Attorney General's Reference (No. 3 of 1994)

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date24 November 1995
Judgment citation (vLex)[1995] EWCA Crim J1124-5
Docket NumberNo. 94/4351/R1
CourtCourt of Appeal (Criminal Division)
Date24 November 1995

[1995] EWCA Crim J1124-5

IN THE COURT OF APPEAL CRIMINAL DIVISION

Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Kay and Mrs Justice Steel

No. 94/4351/R1

Attorney General's Reference No. 3 of 1994

UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1972

MR ROBERT SMITH QC and MR DAVID CALVERT-SMITH appeared on behalf of the ATTORNEY GENERAL

MR SIMON HAWKSWORTTH QC and MR ANDREW LEES appeared on behalf of THE RESPONDENT

1

Friday 24 November 1995

THE LORD CHIEF JUSTICE
2

THE LORD CHIEF JUSTICEThis case comes before the court on a reference by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1972.

3

The respondent was charged with murder and was acquitted by direction of the trial judge. In consequence of the learned judge's ruling the Attorney General has referred a point of law for the opinion of this court. The point of law is formulated as follows:

"1. Subject to proof by the prosecution of the requisite intent in either case: whether the crimes of murder or manslaughter can be committed where unlawful injury is deliberately inflicted:

(i) to a child in utero

4

(ii) to a mother carrying a child in utero

where the child is subsequently born alive, enjoys an existence independent of the mother, thereafter dies and the injuries inflicted while in utero either caused or made a substantial contribution to the death.

2. Whether the fact that the death of the child is caused solely as a consequence of injury to the mother rather than as a consequence of direct injury to the foetus can negative any liability for murder or manslaughter in the circumstances set out in question 1."

5

The Facts

6

The facts that led to the charge of murder were that on 26 May 1990 the respondent stabbed his girlfriend, who was to his knowledge pregnant with his child. The stab wounds included one to the left lower abdomen which penetrated the uterus and the abdomen of the foetus.

7

The trial judge summarised the extent of the evidence as to the stage of pregnancy at the time in this way:

"The contemporaneous belief was that the period of gestation to that date had been 22 weeks. Subsequent events suggested the period may have been nearer 24 weeks. If the period were 22 weeks, (the child) could not then be born so as to survive. If the period were 24 weeks, (the child) could have been born with a remote chance of survival put by Dr Dear at 10 per cent. At all events the pregnancy had been so far uneventful and her then chance of proceeding to full term labour was good with interim premature labour assessed as a 1 in 1000 risk."

8

Following the stabbing the girlfriend was admitted to hospital. Surgery was performed and a cut to the wall of the uterus was found. The belief then, which later proved to be mistaken, was that there had been no injury to the foetus itself. Accordingly the doctor limited his intervention to sewing up the wall and prescribing a course of the drug, indomethacin, to prevent the onset of premature labour.

9

The girlfriend made a good recovery and was discharged from hospital. However, on 11 June, without any further trauma, she suddenly went into labour and gave birth to a daughter. The size of the child at birth suggested that the period of gestation was more likely to be 26 weeks rather than the 24 weeks which had been believed to be the case. In any event the child was grossly premature although she was then considered to have a 50 per cent chance of survival. At the time of birth it was clear that the knife had, contrary to the earlier belief, penetrated the foetus and had cut through the left side of the abdomen.

10

The child survived for 120 days, receiving intensive neo-natal care which the trial judge described as "of an exemplary nature". Such care included a number of surgical operations.

11

The trial judge summarised the evidence as to death in the following way:

"The cause of death was a lung condition, broncho-pulmonary dysplasia, which arose in the consistent failure of her lungs to function naturally and from the complications that inevitably arise from sustained reliance upon a ventilator, all such in turn arising from the premature birth. In essence, she was one of the 50 per cent who statistically do not survive premature birth at 24/26 weeks. The injuries to her inflicted by the knife were repaired under general anaesthetic and made no direct contribution to her death, save through such strains arising from operative procedures as compounded the problems arising from immaturity."

12

The respondent was charged with wounding his girl-friend with intent to cause her grievous bodily harm. Before the death of the child, he admitted that charge and was sentenced to four years imprisonment, although at the subsequent murder trial the conviction was not adduced before the jury. After the death of the child, the respondent was charged with murder of the child and it is the trial of that charge that results in this reference.

13

At the conclusion of the prosecution case, submissions were made on behalf of the respondent:

1.that the evidence tendered to prove the vital causal link between the wounding and the death were insufficient for the case to be left to the jury; and in the alternative

2.that as a matter of law, even if the causal link could be established the facts could not give rise to a conviction for either murder or manslaughter.

14

The learned Judge ruled that there was evidence upon which a reasonable jury could conclude that the causal connection had been established, although, as he observed, whether they would in the light of already conflicting evidence on the subject was outside his concern. This reference is not in any way concerned with that ruling. He then decided that even if the facts and inferences suggested by the Crown were established, they could not in law result in a conviction for either murder or manslaughter and accordingly he directed the acquittal of the respondent.

15

The Principles Suggested On Behalf Of The Attorney General

16

The arguments that were advanced in the court below and before us were presented on behalf of the Crown by Mr Robert Smith QC and on behalf of the respondent by Mr Simon Hawksworth QC and we record at once our indebtedness to each of them for the considerable assistance that they have provided by the quality and clarity of the submissions that they have made.

17

Mr Smith at the outset of his submissions set out four principles that he hoped to persuade the court were right. They were:

"Where a child is born alive and subsequently dies from injuries sustained by the child or the mother while the child is in utero:

1.if an accused has inflicted a deliberate and unlawful injury to a child in utero intending so to do, he has committed an offence of manslaughter or murder depending upon what intent is proved and subject to proof of causation, i.e. that the deliberate and unlawful act caused the death;

2.if the accused's intent to inflict injury is to the mother alone and not to the foetus, the offence of manslaughter or murder, subject to the same qualifications, is made out by the doctrine of transferred malice;

3.the fact that the foetus is not a person in being at the time of the unlawful act which is proved to have caused death is no impediment to a successful prosecution for murder or manslaughter provided the child is subsequently born alive and achieves an existence independent of the mother;

4.the fact that the mens rea of murder is not directed to a person in being but to a child in the womb is not an impediment to a successful prosecution. It is sufficient that the mens rea is directed to a child capable of becoming a person in being or to the mother when she is carrying a child capable of becoming a person in being."

18

We turn, therefore, to consider the law in the light of Mr Smith's propositions.

19

The Position at Common Law

20

We have been referred to considerable learning on the position at Common Law and to the limited number of authorities that cast light upon that position. We can, however, deal with the matter relatively shortly because the effect of the Homicide Act 1957 upon the mens rea for murder so alters the position that save perhaps in one area the pre-1957 law is of limited relevance to the issue upon which our opinion is sought.

21

Coke in his Institutes of the Laws of England in the Third Part Chapter 7 at page 50 says:

"If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe; or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead childe, this is great misprision, and no murder: …."

22

We are in no doubt that his conclusion that such a killing is not murder still represents an accurate statement of the law. Such facts may now give rise to the statutory offence of child destruction created by the Infant Life (Preservation) Act 1929 or an abortion offence contrary to section 58 of the Offences against the Person Act 1861, but they cannot constitute murder or manslaughter.

Coke c ontinued:

"…. but if the childe be born alive, and dieth of the potion, battery or other cause, this is murder: for in law it is accounted a reasonable creature, in rerum natura, when it is born alive."

23

Coke referred to a decision in 1327 (Year book 1 Edward III page 23) in a case where a defendant had beaten a woman who was pregnant with twins. As a result one was still-born, and the other died two days after its baptism. When the matter came before the court Scrope J declined to treat it as felony. Coke's view was that this decision was "never holden for the law" which we...

To continue reading

Request your trial
13 cases
  • Re MB (an Adult: Medical Treatment)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • Invalid date
    ...the Person Act 1861. Cases referred to in judgment: AC, Re (1990) 573 A 2d 1235 (USA). Attorney General's Reference (No 3 of 1996) [1996] 1 Cr App Rep 351. Baby Boy Doe, Re (1994) 632 North Eastern Reporter, 2d Series 32y (USA). Banks v Goodfellow (1870) LR 5 QB 549. Bruggemann and Scheuten......
  • Attorney General's Reference (No. 3 of 1994)
    • United Kingdom
    • House of Lords
    • 24 Julio 1997
    ...to the foetus can negative any liability for murder or manslaughter in the circumstances set out in question 1.1." 9The Court of Appeal [1996] Q.B. 581 saw the matter differently from the judge. Having first rejected the concept that an intent directed at the foetus as "a child capable of ......
  • R v Hendy-Freegard (Robert)
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 23 Mayo 2007
    ...... Case No: 200504691 C1 . Between Robert D ... . 3 The appellant was acquitted of two ...After a reference to the relevant authorities Lord Brandon ......
  • St George's Healthcare NHS Trust v S; R v Collins and Others, ex parte S
    • United Kingdom
    • Court of Appeal (Civil Division)
    • Invalid date
    ...Cases referred to in judgmentA-G’s Reference (No 3 of 1994) [1998] AC 245, [1997] 3 All ER 936, [1997] 3 WLR 421, HL; affg in part [1996] QB 581, [1996] 2 All ER 10, [1996] 2 WLR 412, CA. Airedale NHS Trust v Bland[1994] 1 FCR 485, [1993] AC 789, [1993] 1 All ER 821, [1993] 2 WLR 316, CA & ......
  • Request a trial to view additional results
4 books & journal articles
  • In Whose Best Interests?
    • United Kingdom
    • The Modern Law Review No. 60-5, September 1997
    • 1 Septiembre 1997
    ...How will the mothercope? Can her professionalism overcome her view that her son should not be subjected to31 [1997] 1 WLR 242, 251.32 [1996] 2 All ER 10.33 Grubb, ‘Unborn Child (Pre-Natal Injury), Homicide and Abortion’ [1995] Med L Rev 302 at p 307;Seneviratne, ‘Pre-Natal Injury and Transf......
  • Pre‐natal Injury and Homicide Following Attorney‐General’s Reference (No 3 of 1994)
    • United Kingdom
    • The Modern Law Review No. 62-1, January 1999
    • 1 Enero 1999
    ...J. Temkin, ‘Pre-natal Injury, Homicide and the DraftCriminal Code’ (1986) 45 CLJ 414, 414–420.2 Criminal Justice Act 1972, s 36.3 [1996] 2 WLR 412, 418. Still older authorities might have drawn the line at the point of ‘quickening’when the unborn child begins to move. See Bracton Folio 121 ......
  • Multiple Wrongdoing and Offence Structure: A Plea for Consistency and Fair Labelling
    • United Kingdom
    • The Modern Law Review No. 64-3, May 2001
    • 1 Mayo 2001
    ...label would clearly show that more than one personhad been killed and would thus differentiate it from a single-victim homicide.4744 [1996] 2 WLR 412.45 This issue is discussed more fully later in the article.46 In my recent public opinion survey (n 42 above) respondents were invited to cho......
  • Recent Judicial Decisions
    • United Kingdom
    • Police Journal: Theory, Practice and Principles No. 71-1, January 1998
    • 1 Enero 1998
    ...He orderedB'sacquittal.On the s.36 reference by the Attorney-General, the CourtofAppeal,Criminal Division (The Times November 29, 1995; [1996] QB 581 heldthat murder or manslaughter could be hanged. The Court of Appealreferred to Smith &Hogan 7th edition (1992) p.29 and R.v.Mitchell[1983] I......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT