Transferred malice

Transferred malice occurs where the mens rea of a crime can, in certain circumstances, be transferred to an unintended victim. Although not considered to be a type of mens rea, the principle can be applied to both intention and recklessness. The doctrine is an important tenet of English law, so is worthy of exploration regarding its application and limitations, including commentary as to how the courts apply it in the modern era. As one of the older legal principles, it would be useful, first, to examine where the principle originated from, so that the development of the doctrine can be traced through to the modern era.

The origins of the doctrine

One of the early cases which mentions the doctrine, and perhaps where the original precedent came from, is that of R v Saunders and Archer (1573) 2 Plowd 473; Fost 371; 75 ER 706. The facts of the case were that the defendant decided to kill his wife with an apple, which he had laced with arsenic. The wife took a bite out of the apple, and then gave the apple to her daughter, who ate the fruit and died as a consequence. There was no suggestion the wife knew that the apple had been poisoned. The court decided that the defendant’s intention to murder his wife was subsequently transferred via the actions which caused the daughter’s death. Put simply, the mens rea was transferred from the intended victim, to the actual victim, via the actus reus of the offence.

How the doctrine developed

No mention seems to have been made of transferred malice for some 300 years after this case. This could be due, in part, to the rather fragmented and relatively unsophisticated methods of law reporting before the advent of more standardised reporting practices towards the latter stages of the 19th century. Nonetheless, the next reported case, which also resulted in an important development of the doctrine, occurred in R v Pembliton (1874) LR 2 CCR 119.

The facts of this case were that the defendant threw a stone at another person during an argument. The stone missed the intended victim, but instead broke a nearby window. The defendant was charged with malicious damage to property and was convicted.

The court, in quashing the conviction, held that transferred malice did not apply where the defendant’s intention had not been to cause the type of harm that actually occurred. His intention to commit the offence of assault could not be used as the mens rea for the damage he had caused to the window. This case, therefore, developed the doctrine such that it could only be used in circumstances where the same offence which was originally intended actually occurred. It is interesting to note that the court considered the issue of ‘unlawful and malicious damage’ (the forerunner to offences under the Criminal Damage Act 1971) as a separate offence, but decided that the offence had not been made out because - on the facts as they were presented - there were insuficient grounds to prove that the defendant had been reckless.

The doctrine was subsequently cited, and distinguished, in R v Latimer (1886) 17 QBD 359. The facts were that two men had an argument in a pub. One of them went to hit his intended victim with his belt. The belt glanced off the intended victim and then struck a woman, injuring her. Applying the doctrine, it was found that there was indeed transferred malice because the mens rea had been transferred by way of the actus reus (and the offence committed against the second victim was the same as had been against the intended first victim).

Transferred malice was used again in R v Mitchell [1983] QB 741, where the defendant and another man were involved in a scuffle in a Post Oÿce . The defendant pushed the other man, who fell onto an elderly lady causing her injuries from which she later died. This was a simple case of considering the doctrine, and transferred malice was applied; the defendant was found guilty of the elderly lady’s manslaughter.

Criticism and refinement

The principle has not been without its critics, one of whom described it as ‘an historical aberration’ .¹ Dr Glanville Williams referred to the doctrine as ‘rather an arbitrary exception to general principles’ .² He suggested that it should perhaps be kept for instances of offences against the person, but not in respect of offences of criminal damage. As he put it, the principle may result in ‘unfair labelling’ where the damage actually caused is more valuable than the intended damage. He also suggested that the doctrine should only apply in cases where it could be shown that there was negligence towards the actual victim.

The subsequent Attorney General’s Reference No 3 of 1994 [1997] 3 All ER 936 declined to impose the limitations proposed by Dr Williams, and applied the doctrine as it stood while further refining the circumstances under which it could be applied. The facts here were that the defendant stabbed his girlfriend, who was in the advanced stages of pregnancy. She survived, but as a result of her injuries the baby was born prematurely. The baby died subsequently, after approximately four months, as a result of an illness brought on by the effects of the premature birth. The defendant was charged with grievous bodily harm on the girlfriend under section 18 of the Offences against the Person Act 1861, and subsequently with the murder of the baby.

The Court of Appeal decided not to build a new rule on the existing doctrine. The court found that the intent to stab the mother (a live person) could not be transferred to the foetus (which was not a live person), ‘an organism which could not be the victim of a crime of murder’ ; therefore, transferred malice did not operate here.

Commentators have since argued that this is a particularly strict interpretation of the doctrine, while the contrasting view is that the doctrine is not there to change pre-existing legal principles such as the law relating to homicide. The court was not prepared to extend the doctrine in order to establish a double-intent principle, ie, mother to foetus, and then foetus to child.

Current application of the doctrine

The last case to be considered here is that of R v Gnango [2011] UKSC 59. The facts were that Gnango and another were engaged in a fire fight. A shot fired by the other person, ‘X’ , killed an innocent passer-by , who had been caught in the crossfire.

The Supreme Court held (by a 6–1 majority) that Gnango was party to the crime of which he was the intended victim; the court decided that, because of his actions, Gnango had encouraged X to shoot at him. The rule of joint enterprise was applied here; therefore, when X fired the fatal shot which missed Gnango and subsequently killed the actual victim, Gnango could be held liable for the murder under the doctrine of transferred malice.

One reaction to the judgment argued that to prosecute someone for their own attempted murder ‘surely would … be a farcical spectacle’ , and that a concern for public opinion had resulted in an erroneous decision.³ However, it needs to be stressed here that the key issue was the determination of what was considered to be ‘joint enterprise’ . Once this had been established, then the existing - and unmodified - doctrine of transferred malice produced this rather bizarre result. Although this article is not concerned with the principle of joint enterprise, it is worth emphasising that it is the effect of these two tenets which produced the result rather than transferred malice alone.

Conclusion

It can therefore be seen that the principle of transferred malice has remained untouched, despite suggestions concerning how it could be modified. The courts do not see themselves as meddling with an established principle, even to the point where its interaction with other legal principles produces what some might consider to be a peculiar result. In this respect, judicial interpretation has approached the issue on a very narrow basis, preferring not to become embroiled in arguments about a possible connection with the principle of negligence. In addition, because the doctrine does not need to consider aspects of recklessness, its use, arguably, makes it easier to convict defendants.

Overall, the courts still regard the doctrine of transferred malice as important in determining legal liability, and seem as willing as they ever have been to consider its application without changing the simplicity of its operation. It is worth noting that the application includes circumstances where transferred defences are a consideration (ie, self-defence ). As regards reform of the law in this area, recently there have been strong suggestions that the Law Commission should review the principle of joint enterprise; however, only time will tell as to whether this will occur in respect of transferred malice.