Transferred Malice
Descripción
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The effect of transferred malice, according to Lord Mustill, “is that the intended victim and the actual victim are treated as if they were one, so that what was intended to happen to the first person (but did not happen) is added to what actually did happen to the second person (but was not intended to happen), with the result that what was intended and what happened are married to make a notionally intended and actually consummated crime.”1 It is a necessary legal fiction designed to compensate for inevitable discrepancies between the wording of the law and the interests of society. 2 Although transferred malice is useful in this regard, like most fictions it is founded on a shaky intellectual foundation which leaves it open to misapplication and its illdefined principals prevent the organic growth of new law.3 It can also be considered symptomatic of the general state of the homicide laws in the UK which, according to the Law Commission, struggles to satisfy two important objectives.4 The first objective is the idea of fair labelling; the title of the crime ought to convey both the nature and the magnitude of the offence in order to appropriately stigmatise the offender as well as adequately assuage the conscience of society.5 The second objective falls under the principle of legality that laws must be clear in their definitions in order to avoid caprice. As a legal fiction, transferred malice recognises and accepts a falsehood in the application of the law,6 namely, that the defendant possessed the
Attorney General’s Reference (No. 3 of 1994) [1998] AC 245, as per Lord Mustill at pg. 262(c). Schachar, E. 2012. “The Limits of Transferred Malice.” Oxford Journal of Legal Studies . 32.4. 640 3 Attorney General’s Reference (No. 3 of 1994) as per Lord Mustill at 261(c). 4 Law Commission Report: Law Commission. 2006. “Murder, Manslaughter, and Infanticide.” Law Commission No. 304 at 1.9; 1.10; 1.32 “[O]ver the centuries, the two categories of murder and manslaughter have had to bear the strain of accommodating changing and deepening understanding of the nature and degree of criminal fault . . . They have also had to satisfy demands that labelling and sentencing should be based on rational and just principles.” 5 Ashworth, A. 2006. Principles of Criminal Law . Oxford: Oxford University Press. 5th ed. pg. 88.; Chalmers, F. and F. Leverick. 2008. “Fair Labelling.” The Modern Law Review . 71.2. pg. 235. 6 Del Mar, M. 2013. “Recovering Legal Fictions: An Introduction.” International Journal of Law in Context . 9.4. pg. 438. Westen, P. 2012. “The Significance of Transferred Intent.” Criminal Law and Philosophy . 7. 33031. 1 2
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required mens rea to harm an unintended victim. Peter Westen outlined the various legal theories which have set out to either rationalise or abolish this legal fiction and has also presented his own theory which essentially states that the defendant’s guilt ought to be left to the jury to decide.7 Although all of these proposals have merits, they also possess some fundamental weaknesses and as such they do not adequately clarify the rationalisation of transferred malice. After considering the basis for transferred malice in a brief surmise of the relevant case law, this paper will consider the limitations of these proposals with a strong emphasis on Westen’s article, and will conclude by considering Horder’s alternative rationalisation of transferred malice and the Law Commission’s proposals for homicide law reform.8 One of the earliest cases to consider the fiction of transferred malice was R v Saunders and Archer wherein Saunders, in attempting to poison his wife, accidentally poisoned his young daughter instead.9 The court held that, “when [a man] lays the poison with an intent to kill some reasonable creature, and another reasonable creature, whom he does not intend to kill, is poisoned by it, such death shall not be unpunishable, but he who prepared the poison shall be punished for it, because his intent was evil.”10 This accords with Chief Justice Fleming’s report in the later Agnes Gore Case (with very similar facts) where he stated, “ if A. puts poison into a pot of wine, &c. to the intent to poison B. and sets it in a place where he supposes B. will come and drink of it, and by accident C. (to whom A. has no malice) comes, and of his own head takes the pot and drinks of it, of which poison he dies, it is murder in A. [. . .] for the King by reason of the putting in of the poison with a murderous intent, has lost a subject; and therefore in law he
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Westen, 346. Horder, J. 2006. “Transferred Malice and the Remoteness of Unexpected Outcomes.” Criminal Law Review .; Law Commission. 2006 . 9 R v Saunders and Archer (1573) 75 E.R. 706. 10 R v Saunders and Archer , as per Chief Justice Dyer at pg. 708. 8
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who so put in the poison with an ill and felonious intent, shall answer for it.”11 It is clear in both these cases that the court interpreted transferred malice as a specific type of general malice; the intent to kill is so grievous an offence that it subsumes the significance of the object of that intent. This general malice rationale is no longer sufficient in and of itself since it was later definitively curbed by the abolition of the felony murder doctrine in section 1 of the Homicide Act 1957 .12 However, transferred malice survives as good law because section 1 of the Homicide Act 1957 makes an exception where, “the same malice aforethought as is required for a killing to amount to murder.”13 It was even held to apply in cases where the defendant was an accessory, accomplice, or abettor of the unintentional killing.14 Although transferred malice may apply to cases of assault or violence, it derives its real significance from the mandatory life sentence attached to murder convictions. If the courts could mitigate the punishment for an offence at the sentencing stage, the label of murder would not carry the same weight and so the apprehension of applying that label to transferred malice cases might be lessened.15 Therefore, even though transferred malice is a device which incorporates constructed falsehoods into the criminal law,16 it can be excused as a necessary inconvenience because it is more or less successful in achieving a rough justice despite its shaky foundations. 17 However, as will be demonstrated, there are many
Agnes Gore Case (1611) 77 ER 853 as per Chief Justice Fleming at pg. 854 Homicide Act 1957 , s. 1.; see also Attorney General Reference (No. 3 of 1994) as per Lord Mustill at pgs. 258(c) and 259(f). 13 ibid. 14 R v Gnango [2011] UKSC 59 as per Lord Phillips and Lord Judge at para. 61. 15 This hypothesis will be explored in greater detail later in this paper. 16 Del Mar, M. 2013, 438. 17 Attorney General’s Reference (No. 3 of 1994) as per Lord Mustill at pg. 261(c). 11 12
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legal academics who promote abolishing the legal fiction in favour of finding a more firm intellectual rationalisation. Westen identifies two general approaches to transferred malice.18 First, the impersonality doctrine, also called the abolitionist doctrine, which holds that when legislation identifies a crime as against “a person” it is in reference to “any person” and not “a specific person”.19 Thus the impersonalists have no perceived need for the fiction of transferred malice because no transfer of mens rea is required under this interpretation. Although this theory possesses the virtues of coinciding with the rationales in maiming and mistaken identity cases, and it coheres with social intuitions regarding fair labelling, the impersonality doctrine is overbroad and can lead to overly harsh verdicts.20 This is especially true in cases where the death or injury of the victim was unforeseeable or where the harm actualised was a result of a causal path other than that intended by the perpetrator.21 The second approach is the particular person doctrine, or purist doctrine, which supports the interpretation of “a person” as “a specific person” and therefore prefers that defendants be charged more literally for example, a charge of attempted murder in conjunction with reckless or unlawful manslaughter.22 This doctrine also does not perceive a need for transferred malice since it holds that the law already provides adequate resource to punish offenders. The purist doctrine derives its strength from its firm grounding in the traditional interpretation of mens rea . 23
On the other hand, it is felt that the purist doctrine is not broad enough and fails to properly
18
Westen, 328. Westen, 332. 20 Westen, 335. 21 Westen, 336. 22 Ashworth, A. 1978. “Transferred Malice and Punishment for Unforeseen Consequences.” Reshaping the Criminal Law . London:Stevens and Sons. 23 Westen, 336. 19
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stigmatise the perpetrator according to the principles of fair labelling; it also relies on a constrained interpretation of the perpetrator’s mens rea and so would frequently result in no penalty being had where the requirements of attempt charges cannot be met.24 Westen also discusses Husak’s 1996 proposal to deal with transferred malice which relies primarily on proportionate sentencing.25 Husak’s proposal seeks to find middle ground between the purists and the impersonalists by marrying the verdict sought by the purist with the reasoning favoured by the impersonalists. In doing so, however, Husak’s proposal inherits the weaknesses of both doctrines, specifically, it is overbroad in the same ways as the impersonality doctrine and like the purist doctrine it still fails to address the issue of fair labelling.26 Westen then goes on to propose his own theory in an effort to address all these issues. His theory is based on Plato’s philosophy that punishment of the perpetrator ought to be directly related to the outrage felt by society, which in turn will find its roots in the circumstances and resulting harm of the crime.27 He notes that society is fickle and can toggle between the impersonality and purist rationalisations as they see fit depending upon the circumstances of the crime and the law should allow for and reflect this sense of justice. He would therefore abolish transferred malice in favour of allowing the jury to determine the culpability of the perpetrator based on their own judgement and intuitions.28 This theory has the benefit, like the impersonalist doctrine, of adhering to the principles of fair labelling since it is almost entirely left to society in the form of the jury as to what the appropriate label ought to be.
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Schahar, 640. Westen, 338; Husak, D. 1996. “Transferred Intent.” Notre Dame J Law Ethics and Public Policy . 10. 26 Westen, 34041. 27 Westen, 343. 28 Westen, 346. 25
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However, as Husak states, “Nothing is really explained . . . Where are the principles that explain why we have the intuitions we allegedly share about the deviant cases of transferred intent?”29 In other words, where is the rationalisation upon which the jury ought to be directed to base their decision in order to provide necessary definition for the culpability upon which the defendant is to be found guilty? Human intuition may direct the social conscience in what is to be considered just and legal decisions normally ought to seek to satisfy this sense of justice in the society which it serves. However, human intuition may be based on cultural biases and prejudices and so while the socially desired outcome may feel just it is not necessarily so when faced with the general principles of law. Therefore, this paper submits that Westen’s theory overvalues fair labelling, or human intuition, at the expense of clarity, or the general principles of legality. What, then, are the required principles upon which transferred malice ought to be based? It is submitted that Jeremy Horder has presented four main principles which can be considered a foundation for the application of transferred malice. These are, (a) the prohibited outcome doctrine, (b) the labelling principle, (c) the remoteness doctrine, and (d) the ‘notranslation’ rule. 30
The prohibited outcome doctrine “allows liability when a particular kind of interest has been
culpably invaded or destroyed, even when the victim was not the intended victim, or the interest was not invaded or destroyed in the way intended.”31 The logic behind this principle is legally sound since it is very similar to the reasoning behind unlawful act manslaughter convictions. Therefore, as found in unlawful act manslaughter cases, the mens rea element in transferred
Husak, D. 2013. “The Philosophy of Criminal Law: Extending the Debates.” Criminal Law and Philosophy . 7.2. 364. 30 Horder, J. 2006, 390. 31 ibid . 29
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malice cases is satisfied when it is shown, “that the original unlawful and dangerous act, to which the required mental state is related, and the eventual death of the victim are both part of the same sequence of events.”32 It is also supported by the fact that section 1 of the Homicide Act 1957 makes an exception where, “the same malice aforethought as is required for a killing to amount to murder” results in the death of an unintended victim.33 The second principle the labelling principle follows what has already been stated in regards to fair labelling. The third principle the remoteness doctrine is the foundation of Horder’s proposal, where the applicability of transferred malice is left to the jury to decide based on the remoteness of the result from the intention of the perpetrator.34 This theory takes into consideration Lord Mustill’s judgement when he states, “To make any sense of this process there must, as it seems to me, be some compatibility between the original intention and the actual occurrence, and this is, indeed, what one finds in the cases.”35 Horder might have also added to this consideration, that the fact that, when an individual intends an unlawful course of action the law holds it does not matter if the end result of that course of action was his intention, only that it was a “natural and probable” result of his action.36 The remoteness doctrine does not only consider the chain of causation in transferred malice cases but also the proximity of the death to the perpetrator’s action and the level of culpability it is just and reasonable to accord to the perpetrator. It seeks to consider whether or not the label to be given the defendant is a
Attorney General Reference (No. 3 of 1994) as per Lord Hope at pg. 270(f). Homicide Act 1957 , s. 1.; see also Attorney General Reference (No. 3 of 1994) as per Lord Mustill at pgs. 258(c) and 259(f). 34 Horder, J. 2006, 388. 35 Attorney General’s Reference (No. 3 of 1994) as per Lord Mustill at pg. 262(c). Emphasis added. 36 Director of Public Prosecutions v Smith [1960] AC 290 as per Viscount Kilmuir, LC, at pg. 327. 32 33
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representative one.37 In this way it is closely tied to Horder’s second principle and the two work closely to balance each other. The fourth principle the ‘notranslation’ rule is simply a reformulation of the well established legal principle found in R v Pembliton , which holds that an intention to assault a person cannot be transformed into an intention to break a window.38 This provision applies to the application of transferred malice in order to keep it from becoming overly broad and generalised. Compared to Westen and the other theories surrounding transferred malice, Horder’s remoteness doctrine succeeds in rationalising a legal mechanism that is both clear (or at least clearer than some of the other proposals) and respects fair labelling. Unlike the impersonalist doctrine, Horder’s second, third, and fourth principles prevent the remoteness doctrine from becoming overbroad. Therefore, like the impersonality doctrine, his proposal would ensure fair labelling; especially as it has the added benefit of incorporating Westen’s theory to some extent by giving the jury discretion over what is to be considered “remote” in terms of an actus reus that is compatible in nature and probability with the defendant’s mens rea . The remoteness doctrine avoids the pitfall of Westen’s theory by stipulating on what grounds the jury ought to come to their decision. Horder’s theory also shares an important strength with the purist doctrine, that of adhering to a more traditional understanding of mens rea , by borrowing a similar reasoning found in cases of unlawful act manslaughter. However, Horder’s theory is not perfect since, unlike Husak’s proposal, it does not necessarily allow for the consideration of proportionate sentencing where its criteria is not met. The remoteness doctrine might also be
37 38
Horder, 392. R v Pembliton (187225) LR 2 CCR 119, as per Chief Justice Lord Coleridge at pg. 122.
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criticised as a patchwork or Frankenstein doctrine since it borrows bits and pieces from other principles and rationales rather than standing on its own. This final argument leads to the consideration that the reforms proposed by the Law Commission in their 2006 report ought to be contemplated as a final solution to the transferred malice problem. As the law currently stands it can be safely argued that the fiction of transferred malice does fulfill a needed role, especially in the area of homicide.39 Alternatively, if the Law Commission’s proposal for a three tier homicide law were to be adopted, transferred malice may no longer be required to play this mitigating role and could be safely abolished. Indeed it is one of the stated goals of the Law Commission that such a reform would, “put an end to the perceived need constantly to tinker with the definitions of murder and manslaughter through judicial lawmaking,” which might be presumed to include such legal fictions as transferred malice.40 The Law Commission report proposes that the law of homicide be divided into the following three tiers: “(1) First degree murder (mandatory life penalty) (a) killing intentionally (b) killing where there was an intention to do serious injury, coupled with an awareness of a serious risk of causing death. (2) Second degree murder (discretionary life maximum penalty) (a) killing where the offender intended to do serious injury (b) killing where the offender intended to cause some injury or a fear or risk of injury, and was aware of a serious risk of causing death. (c) killing in which there is a partial defence to what would otherwise be first degree murder. (3) Manslaughter (discretionary life maximum penalty) (a) killing through gross negligence as to a risk of causing death 39
A fact supported by the findings of a much earlier Law Commission Report: Law Commission. 1993. “Criminal Law: Legislating the Criminal Code: Offences Against the Person and General Principles.” Law Commission No. 218. 42.1. 40 Law Commission, 2006. 2.28.
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(b) killing through a criminal act: (i) intended to cause injury; or (ii) where there was an awareness that the act involved a serious risk of causing injury (c) participating in a joint criminal venture in the course of which another participant commits first or second degree murder, in circumstances where it should have been obvious that first or second degree murder might be committed by another participant.” 41 This proposed structure would do much in advancing the two main objectives of transferred malice. It would enable more accurate and fair labelling of defendants by offering new labels and it does much to clarify the law by detailing the mens rea elements required for each tier. By creating a new middle offence of second degree murder, the Law Commission has provided for those instances that are generally considered to be not serious enough to constitute murder yet too grievous to constitute manslaughter.42 After considering the evolution and purpose of transferred malice and the various alternative doctrines proposed by abolitionists, purists, Husak, and Westen, this paper has argued that none of the alternatives which abolish transferred malice are to be preferred. None of these adequately solves the problems created by transferred malice without creating new ones. The approach of Horder is much preferred because rather than abolishing transferred malice altogether, the remoteness doctrine seeks to solve the fiction’s discrepancies by using rationalisations found in the law elsewhere. However, the ideal solution would be to see a legislative reform in the law of homicide as per the recommendations of the Law Commission. This solution would negate the need for transferred malice by replacing it with clear and precise definitions of the required mens rea for killings on a graduated scale according to the severity of
41 42
Law Commission, 2006. 1.67. Law Commission, 2006. 2.28.
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the crime. Until such a reform comes to pass, it is clear that there remains a justified need for the fiction of transferred malice. Bibliography Cases and Legislation Agnes Gore Case (1611) 77 ER 853. Attorney General’s Reference (No. 3 of 1994) [1998] AC 245. Director of Public Prosecutions v Smith [1960] AC 290. R v Gnango [2011] UKSC 59. R v Pembliton (187225) LR 2 CCR 119. R v Saunders and Archer (1573) 75 E.R. 706. Homicide Act 1957 Journal Articles and Law Commission Materials Ashworth, A. 1978. “Transferred Malice and Punishment for Unforeseen Consequences.” Reshaping the Criminal Law . London:Stevens and Sons. 11
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Ashworth, A. 2006. Principles of Criminal Law . Oxford: Oxford University Press. 5th ed. Chalmers, F. and F. Leverick. 2008. “Fair Labelling.” The Modern Law Review . 71.2. Del Mar, M. 2013. “Recovering Legal Fictions: An Introduction.” International Journal of Law in Context . 9.4. Horder, J. 2006. “Transferred Malice and the Remoteness of Unexpected Outcomes.” Criminal Law Review . Husak, D. 1996. “Transferred Intent.” Notre Dame J Law Ethics and Public Policy . 10. Husak, D. 2013. “The Philosophy of Criminal Law: Extending the Debates.” Criminal Law and Philosophy . 7.2. Schachar, E. 2012. “The Limits of Transferred Malice.” Oxford Journal of Legal Studies . 32.4. Westen, P. 2012. “The Significance of Transferred Intent.” Criminal Law and Philosophy . 7. Law Commission Report: Law Commission. 1993. “Criminal Law: Legislating the Criminal Code: Offences Against the Person and General Principles.” Law Commission No. 218. Law Commission Report: Law Commission. 2006. “Murder, Manslaughter, and Infanticide.” Law Commission No. 304.
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