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AG’s Reference No.3 of 1994 [1996] 2 All ER 10

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Leanna Costigan

on 24 October 2014

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Transcript of AG’s Reference No.3 of 1994 [1996] 2 All ER 10

At the time of the birth it became clear that, contrary to earlier belief, the knife had penetrated the unborn baby.
121 days later the baby died

However, the defendant was successfully charged with manslaughter as the requirement for manslaughter was an intention to do an unlawful act which a reasonable person would deem as dangerous.
However, the Court of Appeal answered this question by stating that the fetus had to be treated as part of the mother until it existed independently

The defendant stabbed a young woman
Who was to his knowledge carrying his child
No damage was detected to the foetus
The defendant pleaded guilty to grievous bodily harm
However, a few weeks later the woman went into labour

AG’s Reference

There can be a break in the chain of causation this is known as Novous Actus Interveniens
However hard to prove, for example;
R v Smith (1959)
The victim was stabbed by the defendant and later died, however the defenants claimed Novous Actus Interveniens. This was because the hospital had dropped the victim twice an failed to do a proper medical exam. However, the court found that there was no novous.


“An Act does not make a man guilty unless his mind be also guilty”.
Haughton v Smith [1975]
– “Fault Element”
Section 3(2)(a)-“a person shall not be convicted of murder to which this section applies or of an attempt to commit such murder unless that it is proved that he knew of the existence of each ingredient of the offence… or was reckless as to whether or not that ingredient existed”

Mens Rea

He argued he did not have the required intent to escape at the actual time of escaping.
This was accepted by the court as both mens rea and actus reus did not co-incide at the same time.

Taobo Meli v R (1954)
The defendant seriously assaulted the deceased and believed he had killed him. He then decided to dump the body over the cliff. However, it was the fall from the cliff that actually killed him. However it was held that the actus reus was ongoing, and therefore the mens rea coincides with the actus reus.

A crime is only committed when the actus reus and the mens rea exist at the same time.
For Example;
R v Scott (1967)
Scott escaped from jail after suffering a blow to the head. However, he claimed that he did not know what he was doing at the time and only realised two days later, at which point he decided to stay at large.

Judgement of Lord Hope

AG’s Reference No.3 of 1994 [1996] 2 All ER 10

Murder could not be committed where unlawful injury was deliberately inflicted to a mother carrying a child in utero in circumstances where the child was subsequently born alive and lived independently of the mother.
Therefore, the defendant could not be charged with murder because the injury was caused to the mother
Therefore lacked the required mens rea, it would require the malice to be transferred not once but twice, namely to the mother to the foetus and from the foetus to the child.

House of Lords Held;

It was argued that there was proof that the defendant intended to harm the unborn baby by deliberately harming the mother.
The child however survived independently of the mother and later died, of injuries sustained from been premature
Problem in this case was the baby died of a lung problem which is common in premature babies and was unconnected to the stabbing. However, it was argued the baby would not of been premature if the mother had not of been stabbed


At the trial, the judge directed to an acquittal on the grounds that no conviction for either murder or manslaughter was possible


Intention- “Knowingly”
Recklessness- “unjustifiable risk”
Criminal Negligence
Strict Liability- “where a person who does an act is subject to punishment regardless of the intention or negligence”.

5 categories of Mens Rea

R v Gibbons & Proctor
Gibbons and Proctor failed to feed Gibbons youngest child. This lead to the death of the child.
Gibbons claimed he gave money to Proctor to feed the child. However, the court held that the deterioration of the child’s health was obvious and Gibbons Failed to take action.

Actus Reus by Omission

“Actus non facit reum risi mena sit real”
There must be actus reus for a person to be convicted.
A person cannot me convicted on the basis of mens rea alone.
Rooted in the definition by Coke in 1640
“Murder is when any man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King’s Peace…. [with malice aforethought either expressed by the party or implied by law] so the party wounded or hurt, die form the wound or hurt… within one year and one day

One year and one day no longer the time frame.
Actus Reus

Governed by S .4 of the Criminal Justice Act 1964,(amended by the 2005 Act)
Where a person kills another unlawfully, the killing shall not be murder unless the accused person inteneded to kill, or cause serious injury to, some person.

Actus Reus
Elements that are need to established a murder conviction

Any Questions ?
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