Criminal: Transferred Malice

Transferred Malice

A defendant can be liable for an offence if they have the necessary mens rea but commits the actus reus even if the victim differs from the one that was intended. The mens rea can be transferred from the intended victim to the actual victim but cannot be transferred from person to property and vice versa.

R v Latimer [1886]: The defendant aimed a blow with his belt on a fellow drinker as he had previously been attacked by him. He missed the intended victim and hit the woman behind. Held, the malice can be transferred from the intended victim to the actual victim.

R v Mitchell [1983]: In the post office queue there was an argument between two men. One pushed the other who fell into an elderly lady, she was injured and developed deep vein thrombosis, and she later died as a result of this. Held, transferred malice can apply from the intended victim to the actual victim.

R v Pembilton [1874]: Involved a fight outside a pub. The defendant threw a stone in order to cause injury. The stone missed the intended victim but went through a window. The pub tried to argue transferred malice. Held, malice cannot be transferred from intention to cause physical harm to property damage.

Attorney Generals Reference No 3 [1994]: A man stabbed his pregnant girlfriend and the foetus died. He was charged with GBH to the foetus. Held, the malice could only be transferred to a living creature and a foetus is not separate to its mother.