Mens Rea - Transferred Malice PDF

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Lecture 14

Semester 1 Criminal Law Mens Rea: Transferred Malice

Transferred malice When the intention to harm one individual inadvertently causes a second person to be hurt instead, D is still held responsible.  Involves the transfer of D’s mens rea from one person/object to another.  e.g. D shoots at X, intending to kill X, but misses and kills V. o D’s mens rea to kill X transfers to V. o It does not matter if D did not have the mens rea to kill V.  Mens rea may only be transferred if the mens rea requirement of D’s state of mind comes together with D’s act to form a full offence (Pembleton (1987)). o Mens rea cannot be transferred between offences, it can be transferred only when the offences are the same.  Mens rea cannot be transferred twice (Attorney General’s Reference (No. 3 of 1994) [1998]). Facts: The appellant tried to jump the queue at a Post Office. An elderly man took issue with the appellant's behaviour and challenged him. The appellant hit the old man and pushed him. The man fell back onto others in the queue including an elderly lady who fell and broke her leg. She later died. The appellant was convicted of manslaughter and appealed contending that the unlawful act was not directed at the woman. R v Mitchell [1983] QB 741

R v Latimer (1886) 17 QBD 59

R v Pembleton (1870) LR 2CCR 119

Held: Conviction was upheld. There was no requirement that the unlawful act be directed at the victim. The mens rea was transferred from the elderly man to V. Staughton J: “We can see no reason of policy for holding that an act calculated to harm A cannot be manslaughter if it in facts kills B. the criminality of the doer of the act is precisely the same whether it is A or B who dies. The person who throws a stone at A is just as guilty if, instead of hitting and killing A, it hits and kills B.” Facts: D got into a fight in a pub with X. He took off his belt and swung back with the belt to strike X. The belt ricocheted off and hit V in the face, wounding her. Held: Although D had accidentally hit V, D’s intention. To hit X with the belt was successfully transferred to V. Facts: D was involved in a fight and threw a large stone at the people he was fighting with. The stone missed and hit a window, smashing it to pieces. D was charged with criminal damage. It was argued that his intention in throwing the rock into the crowd could be transferred to the outcome of smashing the window.

Lecture 14

Attorney General’s Reference (No. 3 of 1994) [1998] 3 All ER 936

Semester 1 Held: Doctrine of transferred malice could not apply. Pembleton’s mens rea was for an offence against the person, not to commit any property offence. As these are entirely different offences, the doctrine of transferred malice could not be applied. Facts: D stabbed his pregnant girlfriend, X. 17 days after the incident, X went into premature labour and gave birth to a baby (V), V died later due to complications stemming from D’s stabbing. D was charged with wounding and GBH on X and convicted. On the death of V, he was also charged with murder and manslaughter. Held: V could not be convicted of murder or manslaughter since at the time of the attack the foetus was not in law classed as a human being and thus the mens rea aimed at the mother could not be transferred to the foetus as it would constitute a different offence. The mens rea could not be transferred from X to an unborn foetus (V), and cannot transfer even if the child became born as the doctrine of transferred malice could not be applied twice....