Transferred Malice in UK Law

In the eyes of the law the foetus is taken to be a part of the mother until it has an existence independent of the mother. Thus consideration of whether a charge of murder can arise where the focus of the defendant's intention is exclusively the foetus falls to be considered under the head of transferred malice as is the case where the intention is focused exclusively or partially upon the mother herself.

Authoritative material showing that discriminatory conduct or attitudes are widespread in the institution may, depending on the case, make it more likely that the alleged conduct occurred, or that the alleged motivations were operative. It is clear that the Tribunal's reasoning does not pass that test.

The defendant'S malice is directed at one objective, and when after the event the court treats it as directed at another object it is not recognising a "transfer" but creating a new malice which never existed before. Like many of its kind this is useful enough to yield rough justice, in particular cases, and it can sensibly be retained notwithstanding its lack of any sound intellectual basis.

There is no such compatibility here. The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person, either at the time or in the future, and intended no harm to the foetus or to the human person which it would become.

The courts have always firmly resisted attempts to obtain the answer to academic questions, however useful this might appear to be. The peculiarity of a reference under the Act of 1972 is that it is not a step in a dispute, so that in one sense the questions referred are invariably academic.

In trespass, any unlawful interference with the bodily integrity of the claimant will not be unlawful if it is justified, and it will be justified if the defendant can establish that the claimant's conduct was such that the defendant reasonably apprehended that he would be imminently attacked and used reasonable force to protect himself.

The authorities demonstrate that there is a two-stage process. First, the burden is on the employee to establish facts from which a tribunal could conclude on the balance of probabilities, absent any explanation, that the alleged discrimination had occurred. At that stage the tribunal must leave out of account the employer's explanation for the treatment.