Law Report: Child can be murdered by injury to mother

Attorney General's Reference No 3 of 1994; Court of Appeal (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Kay and and Mrs Justice Steel); 24 November 1995

Murder or manslaughter can be committed where unlawful injury is deliberately inflicted either to a child in utero or to a mother carrying a child in utero where the child is subsequently born alive but dies thereafter and the injuries inflicted while in utero caused or substantially contributed to the death. The fact that the death of the child was caused solely in consequence of injury to the mother rather than as a consequence of injury to the foetus did not negative any liability for murder and manslaughter provided the jury were satisfied that causation was proved.

The Court of Appeal (Criminal Division) gave judgment on the Attorney General's reference.

The respondent stabbed his girlfriend who was pregnant with his child in the abdomen. The girlfriend recovered but about two weeks later she went into labour and gave birth to a premature child who survived for 120 days. The respondent was charged with murder of the child. The trial judge directed his acquittal on the basis that even if a causal link between the wounding and the death were proved, the facts could not give rise to a conviction for either murder or manslaughter.

Robert S. Smith QC and David Calvert-Smith (CPS) for the Attorney General; Simon Hawkesworth QC and Andrew Lees (Registrar of Criminal Appeals) for the respondent.

Lord Taylor CJ, giving the court's opinion, said that the prosecution had to prove seven elements. In a case such as the present the elements that the defendant did an act and that the act was deliberate and not accidental were simply a matter of evidence.

The third element was that the act was unlawful. In law the foetus was treated as a part of the mother until it had a separate existence of its own. To cause injury to the foetus was just as unlawful as any assault on any part of the mother. A doctor who carried out an abortion in accordance with the Abortion Act 1967 was not acting unlawfully and hence, were he to be charged with murder, the charge would fail.

The fourth element was that the act was a substantial cause of death. On medical evidence a jury might properly be so satisfied. The fifth element was that the death must be of a person in being. In its simplest form that meant that to cause the death of a foetus in the womb could not be murder. However there was no requirement that the person who died needed to be a person in being at the time that the act causing death was perpetrated. The sixth element that the death must result within a year and a day provided an arbitrary time-limit.

The seventh element, the mental element of the crime of murder, was that at the time of doing the act the defendant intended either to kill or to cause really serious bodily injury to the victim, or, subject to the extent of the doctrine of transferred malice, to some other person.

The court rejected the concept of an intention directed towards a child capable of becoming a person in being. That was not to say that if an intention was directed towards the foetus a charge of murder must fail. An intention to cause serious bodily injury to the foetus was an intention to cause serious bodily injury to a part of the mother.

Consideration of whether a charge of murder could arise where the focus of the defendant's intention was exclusively the foetus fell to be considered under the head of transferred malice as was the case where the intention was focused exclusively or partially on the mother.

Malice could not be transferred until such time as the act affected the victim. There was no reason to hold that malice could only be transferred where the person to whom it was transferred was in existence at the time of the act causing the death.

If the mode of death was utterly remote, that could be regarded as severing the chain of causation but it should not matter whether the child died after birth as a result of a stab wound suffered by the foetus before birth or as a result of premature birth induced by the stabbing. The same approach was required in relation to a charge of manslaughter.

The court would have ruled that there was a case to go to the jury, but it was far from clear that a jury was likely to be satisfied on the issue of causation.