Facts; for the opinion of the court

Facts;

 

In May 1990, the defendant in this
case had stabbed his girlfriend although he knew she was pregnant.  When the woman received care, the uterus was sewn
up, but the Doctors failed to realise that the fetus was injured. Seventeen days
after the attack, the woman was in early labour, giving birth to a premature
baby. The defendant was then charged with intent to cause grievous bodily harm
and subsequently sentenced to four years imprisonment. However, after the premature
baby died 120 days later, the defendant was charged with murder.  The trial judge had directed the acquittal of
the defendant stating that the defendant could not be liable for manslaughter
or murder due to the facts of the case1.
Subsequently, under the Criminal Justice Act 1972, s.362,
the Attorney General then asked for the opinion of the court using two points
of law3. Lord Taylor of
Gosforth C.J, Judge
and Blofeld JJ had then reached a conclusion in relation to the two
points of law that (1.1) it is possible for one to be liable for murder or
manslaughter of an unborn child where there has been ”unlawful action either deliberately to the uterus or to the mother”
4 and (1.2)
that even if the death of the child was because of the injury inflicted at the ”mother rather than the fetus does not negative any liability for murder and
manslaughter provided that the jury are satisfied that causation is proved”5.  The defendant
appealed the decision but the decision from the Appeal Court was partly affirmed
in the House of Lords6.

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Issues

 

To reach the ratio, the Attorney raised two points of law. The first
being “(1.1)Whether the
crimes of murder or manslaughter can be committed where unlawful injury is
deliberately inflicted: (i) to a child in utero, (ii) to a mother carrying a
child in utero, where the child is subsequently born alive… but later dies
and the injuries inflicted while in utero either caused or made a substantial
contribution to the death” 7and ” (1.2)Whether the fact that the death of
the child is caused solely as a consequence of injury to the mother rather than
as a consequence of direct injury to the foetus can negative any liability
for murder or manslaughter in the circumstances set out in question” 8. 

The main issues
and legal debate was regarding whether there could be mens rea towards a child
in the utero, transferred malice, and whether the chain of causation had been
broken. In defense Simon Hawkesworth Q.C and Andrew Lees argued that ” A child in the womb is not a reasonable creature in being, therefore to
kill a child in the womb is not murder”9.
On top of that,
they cited the case of  Reg. v.
Dalby 198210  to support their view that could be no transferred malice to the
child within the utero due to the chain of causation11. For one to held liable for
a crime, there must be factual and legal causation established and the chain cannot
be broken12, and
Mr. Robert Smith acting on behalf of the Crown argued that one can transfer
malice onto a child in the utero if it is subsequently born and has a life independent
from its mother13 .

 

 

Judgment;

 

The ratio decidendi of the case was
that one can be held liable for the manslaughter or murder of an unborn child.The
judges in the Court of Appeal came to the decision was through looking at
several previous cases surrounding unborn children, causation and common law. Perhaps
the most significant case cited in the Judges reasoning was Reg. v. Mitchell
198314
 because the facts of the
case highlighted how one can be liable for manslaughter of another even if the
victim appears to recovering from the initial harm caused by the defendant but dies
at a later date due to other complications. So, if applied in this case then it
is lawful for the defendant to be sentenced for manslaughter or murder for the
subsequent death of the baby. Furthermore, the cases of Reg. v. Kwok Chak Ming 196315 and Reg. v. Kwok Chak Ming (No. 2) 196316
 were used by the Court of Appeal Judges
as the facts in that case were very similar thus the Judges were able to apply
the facts to the case they were concluding.  In Reg.
V. Kwok Chak Ming (1963) case, the Court of Appeal upheld that murder or manslaughter
can be committed to an unborn child ”
who is subsequently born and dies of injury” 17,
in which the Judges in this case followed the same reasoning. To reach a
conclusion, the Court of Appeal judges considered the law based on the four
principles18 suggested
by Mr. Robert Smith (acting on behalf of the Crown). In relation to the four
principles the Judges found that;

 1) The act committed by the defendant does not
have to cause the consequence of death at the given moment of the act19.

 2) Mens rea for murder or manslaughter can be
transferred from the mother to the unborn child 20.

3) Transferred malice
can occur even if the child is still apart of the mother and is born alive later
from the time of the unlawful act21

4) That the same principles are for
murder and manslaughter.

Thus, this helped form their ratio that
one can be liable for murder or manslaughter of an unborn child ”where unlawful injury is deliberately
inflicted either to a child in utero or to a mother carrying a child in utero”22 and
that ” the fact that the death of the child is caused solely in consequence of
injury to the mother rather than as a consequence of injury to the foetus does
not negative any liability for murder and manslaughter provided that the jury
are satisfied that causation is proved”23

 

 

Impact;

 

This case is significant and is
considered a breakthrough as it paved a way for legal discussion surrounding
the rights of an unborn child. Moreover, it is a step forward for pro-life campaigns
seeking for an unborn to be given the same rights as a person who is out of the
utero.

Although the Court of Appeal was
deciding whether one could be held liable for the murder or manslaughter of an
unborn child in certain circumstances, it failed to bring into light the
violence many women experience during pregnancy. Studies have shown that some victims
of domestic abuse experience an increase in domestic abuse during pregnancy 24. It is pivotal
to look at the social climate and the issues when coming to a ratio in a case of
this nature. However, this case was looking at questions of fact such as whether
the chain of causation was broken when the child had died because of other
complications therefore social issues should influence a judgement. Nonetheless
when reaching a conclusion, such issues should be raised as a matter of public awareness.
One the other hand, this case may be perceived by some to be unjust in a sense
that one can be held liable for the death of a child in utero even if they were
not aware of a pregnancy or did not have the mens rea to cause harm to the
child. Interestingly Lisa Cherkassky
explores how one can held be found guilty of manslaughter for
consequences not intended 25. Regardless
of opinion this case is noteworthy.

1 Attorney General’s Reference (No 3 of 1994) – 1996
2 All ER 10

2 Criminal
Justice Act 1972, s.36

3 Attorney General’s Reference (No 3 of 1994) – 1996
2 All ER 10

4 Attorney
General’s Reference (No 3 of 1994) – 1996 2 All ER 10

5 Attorney
General’s Reference (No 3 of 1994) – 1996 2 All ER 10

6 Attorney
General’s Reference (No 3 of 1994) – 1997 3 All ER 936

7 Attorney
General’s Reference (No 3 of 1994) – 1997 2 All ER 10

8 Attorney
General’s Reference (No 3 of 1994) – 1997 2 All ER 10

9 Attorney
General’s Reference (No 3 of 1994) – 1997 2 All ER 10 3.2

10  Reg. v. Dalby 1982 1 W.L.R. 425 

11 Attorney
General’s Reference (No 3 of 1994) – 1997 2 All ER 10 3.2

12 Jonathan Herring, Criminal law; text, cases and materials, (7th
edition) Oxford University Press, 2016. (page 88-91)

13 Attorney
General’s Reference (No 3 of 1994) – 1997 2 All ER 10 3.1

14 Reg. v. Mitchell
1983 Q.B. 741

15 Reg. v. Kwok Chak Ming
1963 H.K.L.R. 226

16 Reg. v. Kwok Chak Ming (No.
2) 1963 H.K.L.R. 349

17 Reg. v. Kwok Chak Ming (No.
2) 1963 H.K.L.R. 349

18 Attorney
General’s Reference (No 3 of 1994) – 1996 2 All ER 10

19 Attorney
General’s Reference (No 3 of 1994) – 1996 2 All ER 10

20 Attorney
General’s Reference (No 3 of 1994) – 1996 2 All ER 10

21 Attorney
General’s Reference (No 3 of 1994) – 1996 2 All ER 10

22 Attorney
General’s Reference (No 3 of 1994) – 1996 2 All ER 10

23 Attorney
General’s Reference (No 3 of 1994) – 1996 2 All ER 10

24 Campbell, JC, Oliver C,
Bullock L. “Why battering during pregnancy?” AWHONN’s clinical issues in
perinatal and women’s health nursing. 4.3 (1993.) 343. Print.

25 Cherkassky, L. (2008) ‘Kennedy and
unlawful act manslaughter: an unorthodox application of the doctrine of
causation’, Journal of Criminal Law, 72(5) pg 1 – 307)