one that it is sought to introduce and
we do not see it as either necessary or desirable to add this gloss to the law.

That is not to say that we think if an intention is directed towards the foetus a charge of murder must fail. In the
eyes of the law the foetus is taken to be a part of the mother until it has an existence independent of the mother.
Thus an intention to cause serious bodily injury to the foetus is an intention to cause serious bodily injury to a part
of the mother just as an intention to injure her arm or her leg would be so viewed. Thus consideration of whether a
charge of murder can arise where the focus of the defendant's intention is exclusively the foetus falls to be
considered under the head of transferred malice as is the case where the intention is focused exclusively or partially
upon the mother herself.

Transferred Malice

It is, therefore, necessary to consider the concept of transferred malice in order to answer the questions posed in this
reference. At its simplest the concept is that if a defendant intends to kill or cause really serious bodily injury to A
but instead kills B, he is as guilty of the murder of B as if the object of his intentions had been B rather than A.

Mr Hawksworth mounts his principal challenge to Mr Smith's contentions in this regard. He raises three arguments:
[1995] EWCA Crim J1124-5 17

1. "In applying the doctrine of transferred malice there is plainly a distinction to be drawn between
transferring the malice of an offence of stabbing the mother, where the actus reus is the infliction of a stab
wound, and the offence of murder here alleged which is causing the death of the child by bringing about its
birth at such a premature stage that it could not survive. The actus reus of the two crimes do not coincide,
so that malice cannot be transferred";

2. "All such cases proceed upon the assumption that at the time of the assault or blow aimed at 'A' there is
at the same time another person in being 'B' namely the person who is the unintended victim. Since at the
time of the stabbing the foetus was not a person in being, it could not be the subject of an offence contrary
to Section 18 of the Offences against the Person Act"; and

3. "In terms of causation the birth and eventual death of the baby was so far removed from the event of
stabbing that malice cannot be transferred".
[1995] EWCA Crim J1124-5 18

It is perhaps convenient to deal first with the second of those contentions that malice cannot be transferred to a
person who is not in being at the time of the act causing death. It is important to observe that malice cannot in any
event be transferred until such time as the act affects the victim. For example, if a defendant sends a box of
poisoned chocolates to A but B eats them and dies, it can only be at the moment when B places a chocolate in his
mouth that any question of transfer of malice can arise. That time would in such circumstances of necessity be
significantly after the act done by the sender.

We can see no reason to hold that malice can only be transferred where the person to whom it is transferred was in
existence at the time of the act causing death. It is perhaps pertinent to observe that a sufficient intention may be
directed at no individual but rather there may be an indiscriminate intention which will suffice. Thus a defendant
who introduces poison into baby food on a supermarket shelf with an intention to kill some wholly unidentified
child is clearly guilty of murder if a child later dies from eating the poisoned food. It would be a remarkable state of
affairs if such a person was only guilty of murder if the child had already been born at the date when the poison was
introduced to the food. If in such cases of general malice, there is no requirement that the child should already have
been born, it is not easy to see why there should be a distinction drawn when malice is instead transferred from an
intended victim to an unintended one. The example given earlier of poisoned water intended for the pregnant
woman but used to make a bottle for the child demonstrates the possible unsatisfactory conclusions that would arise
from such a rule.
[1995] EWCA Crim J1124-5 19

In support of his first and third contentions, Mr Hawksworth has directed our attention to passages in Criminal Law
The General Part by Professor Glanville Williams (2nd edition at pp. 125 to 127 and 132 to 134). At page 125,
the author contends:

"Although the decided cases do not show it, there can be no doubt that an unexpected difference of mode
will be regarded as severing the chain of causation if it is sufficiently far removed from the intended
mode."

and at page 132:

"There is another way in which it seems that the rule may be circumscribed. Hitherto it has been applied
only in gross cases, and although there are no clear authorities on the bounds to be set to it, the rule should
be confined to cases where it appears to conform to the plain man's view of justice, and so should be
limited to cases where the consequence was brought about by negligence in relation to the actual victim."

To illustrate the second proposition Professor Williams says:

"Thus suppose that D shoots at O intending to kill him; the shot misses O and kills P, who, unknown to D
was behind a curtain at the time. If P's presence could not possibly have been foreseen by D, it may be
thought to be going too far to convict him of the murder of P."

We, for our part, do not find Professor Williams' exoneration of D in respect of murder to be self-evidently "the
plain man's view of justice" in the example he poses.
[1995] EWCA Crim J1124-5 20

Professor Williams as appears from the quoted passages found no authority in support of either of his propositions.
The only authority to which Professor Williams makes reference in respect of the second proposition is Latimer
(1886) 17 QBD 359 , which he acknowledges to be against his contention.

In Mitchell [1983] 1 QB 741 , decided after the date of Professor Williams's quoted work, this court considered a
conviction for manslaughter arising where a defendant in the course of a quarrel in a queue hit another man causing
him to fall against an elderly woman who suffered a broken leg, an injury from which it appeared she was
recovering until she suffered a pulmonary embolism which caused her death. No qualification of the sort contended
for was introduced in that case. The headnote of the case records the decision of the Court as follows:

"Held, dismissing the appeal, that to constitute the offence of manslaughter it was not necessary to
establish that the unlawful and dangerous act was aimed at, or involved a direct attack or impact upon, the
person who died; and that, accordingly, although the appellant had aimed no blow and had no physical
contact with the woman who died, she was injured as a direct and immediate result of his act and died
thereafter, and it was open to the jury to conclude that her death was caused by the appellant's act."

Mr Hawksworth has highlighted the words "direct and immediate result" but the context in which those words were
used by Staughton J in giving the judgment of the court (at page 748) was as follows:
[1995] EWCA Crim J1124-5 21

"Although there was no direct contact between the appellant and Mrs Crafts, she was injured as a direct
and immediate result of his act. Thereafter her death occurred. The only question was one of causation:
whether her death was caused by the appellant's act. It was open to the jury to conclude that it was so
caused; and they evidently reached that conclusion."

We do not understand that the Court was intending thereby to make the "immediate" causing of injury a
requirement of a conviction in such circumstances. In that particular case it was the fact that the injury was caused
immediately and the relevance of that fact was that the court did not have to consider any questions of causation
that might have arisen in different circumstances.

Although not directly to the point, we find the approach of suggesting that such matters go to causation of
assistance. It is clear from Mitchell's case that it is unnecessary for the precise mechanism of death to be foreseen
in manslaughter and we are satisfied that the same is true for murder. We do not think it is right or necessary to re-
introduce any question of causation at the stage when mens rea falls to be considered. Provided that the jury are
satisfied that the death was caused by the defendant's act, then we see no reason why the concept of transferred
malice should not operate.

Obviously if the mode of death is utterly remote, there may be circumstances in which this could be regarded as
severing the chain of causation but in the instant case we cannot see that it should matter whether the child dies
after birth as a result of a stab wound suffered by the foetus before birth or as a result of premature birth induced by
the stabbing.
[1995] EWCA Crim J1124-5 22

Equally, we can see no justification for the proposed qualification that some degree of negligence towards the
intended victim is required. Thus we can see no reason to conclude that the doctrine of transferred malice is
excluded in a situation such as falls to be considered in the reference.

Manslaughter

The focus of our attention so far has been on the law relating to a charge of murder. The reference also raises
questions relating to a charge of manslaughter. In the light of our conclusions relating to murder, we cannot see that
any different approach is required and none has been suggested to us in argument. Clearly the intention required for
manslaughter will be less than that required to establish murder but with appropriate adjustment, we can see no
reason to reach a different conclusion.

Recent Authorities In Other Jurisdictions

We have been referred to two decisions in other jurisdictions where similar questions to those before us have arisen
and it is helpful to consider them in the light of our conclusions. In a Hong Kong case Kwok Chak Ming reported
in (1963) Hong Kong LR at page 226 (first instance) and at page 349 (on appeal), the court was dealing with
similar facts to those in this case, save that the cause of death was the stabbing of the foetus before it was born and
not the inducing of premature birth. Jennings J, after reviewing much the same material as that placed before us,
concluded that where a child is born alive but dies from an injury received before it is born, it could be murder and
that accordingly there was in that case, a case to go before the jury. The Hong Kong Court of Appeal upheld that
ruling saying at page 354:
[1995] EWCA Crim J1124-5 23

"In our view, when a baby is born alive but subsequently dies as a result of injury inflicted on it whilst in
its mother's womb, the person inflicting those injuries may, when the other ingredients of murder or
manslaughter are present, be convicted of such a crime in respect of that child. It is, in our view,
immaterial that, in such circumstances, the malice aforethought may have been directed against the mother
rather than the child. The principle that where A, intending to kill or seriously injure B, unintentionally but,
in pursuit of that purpose, kills C may be indicted for the murder of C, applies, we think, with equal force
even where C was only an embryo, or foetus at the time when the malice was manifested and the injury
inflicted but is subsequently born alive and dies of the injury."

It follows from what we have said that in that case we would have reached the same conclusion. The only way in
which we would have departed from the ruling of Jennings J was when he said in the course of his judgment at page
233:

"Since, however, it would be most unlikely in an ordinary case of stabbing for a person other than the one
at whom the stab was directed to be grievously hurt by that stab, unless that person was pregnant, I would
direct the jury that before it would be safe to convict the accused of murder of this child, they would first
have to be sure that the accused knew or ought to have known that the mother was pregnant at the time of
the stabbing."
[1995] EWCA Crim J1124-5 24

This would be to introduce into the concept of transferred malice the requirement of negligence towards the actual
victim which we have rejected.

The other decision is in a Scottish case McCluskey v HM Advocate [1989] RTR 182 . The case concerned a charge
of causing death by reckless driving pursuant to Section 1 of the Road Traffic Act 1972 as amended which
provided:

"A person who causes the death of another person by driving a motor vehicle on a road recklessly shall be
guilty of an offence."

The appellant had been convicted of causing the death of a child who had been in utero at the time of an accident
caused by the driving of the appellant but who had been born alive prematurely by Caesarian section in
consequence of the accident only to die from the injuries sustained in the accident whilst in utero. The High Court
of Justiciary ruled that in such circumstances a conviction for the statutory offence was proper. There was nothing
in the Common Law of either Scotland or England that required that culpable homicide in Scotland or manslaughter
in England should be confined to the death of a person who was alive at the time when the injuries causing death
were inflicted. Hence there was no potential anomaly relating to this form of culpable homicide that might
otherwise have required that "the death of another person" must relate only to the death of a person alive at the time
of the act of reckless driving. Whilst we recognise that our decision is more far reaching than that conclusion, the
two are at least consistent in their approach.
[1995] EWCA Crim J1124-5 25

Conclusions

Our conclusions differ from those reached by the learned trial judge and it follows that we would have ruled that
there was a case to go to the jury. That said, it should perhaps be recorded that on the state of the medical evidence,
even before the defence raised any evidence of their own, it is far from clear that a jury was likely to be satisfied on
the issue of causation. However, on our conclusions as to the law the matter was one for the jury and not the judge.

It follows from the above that in our opinion the two questions posed in the reference should be answered in the
following way:

1.Yes. Murder or manslaughter can be committed where unlawful injury is deliberately inflicted either to a
child in utero or to a mother carrying a child in utero in the circumstances postulated in the question. The
requisite intent to be proved in the case of murder is an intention to kill or cause really serious bodily
injury to the mother, the foetus before birth being viewed as an integral part of the mother. Such intention
is appropriately modified in the case of manslaughter.
[1995] EWCA Crim J1124-5 26

2.No. The fact that the death of the child is caused solely in consequence of injury to the mother rather
than as a consequence of injury to the foetus does not negative any liability for murder and manslaughter
provided that the jury are satisfied that causation is proved.

Leave given to refer questions to House of Lords. Legal aid extended to Leading and Junior Counsel to argue
the matter in the House of Lords. Respondent granted their costs.