Premature baby's death not murder but manslaughter

Where a woman went into premature labour as a result of a violent attack upon her, and the baby was born alive but subsequently died from the effects of prematurity, the mother's attacker could not be guilty of the baby's murder, but could be guilty of manslaughter.

Attorney General's Reference No 3 of 1994; House of Lords (Lord Goff of Chieveley, Lord Mustill, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde) 24 July 1997

The House of Lords reversed the decision of the Court of Appeal that the foetus was taken to be part of the mother until it had an independent existence, and that a conviction for murder would therefore be justified.

The appellant had stabbed his girlfriend, who was between 22 and 24 weeks pregnant with their child, in the face, back and abdomen. Seventeen days after the stabbing, she went into premature labour. The baby died after 121 days from the effects of premature birth.

The appellant was charged with murder after the baby's death. At his trial the judge ruled that on the evidence neither murder nor manslaughter was proved, and directed the jury to acquit the appellant.

The Attorney General referred the matter to the Court of Appeal under section 36 of the Criminal Justice Act 1972 on the following point of law:

1.1 Subject to the proof by the prosecution of the requisite intent in either case: 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, enjoys an existence independent of the mother, thereafter dies and the injuries inflicted while in utero either caused or made a substantial contribution to the death.

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 1.1.

Simon Hawkesworth QC and Andrew Lees (Sugare & Co) for the appellant; Robert Smith QC and R. Calvert-Smith (Crown Prosecution Service) for the Crown.

Lord Mustill said that he perceived the established rules to be as follows: it was sufficient to raise a prima facie case of murder (subject to self- defence or provocation) for it to be proved that the defendant did the act which caused the death intending to kill the victim or cause grievous bodily harm.

If the defendant did an act intending to cause a particular kind of harm to B, and unintentionally did that kind of harm to V, then the intent to harm B might be added to the harm actually done to V in deciding whether the defendant had committed a crime towards V.

Except under statute an embryo or foetus in utero could not be the victim of a crime of violence, and in particular, violence to the foetus which caused its death in utero was not murder.

The existence of an interval of time between the doing of an act by the defendant with the necessary wrongful intent and its impact on the victim in a manner which led to death did not in itself prevent the intent, the act and the death from together amounting to murder, so long as there was an unbroken causal connection between the act and the death.

Violence towards a foetus which resulted in harm suffered after the baby had been born alive could give rise to criminal responsibility even if the harm would not have been criminal (apart from statute) if it had been suffered in utero.

Those rules were not based on principles sound enough to justify their extension to a case where the defendant acted without an intent to injure either the foetus or the child it would become. That would require a double "transfer" of intent: from the mother to the foetus and then from the foetus to the child as yet unborn.

With regard to manslaughter, all that was needed, once causation was established, was an act creating a risk to anyone. In a case such as the present, therefore, responsibility for manslaughter would automatically be established, once causation had been shown, simply by proving a violent attack even if the attacker had had no idea that the woman was pregnant.

- Kate O'Hanlon, Barrister