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Simple notes on Transferred Malice and Mistake
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Simple and concise notes on Transferred Malice and Mistake
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Lecture 2 –The doctrine of transferred Malice –
- D with the mens rea of a crime does an act which causes the actus reus of the same
crime
- Then D is guilty even though the result in a sense is an unintended one
- If D intends to murder V and in the dark shoots at a person whom D believe to be V,
hits and kills the person at whom he aims who is in fact W
- In one sense this is obviously an unintended result but D did intend the actus reus
which has cause and D is guilty of murder
Simester et al –
- Suppose that Doris takes aim at Tim with the intention to kill him and pulls the
trigger
- Just as Doris shoots, Tom bends down to tie his shoelaces
- Doris shot miss Tom and hits Bill
- Bill is killed instantly
Simister et al state that in this situation Doris is guilty of murdering Bill notwithstanding that
she did not foresee that possible outcome
- The actus reus of murder is to kill a person
Therefore, although Doris intended to kill Tom, she had the mens rea for murder since she
intended to kill a person
- The identity of that person is immaterial to the definition of the offence
- Fault is transferred over to the crime that occurred
Latimer (1886) QBD 359
- Where D aimed to hit A with a belt, but missed and hit B when belt bounced off a
counter then D was liable for a non-fatal offence
- Malice against A transferred to B
- This long-lasting authority is off cited as a fundamental illustration of the transferred
malice principle in English criminal law
- See how transferred malice can apply across a non fatal crime
Pembilton (1874)
- D was involved in a fight outside a public house – charged with a property crime –
maliciously breaking a window
- Thrown a rock at person A to cause them physical harm, they missed a struck a
window property damage crime
- Can’t transfer a malice to a different kind of harm
, - Jury found D thrown the stone which broke the window – he did so with an intent to
harm, didn’t intend to break the window
- Quashed by the crown court for cases reserved because there was no finding that he
had the mens rea of the crime, the actus reus of which he had causes
Lord Coleridge pointed out that it would have been different if there had been a finding
that he was reckless as to the consequence which had occurred – but there was no such
finding
- The limits of transferred malice
Mitchell (1983) QB 741
- D hit E a 72-year-old man who was standing in the q in a post office in Tottenham
- E had upbraided D for pushing into the q ahead of other and a dispute occurred
- E fell against V an elderly 89-year-old lady who fell and broke her leg and died
thereafter as a result of pulmonary embolism – caused by the fall when he fell on her
- The doctrine of transferred malice was applied in the appellate court by Stuart Smith
J to direct the criminality of the act against a person A to person B – to establish
liability
- Elements of unlawful act of manslaughter i.e. 1) an unlawful act with fault (the push,
battery) 2) dangerous 3) intentional/volitional 4) causal link
- The appellate court affirmed ‘the criminality of the doer of the act is precisely the
same whether it is A or B who dies’
A-G’s reference (no.3 1994) AC 1988 245* (relating to unlawful act manslaughter)
- D stabbed his pregnant gf – volitionally
- A child was born alive and survived for 120 days but died from causal injuries linked
to the stabling and the premature birth
Contrast the perspectives of the CoA and the HoL
- CoA – Lord Taylor – liability for murder
- Double Transfer malice from the woman to the foetus to the child born alive – no
problem transferring malice (grievous bodily harm) to the foetus to the born child
that died as a result of that harm
- HoL – Lord Mustill – potential liability of unlawful act of manslaughter, because of
the unlawful harm that was aimed at gf – volitional and dangerous, evidence was
that it killed the child but not murder
- Lord Mustill was hostile to legal fiction (a harry potter of criminal law) of a double
transfer of malice – herein – viewed the doctrine as having no sound intellectual
basis and creating a legal fiction rejects that it is feasible
- Still convicted of manslaughter because for that offence there was no need to show
an intent to injure a particular person
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