Problems of Transferred Malice in Multiple-Actor Scenarios
| Published date | 01 April 2010 |
| DOI | 10.1350/jcla.2010.74.2.626 |
| Date | 01 April 2010 |
| Author | Michael Bohlander |
| Subject Matter | Article |
Problems of Transferred Malice
in Multiple-actor Scenarios
Michael Bohlander*
Abstract Transferred malice is a well-known concept that allows the
extension of an offender’s intent to a victim or object hit accidentally
because the offender missed his intended target. Coupled to this doctrine
is the annex doctrine of transferred defences which purports to transfer
any defence the offender may have had vis-à-vis his intended victim to the
actual victim. These doctrines cause systemic problems in single-actor
scenarios, but those are increased exponentially if one applies them to
multiple-actor situations, where the principles from Saunders and Archer
apply which transpose the transferred malice doctrine to the secondary
participant as long as the principal missed his target accidentally. The
transferred defences doctrine has not been explored in these cases at all, as
far as can be seen. This article examines the traditional doctrine and argues
that based on a number of problematic constellations and a comparison to
German law, it is in need of systematisation and clarification, and that the
approach under Saunders and Archer is no longer fit for purpose.
Keywords Transferred malice; Transferred defences; Multiple-
actor scenarios; aberratio ictus; German criminal law
D aims at V1 but hits V2; he intends to steal V1’s car but in a hurry he
takes V2’s car, which is an identical make and colour, because the police
are after him, etc. Under the present law of England and Wales, the error
would be irrelevant because the intent would be transferred to the
mistaken target. D’s intent to harm or kill V1 is ‘transferred’ to V2.1The
traditional reasoning behind this principle is straightforward: the of-
fence of murder, for example, requires the killing of another human
being, not of a particular human being; Jeremy Horder has called this the
‘impersonality principle’.2That D did not manage to kill the person he
intended to kill does not enter into the equation. That may be difficult to
accept if V1 was D’s husband’s lover and V2 D’s beloved and adored
husband. His death is the last thing D wanted. However, that is a question
of motive, not of mens rea. Motive is irrelevant for establishing or
excluding criminal liability.
Defences are transferred with the intent, but that equation is not as
clear-cut as it seems. D is being attacked by V1, D shoots at V1 in order
to defend himself, misses and hits V2 instead. The conventional ap-
proach to this example is that the intent is transferred to V2, but so is
apparently any defence that D had vis-à-vis V1, if indeed he had one.
The case that is commonly cited for this proposition is R v Gross:3
* Professor of Law, Durham Law School; e-mail: michael.bohlander@durham.ac.uk.
1 See the cases of Rv Latimer (1886) 17 QBD 359 and R v Pembliton (1874) LR 2 CCR
119.
2 J. Horder, ‘Transferred Malice and the Remoteness of Unexpected Outcomes from
Intentions’ [2006] Crim LR 383.
3 (1913) 23 Cox CC 455.
145The Journal of Criminal Law (2010) 74 JCL 145–162
doi:10.1350/jcla.2010.74.2.626
provoked by blows from her husband V1, D shot at him intending to kill
him, but missed and killed V2 instead. The court stated that if because of
the provocation it had been manslaughter and not murder for D to have
killed V1, it would equally be manslaughter rather than murder that she
killed V2.
However, things become more complicated still if we include second-
ary parties or participants in a joint criminal enterprise: D asks P to kill
V1, describing V1 to P; P mistakes V2 for V1 in the darkness. P is guilty
of murder of V2, based on an irrelevant mistake of fact about V2’s
identity. Does the same apply to D? What if P correctly aims at V1 but
misses and hits V2? Under transferred malice he would be guilty of
murder, but would D be, too? What if, in the course of P aiming at V1,
V1 suddenly attacked P for an entirely unrelated reason and P would be
in his rights to use self-defence vis-à-vis V1, or then he misses and hits
V2? If one accepts a transfer of the intent, does the defence get trans-
ferred, too? Does the defence transfer have effect for D?
Some of these questions have been around in legal debate at the very
least since the case of R vSaunders and Archer4in 1576 and have been
picked up again in the 2007 Report by the Law Commission on Partici-
pation in Crime without any change in substance to the existing law
outside the area of inchoate (as opposed to completed offences),5a field
which was subsequently amended by ss 44–46 of the Serious Crime Act
2007 (SCA 2007) on encouraging and assisting crime. The latter only
repeals the common law of incitement as an inchoate offence, the
existing law of conspiracy and participation in a completed offence
remains untouched (SCA 2007, s. 59). The issue of transferred malice for
missing the target can conceptually not arise in the context of inchoate
offences. Any error in the name identity by one or more of the parties to
a conspiracy will not normally void the existence of a common plan as
long as the parties agree to attack a certain person on whose physical
identity they are agreed: D1–D5 agree to beat up V1 whom they all
know from sight and place of residence, but who they all think is called
‘V2’. This is not a case of missing the target where transferred intent
becomes a live issue, but one of an irrelevant mistake of fact. If D tells P
to rob V1, no issue of exemption from liability arises as long as P does not
execute the robbery and picks the wrong victim.
This article, which is a companion article to another on the basic
single-actor scenarios6and builds on that, will therefore not look at
the question of whether the proposals by the Law Commission and the
ensuing use by the SCA 2007 of inchoate offences, are sound against
the background of the harm principle, fair labelling and systematic
4 2 Plowden 473, 75 Eng Rep 706 1378–1865.
5 Law Com. No. 305.
6 M. Bohlander, ‘Transferred Malice and Transferred Defences–A Critique of the
Traditional Doctrine and Arguments for a Change in Paradigm’ (2010) New Criminal
Law Review forthcoming. Some parts of the conclusion have been borrowed as
modified excerpts from that paper.
The Journal of Criminal Law
146
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