The Unborn Child and the Limits of Homicide
| DOI | 10.1177/002201839706100105 |
| Published date | 01 February 1997 |
| Author | John Beaumont |
| Date | 01 February 1997 |
| Subject Matter | Article |
THE
UNBORN
CHILD
AND
THE
LIMITS
OF
HOMICIDE
John Beaumont"
The decision of the Court of Appeal in Attorney General's Reference (No 3
of
1994)
[1996]
2 All ER 10 is an authority which, at first sight, seems to
deal with a relatively narrow point. If a child is injured in the womb, is
born alive and then dies of the injury, can the person causing the original
injury be convicted of murder? However," the case has much wider
ramifications relating to some of the general principles of the criminal law.
In particular, the case examines in some detail the doctrine of transfered
malice. General issues of mens rea and causation also arise.
The facts are set out sufficiently clearly in the headnote of the reports.
In May 1990 the defendant stabbed his girlfriend, who was to his
knowledge pregnant with his child. No injury to the unborn child was
detected and the defendant pleaded guilty to a charge of wounding with
intent to cause his girlfriend grievous bodily harm. In June 1990 the
defendant's girlfriend gave birth to a grossly premature daughter who was
considered to have only a 50 per cent chance of survival. At the time of
the birth it was clear that, contrary to earlier belief, the knife had
penetrated the unborn child. The child died 120 days later and the
defendant was thereafter charged with murder. At his trial the judge
directed an acquittal on the ground that no conviction for either murder
or manslaughter was possible in law. The case was subsequently referred
by the Attorney General to the Court of Appeal under s 36 of the
Criminal Justice Act 1972.
General principles
The more general issue that arises out of Attorney General's Reference
(No 3
of
1994) relates to the situation in the criminal law where the
conduct of the defendant does not take effect instantaneously but over a
period of time. There is often a time lag between the defendant's behaviour
and the results of that behaviour. Such situations can give rise to problems
of analysis in a number of areas of the criminal law, notably in relation
to the principle of contemporaneity. This is the requirement that the fault
element of a crime must coincide in point of time with the conduct
element in order to amount to an offence.' The issue in Attorney General's
• Head of the School of Law, Leeds Metropolitan University.
I
See
the discussion in the leading texts, for example, Ashworth, Principles
of
Criminal
Law (2nd ed, 1995) pp 90, 155-157; Smith and Hogan, Criminal
Law
(7th ed, 1992) pp 76-
79; Card, Cross and Jones, Criminal Law (13th ed, 1995) pp 87-89.
86
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