A stabs a pregnant woman and is convicted of wounding. After the stabbing the child is born very prematurely and dies. Prior to birth it is held that the child is not a distinct organism from the mother and that A cannot be convicted of murder. The attorney general’s argument is that if a person gives a mother a poisoned drink, which her baby drinks instead and dies, the doctrine of transferred malice makes the poisoner liable for murder. Hence if the mother ingests the poison and the baby in utero dies, this is still murder. Hence if B stabs a pregnant woman, thus killing her baby, his guilty of murder. However Lord Mustill points to a precedent stating that a foetus cannot be a victim of murder. “Except under statute an embryo or foetus in utero cannot be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not a murder.” Once her life began, the baby died because her constitution was too weak to survive. Lord Mustill refuses the comparison with a time bomb set to explode after birth, saying that in such an example an intention exists to kill the child. However surely the doctrine of transferred malice covers this distinction and therefore a murder charge is appropriate? The conviction was changed to manslaughter (since no intent is required) but transferred malice cannot apply “doubly” so that the malice transferred from mother to foetus and from foetus to child is impermissible as a mens rea to murder.
He says that the foetus is a separate organism from the mother. Also the “unlawful and dangerous” act applied to the maternal conditions in which the foetus developed and hence caused the child to die of natural causes once born. The defendant acted in a way that he would have foreseen that death was a possibility for anyone and once causation is established manslaughter can be applied. The creation of risk by a “dangerous and unlawful” act does not have to be directed to any specific person and no transferred malice is therefore required.