Comment
| Date | 01 April 1998 |
| Author | Jessica Holroyd |
| Published date | 01 April 1998 |
| DOI | 10.1177/002201839806200205 |
| Subject Matter | Comment |
COMMENT
CONSTRUCTIVE MANSLAUGHTER: THE HOUSE OF LORDS LOOK FOR
ANOTHER PERSON
In considering Attorney General's Reference
(No
3
of
1994) [1997] 3 WLR
421; 60 JCL 293, the House of Lords has focused on important aspects of
constructive manslaughter for the first time since
DPP
vNewbury
[1977]
AC 500 was decided. Appeals on manslaughter are often based on unusual
facts and this one even more so; thus the case requires careful scrutiny to
decide what general lessons, if any, can be learned. Both murder and
manslaughter were considered in the judgment, but in restricting the scope
of the former, their Lordships have affirmed the breadth of the latter.
The accused had deliberately stabbed his girlfriend, whom he knew to
be pregnant, resulting in injury to her and the premature birth of the baby
at 26 weeks with an estimated even chance of survival. The baby however
died after 120 days, apparently of complications due to prematurity. The
accused had meanwhile pleaded guilty to a charge under s18 of the
Offences against the Person Act 1861 in relation to the mother. After the
death of the baby, he was charged with its murder. Because he was
acquitted on the direction of the trial judge following a submission of no
case to answer, no formal proof was ever required of a chain of causation
leading from the stabbing to the baby's death. The Reference was based
on the assumption that the assault on the child's mother had 'changed the
maternal environment of the foetus in such a way that when born the
child died when she would otherwise have lived' (per Lord Mustill, at
p437).
The Court of Appeal ([1996] QB 581) were unanimous in differing
completely from the view of the trial judge. They held that, on the basis
of such facts, a charge of either murder or manslaughter was available,
depending upon the accused's intention. The House of Lords chose to rule
out a charge of murder, but confirmed the availability of manslaughter for
quite different reasons from those relied on by the Court of Appeal.
The trial judge's ruling had been based on a fundamental absence of
actus reus. In his view, at the relevant time, namely the attack on the
mother, the deceased was a foetus and thus there was no living human
victim or 'person in rerum natura' required by Lord Coke in a case of
homicide (3 Co Inst 47). Nor therefore could the accused possess the
required mens rea to kill or seriously wound such a person. The Crown
could not make good this deficiency by reliance on 'transferred malice',
since this operates only 'where the mens rea of one crime causes the actus
reus of the same crime, albeit that the result is in some respects unintended'
(per Lord Mustill, at p 425). Here, the accused's intent to inflict grievous
bodily harm upon the mother (a live person) could not be transferred to
the foetus which was not a living person and could not be the victim of a
crime of murder.
166
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