Judgments - Attorney General's Reference No. 3 of 1994  continued

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    My Lords, I have to say that the present reference oversteps these bounds. To deal in proper depth with every one of the permutations resulting from the alternative facts contained in the point of law referred would be the function of a text book, not a judgment. It would, I believe, be most imprudent to enter upon any of them without resolving to pursue them in depth, and I should wish to proceed with particular care in relation to allegations of murder stemming from an injury to the foetus unaccompanied by any causative injury to the mother. A modern law of murder would have to take into account (a) the disappearance of the felony/murder rule, and its possible effect on cases such as R. v. West (1848) 2 Car. & K. 784, long treated as authoritative but in my view open to question; and (b) the long history of statutory intervention in the interests of the unborn child, beginning with Lord Ellenborough's Act 1803, and continuing through the Offences Against the Person Act 1823, sections 58 and 59 of the Offences Against the Person Act 1861 (as amended), the Infant Life (Preservation) Act 1929 and the Abortion Act 1967 (as amended). Close analysis would be required for this purpose. Counsel did not engage this topic in depth, preferring to concentrate on the issues which were the subject of the ruling at the trial. In my opinion they were right, and I suggest that your Lordships should confine themselves to discussing the issues which arose at the trial, leaving the remainder to a time when they call for decision in practice.

V. Conclusions

    I would respond to the points of law in the manner proposed by my noble and learned friend Lord Hope of Craighead.


My Lords,

    I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Mustill and Lord Hope of Craighead. For the reasons given by Lord Mustill I agree that the learned judge in the case was right to direct an acquittal on the count of murder. Like him I began by thinking that a narrower definition of mens rea was called for in relation to the charge of manslaughter but I am persuaded by the opinion of Lord Hope that on the facts presumed the offence of manslaughter was made out and that the questions of law should be answered as he proposes.


My Lords,

    This case came before the Court of Appeal on a reference by the Attorney General under section 36 of the Criminal Justice Act 1972. The point of law was formulated in general terms, without reference to the particular facts which were before the trial judge. But, as the power which is given by section 36 of the Act of 1972 to refer a point of law to the court is restricted to a point of law which has arisen in the case in which the person who was tried on indictment was acquitted, it may be helpful to summarise again briefly the facts in the light of which the point of law requires to be answered. It is possible to envisage a variety of circumstances in which this point may arise, but I do not think that we can provide answers which will cover every case in which a child is born alive and then dies as a result of a criminal act which was committed while it was still in utero. We must stick to the facts which are before us in this case.

    The child's mother was pregnant when she was stabbed by the defendant. He knew that she was pregnant when he stabbed her, and he was the father of the child. There were several stab wounds, one of which was to the left lower abdomen. It punctured the uterus and entered the abdomen of the foetus, but the injury which the foetus sustained was not the cause of the child&!!;s death. The mother made a good recovery from her injuries. But about two weeks after the stabbing, and without further injury, she went into labour and gave birth to the child. The child was grossly premature when she was born. The medical evidence was that the period of gestation was likely to have been 26 weeks, and that she had only a 50% chance of survival. In the event she survived, after spending her entire life in intensive care, for only 121 days. The cause of death was the failure of her lungs to perform satisfactorily due to her premature birth. The injuries to her abdomen had been repaired under general anaesthetic, and the evidence was that they made no direct contribution to her death. Her premature birth was caused by the injuries which her mother received when she was stabbed by the defendant.

    Whilst the child was still alive the defendant pleaded guilty to wounding with intent to cause her grievous bodily harm. Although he knew that she was pregnant, there was no evidence that he intended to destroy the foetus or to cause injury either to the mother or to the foetus which would result in harm to the child after she was born. At the time when the injuries were inflicted the period of gestation was likely, according to the medical evidence, to have been 24 weeks. The child would have had only a remote chance of survival if she had been born on that date, but the embryo had clearly reached the stage of development when it had become a foetus within the mother&!!;s uterus. There is no doubt that the defendant would have been guilty of the murder of the mother if she had died as a result of her injuries. On his own admission he intended to cause her grievous bodily harm. So the mens rea for murder was present, if the death of the mother had been the result of his act: see Regina v. Cunningham [1982] A.C. 566. There is no doubt also that he would not have been guilty either of the murder or of the manslaughter of the child if the child had been stillborn. Until she had been born alive and acquired a separate existence she could not be the victim of homicide: 3 Co.Inst. (1680) 50.

    The Court of Appeal held that a foetus before birth must be taken to be an integral part of the mother, in the same way as her arm or her leg. It was for this reason that they said that the requisite intent to be proved in the case of murder, if the child was subsequently born alive and then died, was an intention to kill or to cause really serious bodily injury to the mother. I am not satisfied that this is the correct approach. The creation of an embryo from which a foetus is developed requires the bringing together of genetic material from the father as well as from the mother. The science of human fertilisation and embryology has now been developed to the point where the embryo may be created outside the mother and then placed inside her as a live embryo. This practice, not now uncommon in cases of infertility, has already attracted the attention of Parliament: see the Human Fertilisation and Embryology Act 1990. It serves to remind us that an embryo is in reality a separate organism from the mother from the moment of its conception. This individuality is retained by it throughout its development until it achieves an independent existence on being born. So the foetus cannot be regarded as an integral part of the mother in the sense indicated by the Court of Appeal, notwithstanding its dependence upon the mother for its survival until birth. The problem which has arisen in this case is due to the fact, which is not disputed, that at the time of the stabbing the child had not yet been born alive.

    The abolition of constructive malice by section 1(1) of the Homicide Act 1957 has had the result that we must approach this problem without the guidance of previous authority. In this situation I think that it may be helpful to examine the actus reus and the mens rea separately in order to see whether, on the facts of this case, the defendant was guilty of murder or of manslaughter or of neither of these two crimes.

The actus reus

    I have no difficulty in finding in the facts of this case all the elements which were needed to establish the actus reus both of murder and of manslaughter. The actus reus of a crime is not confined to the initial deliberate and unlawful act which is done by the perpetrator. It includes all the consequences of that act, which may not emerge until many hours, days or even months afterwards. In the case of murder by poisoning, for example, there is likely to be an interval between the introduction of the victim to the poison and the victim&!!;s death. There may be various stages in the process, between each of which time will elapse. The length of the interval is not now important: Law Reform (Year and A Day Rule) Act 1996. What is needed in order to complete the proof of the crime is evidence of an unbroken chain of causation between the accused&!!;s act and the victim&!!;s death. Although we cannot now know, as the Court of Appeal have pointed out, whether the jury would have been satisfied on the issue of causation, there was clearly a sufficient case to go to the jury on this matter. There was a respectable body of medical evidence that the child was born prematurely as a result of the stabbing, and that it was as a result of the prematurity of her birth that she died. It was not disputed that injury to a foetus before birth which results in harm to the child when it is born can give rise to criminal responsibility for that injury. So the fact that the child was not yet born when the stabbing took place does not prevent the requirements for the actus reus from being satisfied in this case, both for murder and for manslaughter, in regard to her subsequent death.

The mens rea

    The difficult issues all relate to the question whether the defendant had the mens rea which would be required for him to be guilty of the child&!!;s murder or manslaughter. The point of law as framed by the Attorney General does not look for separate answers to be given as between the two crimes. But I think that, at least on the facts of this case, they require to be examined separately. The mental element which is required to establish the crime of manslaughter is different from that which is required for murder. The difference may be regarded as one of degree where there is only one victim of the criminal act done by the accused, and he intended to cause harm to the victim. In that case the only issue is whether the crime is that of murder or of manslaughter. But in the present case, where there were two alleged victims--the mother who was stabbed, to whom the defendant intended to cause harm, and the child who was born later and then died, to whom no harm was intended--the question is not simply one of degree. An analysis is needed of the nature of the intention which requires to be established in the case of each of these two crimes.


    I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Mustill. I gratefully adopt his analysis of the rules for the crime of murder and of their historical origin, and I agree entirely with the conclusion which he has reached that the mens rea for murder was not present in this case. I wish in particular to express my agreement with him in the conclusions which he has reached that the concept of general malice must be rejected as being long out of date, and that it would be straining transferred malice too far to apply it to the circumstances of this case as this would require the malice to be transferred not once but twice to achieve the result contended for on behalf of the Attorney General. As Lord Mustill has pointed out, however, the crime of murder is an entirely different crime from that of manslaughter, and in turning--as I now do--to consider the crime of manslaughter I shall endeavour to approach that subject without any preconceptions as to what the solution should be based on what the law tells us is required for a conviction for murder.


    Criminal homicide is divided by the common law into the two separate crimes of murder and manslaughter. Manslaughter itself can be divided into various categories, depending on the context for the exercise. In regard to mens rea it is usually convenient to distinguish between (1) cases where the accused intended to injure the deceased and (2) cases where the accused had no such intention. Within the first category there are the cases (a) where he intended to cause grievous bodily harm to his victim but his criminal responsibility is reduced on the ground of provocation at the time of the act, and (b) where he intended to cause only minor harm to the victim but death ensues as a result of his act unexpectedly. Within the second category there are the cases (a) where the accused's act was not unlawful but the death of the victim was the result of negligence of such a gross nature as to be categorised as criminal, and (b) where the accused's act was both unlawful and dangerous because it was likely to cause harm to some person. The present case is an example of unlawful act manslaughter. But the placing of it into this category does no more than touch the surface of the problem where the ultimate victim of that act was not the intended victim and, moreover, was not even alive when the unlawful act was perpetrated.

    Let me begin by distinguishing the Scottish case of McCluskey v. H.M. Advocate, 1989 S.L.T. 175, to which reference was made in the Court of Appeal, as that was a case of statutory homicide. The appellant was convicted of causing death by reckless driving contrary to section 1 of the Road Traffic Act 1972. As Lord Justice General Emslie said in the opinion of the Court at p. 176, only three elements were needed in order to establish the charge under that section: (1) the death of another person, (2) reckless driving by the accused and (3) a causal connection between the reckless driving and the death. The statutory offence does not depend upon proof of an intention to commit the crime, so it was not necessary for the court to examine the issue of mens rea. The Lord Justice General&!!;s observation that there was no authority in the law of Scotland to the effect that a relevant charge of culpable homicide would not lie in such circumstances seems to me to be directed only to the question as to the actus reus of homicide. It was to that question that counsel for the appellant had directed his argument that section 1 of the Act of 1972 was concerned only with the death of a person who was in life at the time of the reckless driving.

    So far as mens rea for the common law crime of manslaughter is concerned, I consider that it is sufficient that at the time of the stabbing the defendant had the mens rea which was needed to convict him of an assault on the child's mother. That was an unlawful act, and it was also an act which was dangerous in the sense indicated by Humphreys J. in Rex v. Larkin (1942) 29 Cr.App.R. 18, 23 in the passage which was quoted with approval by Lord Salmon in D.P.P. v. Newbury [1977] A.C. 500, 506-7. Dangerousness in this context is not a high standard. All it requires is that it was an act which was likely to injure another person. As "injury" in this sense means 'harm", the other person must also be a living person. A person who is already dead cannot be harmed any longer, so injury of the kind which is required is no longer possible. That is why it was held in Regina v. Church [1966] 1 Q.B. 59 that it was a misdirection for the jury to be told simply that it was irrelevant to manslaughter whether or not the appellant believed that the woman whom he threw into the river was already dead. But in this case injury to another living person-- the child&!!;s mother--was the inevitable result of the defendant&!!;s deliberate and unlawful act. Such was the character of the mens rea which the defendant possessed when he committed the initial act in the series of events which resulted in the death of the child.

    There was plainly, in this case, a long interval between the initial act and the child's death and, as I have already said, there was no evidence that the defendant intended to cause injury either to the mother or to the foetus which would result in the child's death after it was born. But I do not see either of these features of this case as giving rise to difficulty. As Lord Lane C.J. observed in Regina v. Le Brun [1992] Q.B. 61, 68E-F, following Regina v. Church [1966] 1 Q.B.59, the act which caused the death and the mental state which is needed to constitute manslaughter need not coincide in point of time. So to this extent as least it may be said to be immaterial that the child was not alive when the defendant stabbed the mother with the intention which was needed to show that he was committing an unlawful act. It is enough that the original unlawful and dangerous act, to which the required mental state is related, and the eventual death of the victim are both part of the same sequence of events.

    Nor is it necessary, in order to constitute manslaughter, that the death resulted from an unlawful and dangerous act which was done with the intention to cause the victim to sustain harm. This is because it is clear from the authorities that, although the accused must be proved to have intended to do what he did, it is not necessary to prove that he knew that his act was unlawful or dangerous. So it must follow that it is unnecessary to prove that he knew that his act was likely to injure the person who died as a result of it. All that need be proved is that he intentionally did what he did, that the death was caused by it and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result. The case of Regina v. Mitchell [1983] Q.B. 741 is a good example of this point. During an altercation in a queue at a busy post office the appellant hit a man who fell against an old lady, causing her to fall to the ground. Her leg was broken, with the result that she died later as a result of a pulmonary embolism. The Court of Appeal held that he was rightly convicted of manslaughter, although he had aimed no blow at the lady and had had no other physical contact with her. As Lord Salmon put it in D.P.P. v. Newbury [1977] A.C. 500, 509C, manslaughter is one of those crimes in which only what is called a basic intention need be proved--that is, an intention to do the act which constitutes the crime.