TRANSFERRED MALICE: A CRITICAL ANALYSIS

INTRODUCTION

“There is a technical rule of law, arrived at, it may be, more by the pressure for a definite decision in particular cases than as the result of a process of strictly logical reasoning, which produces the result that in some circumstances a like malicious intent may be transferred from the object in respect of which it was actually entertained to the object with respect to which the offence charged was committed.”[1] Lord Mustill’s characterisation captures the essence of the doctrine of transferred malice, which permits a court to convict a defendant of an offence committed against a victim the defendant never intended to harm, on the basis that the defendant’s culpable state of mind toward an intended target is relocated onto the actual victim. Traditionally, the doctrine has been treated as a settled and largely uncontroversial feature of English criminal law, preventing a defendant from escaping liability merely because a blow, shot, or missile struck the wrong person.[2] However, closer judicial and academic scrutiny reveals that the doctrine rests upon a legal fiction whose limits have proved difficult for the courts to draw consistently. This report argues that recent case law has exposed significant instability within the doctrine, and that its current common law formulation should be reconstructed around the defendant’s actual foresight of risk rather than retained as a fiction of transfer.

THE TRADITIONAL DOCTRINE

To assess whether the doctrine can be defended in its current form, it is first necessary to understand its origin and operation. Transferred malice is historically rooted in the old common law notion of ‘malice aforethought’ in homicide, which by the nineteenth century had migrated into the general law of non-fatal offences against the person.[3] The case that most demonstrates  the doctrine in its modern form is R v Latimer, in which the defendant aimed a blow with his belt at one man during a public house altercation, missed, and instead struck and seriously wounded a woman standing nearby.[4] The Court held that the malice the defendant bore toward his intended target was sufficient, without more, to found liability for the wound actually inflicted on the unintended victim.

The significance of the doctrine extends beyond a mere technical curiosity. It reflects a widely shared moral justification that a defendant should not escape liability purely because of the accident of trajectory, misidentification, or timing.[5] A defendant who fires at one person but strikes another is not thought to be meaningfully less culpable than one whose aim was accurate. This functional justification underpins the doctrine’s continued survival, even as its theoretical foundations have come under sustained challenge.

THE SAME OFFENCE LIMITATION

The earliest and most significant limitation on the doctrine emerged from the courts’ treatment of offences against property. In R v Pembliton , the defendant, ejected from a public house and involved in a street fight, threw a stone at a group of opponents, missed, and instead broke a nearby window. [6]  His conviction under the Malicious Damage Act 1861 was quashed, the court holding that the malice he bore toward the persons he intended to strike could not be transferred to found liability for a wholly different species of offence, namely damage to property.[7]

This ‘same offence’ rule permits transfer between offences against the person but blocks transfer between offences against the person and offences against property, even where the defendant’s underlying disregard for those around him is identical in both scenarios.[8] The rule’s coherence depends on statutory categorisation under the Offences Against the Person Act 1861 and the Criminal Damage Act 1971,[9] rather than on any unified account of culpability. Shachar Eldar’s comparative analysis argues that the doctrine is better confined to cases of reasonably foreseeable harm to the actual victim, a criterion that cuts across, rather than tracks, the person/property distinction drawn in Pembliton.[10] The rule’s coherence therefore depends less on any unified theory of fault than on the accident of separate statutory drafting across unrelated nineteenth and twentieth century legislation.

THE LIMITS OF TRANSFER

The doctrine was tested to its conceptual limit in Attorney-General’s Reference (No 3 of 1994) where the defendant stabbed his pregnant girlfriend intending to cause her really serious harm; the child was born alive but died some months later from the injuries sustained in utero.[11] The House of Lords was asked whether the defendant’s malice toward the mother could be transferred, via the foetus, to the child once born, so as to support a conviction for murder.[12]

Their Lordships held that it could not, since this would require malice to be transferred not once but twice, first from the mother to the foetus, and then from the foetus to the child as a legal person distinct from its mother.[13] Lord Hope similarly rejected the Crown’s argument that a foetus could be treated as merely part of the mother for these purposes, emphasising the foetus’s status as a distinct, if dependent, organism.[14] A conviction for unlawful act manslaughter nonetheless remained available on ordinary causation principles, without any need to invoke transferred malice at all.

The case is significant because it demonstrates that the courts abandon the doctrine’s fiction the very moment it is pushed beyond a single, direct transfer, which is itself evidence that the doctrine is applied instrumentally rather than derived from a stable underlying principle.[15]

CAUSATION AND EXTENT OF DOCTRINE

A further extension of the doctrine’s underlying logic occurred in R v Mitchell, where the defendant, attempting to force his way into a post office queue, struck an elderly man, who fell backward onto an elderly woman; she died some weeks later from complications arising from the resulting fracture. [16]The Court of Appeal upheld the conviction for manslaughter, holding that it was immaterial that the unlawful act was not directed at, and involved no direct physical contact with, the person who ultimately died.

Mitchell extends the logic of transferred malice into a chain-causation scenario involving an intervening body, broadening the doctrine’s practical reach beyond the single-blow paradigm established in Latimer. The Court of Appeal’s reasoning rested on the proposition that the criminality of an unlawful act does not depend on which particular victim ultimately suffers its consequences, provided the causal connection between the defendant’s conduct and the resulting harm remains unbroken.[17] This extension foreshadows a far more controversial expansion of the doctrine, considered in the following section, in which the courts combined transferred malice with the separate doctrine of joint enterprise liability.

TRANSFERRED MALICE AND JOINT ENTERPRICE

The most significant modern extension of the doctrine arose in R v Gnango, the defendant and an unapprehended second gunman, referred to as ‘Bandana Man’, engaged in a mutual gunfight in a car park; a stray shot fired by Bandana Man killed an entirely innocent bystander.[18]  The Supreme Court held that Bandana Man was plainly guilty of murder under transferred malice, and, by a 6–1 majority, that the defendant shared that liability because the two men had agreed, whether expressly or on the spur of the moment, to engage in a gunfight in which each intended to kill or seriously injure the other, making it a matter of chance which gunman fired the fatal shot.

Lord Brown and Lord Clarke, concurring separately, preferred to characterise the defendant’s liability as that of a principal rather than an accessory to the shooting.[19] Lord Kerr, dissenting, considered that the jury had never been directed to address whether the shared common purpose extended to an agreement to be shot at, and that an agreement merely to exchange fire does not necessarily amount to an intention to assist or encourage the other party to shoot.[20]

Gnango illustrates the risk of doctrinal overreach inherent in the fiction of transfer: it extended murder liability to a defendant who was, on the facts, more plausibly the intended victim of the fatal shot than its author. The subsequent narrowing of joint enterprise liability in R v Jogee[21], which held that foresight is merely evidence of intent to assist rather than its equivalent, arguably undercuts part of the reasoning on which Gnango’s joint-enterprise analysis rested.

CORRESPONDENCE PRINCIPLE AND FAIR LABELLING

Beyond the individual cases, the doctrine sits uneasily with two foundational principles of criminal law theory: the correspondence principle and fair labelling.

It can be argued that a defendant should instead be convicted of attempting the offence against the intended victim and, separately, of manslaughter or a lesser offence in relation to the actual victim, based on the defendant’s genuine foresight of risk to bystanders.

Fair labelling stresses that the name of an offence should communicate the true nature of the defendant’s conduct to the victim, the defendant, and the public.[22] Where malice is transferred, the resulting conviction obscures the fact that the defendant’s actual conduct was an attempt against one person that, through chance, produced an unintended victim.

RECYCLED MALICE

A further and comparatively under-examined difficulty concerns what Findlay Stark has termed the ‘recycling’ of malice. Many jurisdictions that permit transferred malice also convict the defendant of an attempt against the originally intended victim, meaning the defendant’s single intention is effectively used twice: once to construct a completed offence against the actual victim, and once to construct an attempt against the intended victim.[23]

Stark argues that no convincing justification for this recycling exists on culpability grounds alone, since the defendant’s blameworthiness does not increase merely because two separate legal labels can be pinned to a single intention.[24] The recycling problem compounds the incoherence already identified in the double-transfer scenario of Attorney-General’s Reference (No 3 of 1994): if malice can be used twice within a single permissible transfer, the courts’ refusal to allow it to be used twice across a sequential transfer becomes even harder to defend as a matter of underlying principle, rather than as an ad hoc limit adopted to avoid an uncomfortable result.

REFORMS

Calls for statutory clarification of the doctrine are not new. As early as 1993, the Law Commission’s proposals for a Criminal Code considered whether the general principles governing fault, including the transfer of malice between victims, ought to be placed on a statutory footing rather than left to piecemeal judicial development.[25] Although these proposals were never enacted, they illustrate that the doctrinal instability identified in this report has long been recognised as a candidate for codification, rather than as a novel criticism confined to the recent case law discussed above.

The Law Commission’s later review of homicide law, culminating in its report on murder, manslaughter and infanticide, likewise acknowledged the doctrinal difficulties surrounding transferred malice, though comprehensive legislative reform of the doctrine itself has still not been enacted.[26] Drawing on the critical analysis above, three directions for reform merit particular attention: statutory codification of the same-offence limitation established in Pembliton, so that its scope no longer depends on the accident of separate statutory categorisation; adoption of a foreseeability- or remoteness-based test, along the lines proposed by Eldar and by Jeremy Horder,[27] in place of the transfer fiction, so that liability tracks the defendant’s actual foresight of risk to the eventual victim; and express statutory limitation on both sequential and recycled transfers of malice, codifying the outcome in Attorney-General’s Reference (No 3 of 1994) and addressing the puzzle identified by Stark.

Any reformed model should, however, preserve the doctrine’s legitimate victim-centred function. Transferred malice can be defendend on the ground that it allows the criminal law to authoritatively record the wrong done to the actual victim, rather than treating her injury as a mere by-product of an attempt against someone else.[28] A foreseeability-based approach can retain a completed-offence label for the actual victim without relying on the discredited fiction of transfer, thereby reconciling the doctrine’s practical utility with the correspondence and fair-labelling concerns identified above.

CONCLUSION

These judicial developments demonstrate a clear evolution in the operation, if not the formal existence, of transferred malice. While the early case law treated the doctrine as a straightforward mechanism for relocating intent, modern authority has introduced significant qualifications: a same-offence limitation of uncertain principle, a firm refusal to permit sequential transfer, and a controversial extension into joint criminal ventures.

The cases discussed reveal a judiciary willing to sustain the doctrine where it produces a result consistent with perceived justice, while abandoning or confining it wherever its underlying fiction is pushed too far. Nevertheless, transferred malice remains formally part of English criminal law, and courts have shown no inclination to abolish it outright.

Accordingly, this essay has argued that transferred malice has not been abandoned but has been meaningfully complicated by the accumulation of limiting principles that a genuinely coherent doctrine should not require. The modern law is best understood as a functional device sustained by judicial pragmatism rather than by settled theory, and one whose long-term legitimacy would be better secured by legislative reconstruction around the defendant’s actual foresight of risk than by continued ad hoc judicial development.[29]

BIBLIOGRAPHY

Primary Sources:

• Cases:

1. Attorney-General’s Reference (No 3 of 1994) [1998] AC 245.
2. R v Gnango (Armel) [2011] UKSC 59, [2012] 1 AC 827.
3. R v Jogee (Ameen Hassan) [2016] UKSC 8, [2017] AC 387.
4. R v Latimer (1886) 17 QBD 359.
5. R v Mitchell [1983] QB 741 (CA).
6. R v Pembliton (1874) LR 2 CCR 119.

• Legislations:

1. Criminal Damage Act 1971.
2. Malicious Damage Act 1861.
3. Offences Against the Person Act 1861.

Secondary Sources:

• Books:

1. Ormerod D and Child J, Smith, Hogan, and Ormerod’s Essentials of Criminal Law (6th edn).
2. Ormerod D, Laird K, and Gibson M, Smith, Hogan, and Ormerod’s Criminal Law (17th edn).

• Articles:

1. Eldar S, ‘The Limits of Transferred Malice’ (2012) 32 OJLS 633.
2. Horder J, ‘Transferred Malice and the Remoteness of Unexpected Outcomes from Intentions’ [2006] Crim LR 383.

• Reports:

1. Law Commission, Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com No 218, 1993)
2. Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006)

[1] Attorney-General’s Reference (No 3 of 1994) [1998] AC 245, per Lord Mustill.

[2] David Ormerod , Karl Laird , and Matthew Gibson, ‘Smith, Hogan, and Ormerod’s Criminal Law’ (17th edn) 128.

[3] Malicious Damage Act 1861, s 51, now superseded by the Criminal Damage Act 1971, s 1.

[4] R v Latimer (1886) 17 QBD 359.

[5] ‘Smith, Hogan, and Ormerod’s Criminal Law’ (n 2).

[6] R v Pembliton (1874) LR 2 CCR 119.

[7] Malicious Damage Act 1861 (n 3).

[8] (n 2) 127.

[9] Offences Against the Person Act 1861, ss 18, 20, 47; Criminal Damage Act 1971, s 1(1).

[10] Shachar Eldar, ‘The Limits of Transferred Malice’ (2012) 32 OJLS 633.

[11] Attorney-General’s Reference (No 3 of 1994) (n 1).

[12] Attorney-General’s Reference (No 3 of 1994) (n 1).

[13] Attorney-General’s Reference (No 3 of 1994) (n 1), per Lord Mustill.

[14] Attorney-General’s Reference (No 3 of 1994) (n 1), per Lord Hope.

[15] Attorney-General’s Reference (No 3 of 1994) (n 1).

[16] R v Mitchell [1983] QB 741 (CA).

[17] Ibid.

[18] R v Gnango (Armel) [2011] UKSC 59, [2012] 1 AC 827 [16], [60]– [61] (Lord Phillips PSC and Lord Judge CJ).

[19] R v Gnango (n 18) [68], [71] (Lord Brown); ibid [81] (Lord Clarke).

[20] R v Gnango (n 18) [115], [121], [126]– [127], [130] (Lord Kerr, dissenting).

[21] R v Jogee (Ameen Hassan) [2016] UKSC 8, [2017] AC 387 [87], per Lord Hughes and Lord Toulson.

[22] David Ormerod and John Child, ‘Smith, Hogan, and Ormerod’s Essentials of Criminal Law’(6th edn) 28.

[23] David Ormerod and John Child, ‘Smith, Hogan, and Ormerod’s Essentials of Criminal Law’(6th edn) 28.

[24]ibid 520-521.

[25] Law Commission, Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com No 218, 1993).

[26] Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006).

[27]Jeremy Horder, ‘Transferred Malice and the Remoteness of Unexpected Outcomes from Intentions’ [2006] Crim LR 383.

[28] Ibid

[29](n 23).