Transfer of Malice

Introduction

Transferred malice (also called transferred intent) deals with situations where a defendant intends to harm one person but ends up harming another. The law treats the defendant as having the required mental element towards the actual victim if two conditions are met: the defendant had the necessary mens rea for the offence, and the completed offence is of the same kind as intended.

Classic examples involve offences against the person: aiming a blow at A that instead hits B; intending to kill A but killing B. The doctrine does not permit wholesale relabelling of offences. Intending to injure a person cannot be repurposed to cover criminal damage to property, and attempts to “transfer twice” (for example, from mother to foetus to child) have been rejected.

This guide draws out the tests, limits, and leading cases, including R v Latimer, R v Pembliton, Attorney-General’s Reference (No 3 of 1994), R v Mitchell, and R v Gnango, and shows how the doctrine is used in practice.

What You'll Learn

• The working definition of transferred malice
• When mens rea can pass from an intended victim to an actual victim
• The “same kind of offence” rule (person-to-person, not person-to-property)
• How causation and foreseeability interact with transferred malice
• The limits set by cases such as R v Pembliton and AG’s Reference (No 3 of 1994)
• How R v Latimer and R v Mitchell apply to offences against the person
• Why R v Gnango matters for mutual shootings and group cases
• Practical steps for charge selection, jury directions, and exam answers

Core Concepts

What transferred malice means in practice

• The doctrine allows a defendant’s mens rea towards one person to be applied to the actual victim where the defendant’s actus reus harms that other person.
• It is most commonly used in offences against the person (assault, battery, GBH, murder).
• The defendant must have the mental state required for the completed offence. If D intends to cause GBH to A but kills B, D has the mental element for murder (intent to cause serious harm) and the actus reus (killing) is satisfied in relation to B.

Key points:

• The identity of the victim can be substituted if the mental element and the nature of the offence align.
• The coincidence requirement still applies: at the time of the conduct causing harm, D had the required mens rea (albeit directed at someone else).

The “same kind of offence” rule and its limits

• The doctrine works within the same category of offending. Person-to-person transfers are orthodox (Latimer).
• It does not move between person and property (Pembliton). Intending to hurt A does not provide the mental element for damaging a window.
• The doctrine does not allow “double transfer”. In AG’s Reference (No 3 of 1994) there was no transfer from the mother to the foetus and then to the child who was born alive and later died. Murder failed, though manslaughter was available.

Practical reading:

• Ask whether the mental element D held, if treated as directed at the actual victim, would satisfy the mental element of the completed offence against that victim.
• If the answer is yes and the offence is of the same kind (e.g., from battery on A to battery on B, or intent to cause serious harm to A leading to the death of B), transferred malice can apply.

Causation, foreseeability, and defences

• Transferred malice does not replace causation. You still need to show that D’s act caused the harm to the actual victim (subject to usual rules, including the thin skull rule).
• Where the harm results through a chain of events, ask whether the chain was broken by a novus actus interveniens. If not, causation stands.
• Defences travel with the transfer. If D would have had a defence (e.g., self-defence) regarding the intended victim, that defence can apply where the force accidentally injures a bystander, provided the force used was reasonable.

Joint enterprise and mutual combat

• The doctrine has been discussed alongside joint venture liability in cases of mutual shootings. In R v Gnango, the Supreme Court upheld a murder conviction when a bystander was shot by the other gunman during a gunfight involving the defendant.
• Gnango is often read as establishing that where parties agree to a gunfight intending serious harm, and a passer-by is killed, liability can arise for the death notwithstanding who fired the fatal shot.
• After R v Jogee [2016] UKSC 8 clarified secondary liability, prosecutors typically focus on principal liability, causation, and the defendant’s own intent, while acknowledging Gnango’s outcome remains good law.

Key Examples or Case Studies

R v Latimer (1886) 17 QBD 359

• Facts: During a quarrel, the defendant aimed a belt at a man. The belt rebounded and struck a woman, causing serious injury.
• Holding: Liability transferred from the intended victim to the actual victim for an offence against the person.
• Takeaway: Intent to injure A can supply the mental element for the same offence against B.

R v Pembliton (1874) LR 2 CCR 119

• Facts: The defendant threw a stone at a person but missed and broke a window. He was charged with malicious damage to property.
• Holding: The conviction failed. The intent to injure a person could not transfer to property damage.
• Takeaway: Transferred malice operates within the same kind of offence; person-to-property is outside its scope.

Attorney-General’s Reference (No 3 of 1994) [1998] AC 245

• Facts: D stabbed his pregnant partner. The child was born prematurely and later died from the injuries. D was prosecuted for murder.
• Holding: No “double transfer” of malice from mother to foetus and then to the child. Murder failed, though manslaughter could be made out.
• Takeaway: The doctrine is limited; it does not bridge different victims over different stages in this way.

R v Mitchell [1983] QB 741

• Facts: D punched a man in a post office queue. That man fell into an elderly woman who died. D was convicted of manslaughter.
• Reasoning: The unlawful battery on the first victim carried through the chain of events causing death to a different person.
• Takeaway: In unlawful act manslaughter, transferred malice (together with causation) can ground liability where an unlawful assault on A results in fatal harm to B.

R v Gnango [2011] UKSC 59

• Facts: The defendant engaged in a gunfight with another. A passer-by was shot dead by a bullet from the other gunman.
• Holding: The Supreme Court upheld a murder conviction. The court reasoned that participation in a mutual shooting with intent to cause serious harm, combined with the fatal result, grounded liability, despite the fatal shot being fired by the other party.
• Takeaway: In mutual combat shootings, liability can arise for the death of a third party. Post-Jogee, analysis often focuses on principal liability, intention to cause serious harm, and causation, with Gnango’s result still standing.

Practical Applications

How to analyse a problem or case:

1. Identify the intended offence and mental state

   • What offence did D aim at? Against whom?
   • Did D have intent, recklessness, or another mental state?

2. Identify the actual offence and victim

   • What offence was actually committed?
   • Who was harmed? Is it a person or property?

3. Check the “same kind of offence” alignment

   • Person-to-person transfers are orthodox (e.g., assault/battery/GBH/murder).
   • Person-to-property transfers are not permitted (Pembliton).
   • Do not assume “double transfer” works (AG’s Ref (No 3 of 1994)).

4. Confirm that the mens rea matches the completed offence

   • If D intended to cause serious harm to A but killed B, the mental element for murder is present.
   • If D intended only minor force but B suffers unexpected injury, consider unlawful act manslaughter, subject to causation and dangerousness tests.

5. Prove causation

   • Apply standard causation rules: factual causation and legal causation.
   • Consider intervening acts. Normal responses by victims or third parties will rarely break the chain.

6. Consider defences

   • If force against A would have been lawful (e.g., reasonable self-defence), accidental harm to B may also be excused. The defence travels if the same conditions are met.

7. Consider joint venture scenarios

   • After Jogee, secondary liability requires intent to assist or encourage. In mutual shootings, consider whether D is a principal, whether there was shared intent to cause serious harm, and whether causation links D’s conduct to the death (Gnango remains relevant).

Charging and case management tips:

• Use alternative counts where appropriate:
  • Count 1: Offence against A (attempted offence if incomplete).
  • Count 2: Offence against B relying on transferred malice.
  • In homicide cases, consider murder and manslaughter in the alternative.
• Prosecution should gather clear evidence of D’s purpose (messages, threats, weapon choice, targeting).
• Defence should probe intent, foreseeability, causation breaks, and any available defence (self-defence, accident).
• For jury directions, keep it simple:
  • If the jury find D intended to commit offence X against A and by the same act committed offence X against B, they may treat the intent as directed at B.

Common pitfalls:

• Treating transferred malice as a cure-all. It is not.
• Ignoring property/person distinctions.
• Overlooking Jogee in group cases.
• Skipping causation analysis.
• Forgetting that defences can apply to the transferred scenario.

Revision pointers:

• Learn Latimer and Pembliton as the clean pair showing operation and limit.
• Remember AG’s Ref (No 3 of 1994) for the “no double transfer” point.
• Use Mitchell for unlawful act manslaughter chains.
• Use Gnango carefully for mutual shootings.

Summary Checklist

• Definition: Mens rea can transfer from the intended victim to the actual victim for the same kind of offence.
• Same kind rule: Works person-to-person; not person-to-property (Pembliton).
• No double transfer: AG’s Ref (No 3 of 1994).
• Mens rea match: D must have the mental element required for the completed offence against the actual victim.
• Causation: Prove factual and legal causation; consider thin skull and intervening acts.
• Defences: Lawful force/self-defence may carry across to the unintended victim.
• Key cases:
  • Latimer: transfer within offences against the person.
  • Pembliton: limit where property is involved.
  • Mitchell: unlawful act manslaughter with unintended victim.
  • Gnango: mutual shooting and third-party death; consider post-Jogee approach.
• Practice steps: identify intent, match offence type, check causation, consider defences, select charges carefully.

Quick Reference