Attorney General Reference No 3 of 1994

Factual and Procedural Background

A pregnant woman (“Mother”) at approximately 22–24 weeks’ gestation was stabbed multiple times by the child’s natural father (“Defendant”). Seventeen days later she went into premature labour, giving birth to a live infant (“Child”) who survived for 121 days but died from bronchopulmonary dysplasia associated with extreme prematurity. Medical evidence linked the premature birth, and hence the death, to the original stabbing, although a penetrative wound to the foetus was not a direct cause of death.

The Defendant pleaded guilty to wounding the Mother with intent and received a four-year sentence. After the Child’s death he was indicted for her murder. At trial the judge ruled that neither murder nor manslaughter could be left to the jury because: (i) a foetus is not a “person in being” for homicide; (ii) the requisite mens rea could not be transferred; and (iii) no “unlawful-and-dangerous-act” manslaughter was available. The jury was directed to acquit.

The Attorney General referred two questions of law to the Court of Appeal, which reversed the trial ruling and held that both murder and manslaughter were available. The Defendant appealed to the House of Lords (“the Court”).

Legal Issues Presented

1. Whether murder can be committed when unlawful injury is intentionally inflicted on a pregnant woman, resulting in the live birth and subsequent death of the child.
2. Whether manslaughter can be committed in the same circumstances, particularly where the death is caused solely by injury to the Mother rather than direct injury to the foetus.
3. Whether the doctrine of transferred malice or the characterisation of the foetus as part of the Mother supplies the necessary mens rea.

Arguments of the Parties

Attorney General’s (Respondent’s) Arguments

• The foetus should be viewed as an integral part of the Mother; thus intent to cause grievous bodily harm (“GBH”) to the Mother equates to intent toward the foetus/Child.
• Alternatively, intent toward the Mother could be transferred first to the foetus and then to the Child after birth, satisfying the mens rea for murder.
• Even if murder were unavailable, unlawful-and-dangerous-act manslaughter was made out because the stabbing was objectively dangerous and caused the Child’s death.

Defendant’s Arguments

• A foetus is not a “reasonable creature in being”; therefore no homicide can occur until live birth, breaking the coincidence between actus reus and mens rea.
• Transferred malice cannot bridge the gap because the original intent related solely to the Mother; two transfers (to foetus and then to Child) are impermissible.
• For manslaughter, the unlawful-act doctrine fails because the act was not directed at a living person capable of suffering immediate harm.

Table of Precedents Cited

Court's Reasoning and Analysis

Murder
Judge Mustill, delivering the principal analysis, rejected two Crown theories:

• Foetus-as-Mother Identity: Biologically and legally untenable to treat foetus as the mother’s body part; therefore intent toward Mother cannot automatically extend to foetus/Child.
• Extended Transferred Malice: Traditional doctrine permits one transfer of intent between equivalent victims of the same offence. Here, intent would need to leap from Mother to foetus (not a legal person) and again from foetus to Child—an impermissible double fiction.

Because the Defendant formed no intent to kill or cause GBH to any live person other than the Mother, the mens rea of murder was absent.

Manslaughter
Judge Hope (with Judges Mustill, Slynn, Goff and Clyde concurring) analysed unlawful-and-dangerous-act manslaughter:

• The stabbing was an intentional, unlawful act.
• Employing the objective test from DPP v Newbury, any sober and reasonable person would recognise stabbing as dangerous to someone; it is unnecessary that the ultimate victim be foreseeable or alive at the time of the act.
• Causation was a jury question but the medical evidence established an unbroken chain: stabbing → premature birth → lung failure → death.
• No need to invoke transferred malice; the broad doctrine of unlawful-and-dangerous-act manslaughter sufficed once causation was shown.

Accordingly, while murder was not available, a properly directed jury could convict of manslaughter.

Holding and Implications

HOLDING: The Court held that the Defendant could not be convicted of murder but could be convicted of manslaughter on the facts presumed.

Implications: The judgment clarifies that:

• Intent to injure a pregnant woman does not automatically satisfy murder mens rea regarding a subsequently born child.
• Unlawful-and-dangerous-act manslaughter extends to deaths of children born alive where the dangerous act occurred in utero, without requiring foreseeability of harm to that specific child.
• The decision preserves traditional limits on transferred malice while affirming a broad, policy-driven scope for manslaughter, leaving homicide law on prenatal injuries otherwise unchanged.