1. Transferred Malice & Contemporaneity
Date: Thursday, 29 November 2018
Transferred Malice & Contemporaneity
Lesson Outcomes:
Identify the meaning of the term transferred malice & contemporaneity
Describe the cases involving transferred malice & contemporaneity
Apply the concepts to problem questions
Specification links:
Actus reus: voluntary acts and omissions; causation.
Mens rea: intention and subjective recklessness; transferred malice; coincidence of actus reus and mens rea.
Strict liability, including areas of application, and reasons for its imposition.
Key vocabulary - Transferred malice, contemporaneity
Danni had broken up with her boyfriend, Jack, and was very angry that he continued to climb onto the branches of a tree in the park next to her garden and shout at her when she was out in her garden. She went out one night and partly sawed through some of the branches on the tree, hoping that they would break and that Jack would fall and be injured next time he pestered her. Unfortunately, the next day, Daisy, aged 6, climbed the tree. She fell and was seriously injured when one of the branches broke. 1

2. Introduction
Transferred malice is where the mens rea of the crime directed at one person is transferred to the unintended victim of the crime
It is an interpretation of contemporaneity
Two old cases and one new one

3. R v Latimer (1886) LR 17 QBD 359, CCR
D, a soldier during an argument with another man C in a pub, took off his belt swung it at C, missed and wounded the landlady V.
Principle – The intention to strike C was transferred to V under the doctrine of transferred malice, although the result, in some respects, is an unintended one.
Guilty 3

4. R v Pembliton (1969) LR 2 CCR 119, CCR
D broke a pub window by picking up a stone and throwing it at the group of men he had been fighting, missed them and broke the window behind them.
Principle – His "malice" in intending to strike another person could not be transferred to an intention to break the window.
Obiter: He could have been convicted had it been proved that he was reckless, having foreseen the risk of damage to the window.
Not Guilty 4

5. R v Mitchell (1983) 2 All ER 427
D and another man S became involved in a scuffle in a Post Office; D pushed S, who fell onto an elderly lady C, causing C injuries from which she later died.
Principle – His intention to assault X was transferred to C.
Guilty of manslaughter 5

6. The legal principle
Transferred malice is only applicable when the actus reus intended is the same as the actual actus reus inflicted on the unintended victim.
Where the actual actus reus is different from the intended actus reus no malice can be transferred.

7. Plenary – try it now
Danni had broken up with her boyfriend, Jack, and was very angry that he continued to climb onto the branches of a tree in the park next to her garden and shout at her when she was out in her garden. She went out one night and partly sawed through some of the branches on the tree, hoping that they would break and that Jack would fall and be injured next time he pestered her. Unfortunately, the next day, Daisy, aged 6, climbed the tree. She fell and was seriously injured when one of the branches broke.

8. Starter – which of these creates criminal liability and why?
D stabs V during an argument and leaves the house. This triggers a dormant ailment and he dies five minutes later
D stabs his friend to death during an argument
Time Line
Time Line
D does so intending to kill him
Not realising V is dead, D’s anger grows and returns home and stabs V through the duvet intending to kill him
Crime A
Crime B

9. Starter – which of these creates criminal liability?
ACTUS REUS
ACTUS REUS
Time Line
Time Line
MENS REA
MENS REA
Crime A - liability
Crime B – no liability

10. Background The two elements must coincide
Guilty mind at the same time the act is committed
Also called contemporaneity
Problems is there is a time lapse
Actus reus before Mens rea
Mens rea before Actus reus
Courts have modified the rule to make sure a series of linked acts or omissions can be treated as a single continuing act

11. Actus reus before mens rea
Defendant completes act before he forms state of mind
Two ways that courts have constructed offences in these cases
Treating as a continuing act (Fagan)
Basing liability on failure to act after creating a dangerous situation (Miller)

12. Fagan v Metropolitan Police Commissioner (1969) 3 All ER 442, DC
D accidently stopped his car on a policeman’s foot but then refused to move when he realised this. He appealed against his conviction for assaulting a police officer in the execution of his duty on the basis that at the time of the actus reus (when his car made contact with the policeman’s foot) he had no mens rea (because it was accidental) and by the time he formed mens rea (refusing to move) there was no act upon which to base liability (he merely refused to undo that which had already been done)
Principle – It was held that the actus reus of assault (in the sense of a battery) came into being when contact was first made between the car and the policeman’s foot. This actus reus continued for the whole time that the car remained on the foot, only ending when the car was moved. At the point in time that the defendant became aware of the contact and refused to move, he developed the requisite mens rea and liability was complete.
Guilty 12

13. R v Miller (1983) 2 All ER 427
D a vagrant was sleeping in a building, and fell asleep on his mattress. When he woke up, he saw that his cigarette had caused the mattress to smoulder. Instead of calling for help, just moved into another room. The fire flared up and spread.
Principle – He was convicted of arson, not for starting the fire but for failing to do anything about it.Lord Diplock:"...I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of "actus reus," suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law."
Guilty of arson (criminal damage by fire)

14. Complete the time line for Fagan
ACTUS REUS
Time Line
MENS REA

15. Complete the time line for Fagan
Defendant drives car onto policeman’s foot
Actus reus
continues until contact ceases
ACTUS REUS
Time Line
D is unaware that his car has made contact with the policeman’s foot. No liability at this point.
D becomes aware of the situation but refuses to move. Mens rea arises and coincides with actus reus. Liability
MENS REA

16. You know the facts for Miller – try and complete his timeline
ACTUS REUS
Time Line
MENS REA

17. You know the facts for Miller – try and complete his timeline
Defendant drops a cigarette onto a mattress in a derelict house
Mattress smoulders. The defendant awakes but does nothing to put out the fire. The actus reus is fulfilled by his failure to act when he had a duty to do so.
ACTUS REUS
Time Line
D is unaware of this as he is asleep
Defendant awakes and notices that the mattress is burning
MENS REA

18. Mens rea before actus reus
Fagan or Miller cannot deal with this set of circumstances
For this the court took the SINGLE TRANSACTION view
A defendant cannot have the intention to kill if he believes the person is already dead

19. Thabo Meil (1954) 1 All ER 373, PC (South Africa)
D and accomplices took V to a hut and beat him over the head intending to kill him. They rolled his body over a cliff to make the death appear accidental. In fact, the victim survived both the beating and the fall from the cliff, but died from exposure shortly afterwards.
Principle – Actus and mens were present throughout; no need to separate them, there was a causal link.  Where the actus reus consists of a series of linked acts, it is enough that the mens rea existed at some time during that series, even if not necessarily at the time of the particular act which caused the death.
Lord Reid:
"[It is] ... impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law.”
Guilty of murder 19

20. Church (1966) 2 All ER 72
D took V (a married woman) to a van for sexual purposes. V mocked D and slapped him D knocked V unconscious. Unable to revive her he panicked and threw her into a river. V drowned.
Principle – A defendant will be liable if the entire incident viewed as a whole could be viewed as a ‘series of events’ designed to cause death or GBH. The elements of the offence will be satisfied provided the actus reus and mens rea occur somewhere during a single transaction.
Edmund Davies:
'an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.' ”A grosser case of criminal negligence it would be difficult to imagine.”
Guilty of manslaughter. 20

21. What is the difference?
Can you spot the difference between Meli and Church?
Clue: it has to do with one of the elements of criminal liability

22. Plenary - Complete the time line for Church
ACTUS REUS
Time Line
MENS REA

23. Complete the time line for Church
Defendant attacks victim. She does not die. No actus reus of murder
Defendant throws unconscious woman into river to dispose of the body. As a result, the victim drowned thus fulfilling the actus reus of murder
ACTUS REUS
Time Line
Defendant intends to cause GBH thus satisfying the mens rea of murder
Defendant did not intend to kill the victim at this point as he believed she was already dead. It was held that he was liable as the whole incident was a ‘series of events’ designed to cause death
MENS REA