Legal Case Summary
A-G’s Ref (No 3 of 1994) [1997] 3 WLR 421
Child born alive then dying after pregnant mother stabbed – mens rea insufficient for murder but sufficient for manslaughter
Facts
B stabbed his pregnant girlfriend, who then prematurely gave birth to S. S was wounded in the stabbing and died after 121 days after being born prematurely. B was charged with murder of S, but was acquitted after it was held that he could not in law be convicted of murder or manslaughter as a result of harm done to a child in utero, and that there could be no transferred malice of the intent to harm from the mother to the foetus.
Issues
Under the Criminal Justice Act 1972 section 36 the Attorney General (AG) referred the case to the House of Lords for a ruling on two issues, pertaining to the mens rea required by B to be guilty of the child’s murder or manslaughter. The AG firstly asked whether unlawful injury deliberately inflicted on a mother carrying a child in utero could constitute murder or manslaughter when the child was born but subsequently died and the injuries inflicted caused or contributed to death. Secondly, the AG asked whether death caused as a result of injury directed not to the foetus but to the mother negatived liability for murder or manslaughter.
Decision / Outcome
B could be convicted of manslaughter but not of murder. B did not have the mens rea for murder and the concept of transferred malice was inapplicable to the circumstances of this case. However, B satisfied the three elements of unlawful act manslaughter: (1) he had the sufficient mens rea of intention to do an unlawful and dangerous act of stabbing the mother, (2) all reasonable people would recognise the risk that some harm would result, and (3) death was caused by the act. The fact that the injury was not directed at the person who died as a result did not negate liability for manslaughter.
Updated 19 March 2026
This case summary accurately reflects the decision of the House of Lords in A-G’s Ref (No 3 of 1994) [1997] 3 WLR 421. The core legal principles remain good law. The House of Lords confirmed that transferred malice does not apply so as to support a murder conviction in these circumstances, but that unlawful act manslaughter can be established where the defendant intended to commit an unlawful and dangerous act against the mother, and the child was subsequently born alive before dying from the injuries. There have been no subsequent statutory changes or leading appellate decisions that overrule or materially qualify this ruling. The article correctly cites the Criminal Justice Act 1972 s.36 as the reference mechanism, though readers should note that this provision is now found in the Criminal Justice Act 1972 s.36 as amended and the broader reference procedure is preserved under that Act. The article remains broadly accurate for study purposes.
