R v Pembliton (1874) LR 2 CCR 119
Transferred Malice in cases of damage to property
Facts
The defendant was ejected from a pub and became engaged in a physical altercation in the street. This escalated until he threw a large stone at his opponents. His throw was inaccurate however and instead of hitting then, he hit a nearby window, breaking it and causing over £5 worth of damage. The defendant was prosecuted under section 51 of the Malicious Damage Act 1861 c.97. This stated that:
“Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever ….. the damage, injury, or spoil being to an amount exceeding five pounds, shall be guilty of a misdemeanour” (MDA 1861, s.51).
The defendant was convicted even though the jury acknowledged that he had no intention of breaking the window and causing damage.
Issues
Could the doctrine of transferred malice operate in this case to transfer the malice to hurt another person into malice to damage property?
Decision/Outcome
The court held that it was not possible to transfer the malice to strike a person to the situation of maliciously damaging property. The court viewed the term “maliciously” to generally require that intention be proved, although it was allowed that reckless disregard for risk which the defendant had contemplated could suffice. As this was in any event not the case, the conviction was quashed.
“… it seems to me that what is intended by the statute is a wilful doing of an intentional act.” (Lord Coleridge CJ, p.122).
Updated 20 March 2026
This case note accurately states the facts, issues, and outcome of R v Pembliton (1874) LR 2 CCR 119. The core legal principle — that the doctrine of transferred malice cannot operate to transfer intent to harm a person into intent to damage property, because the two offences are of a different kind — remains good law and is still cited in criminal law teaching and scholarship.
One contextual point worth noting: the Malicious Damage Act 1861, under which Pembliton was charged, has been largely repealed and replaced by the Criminal Damage Act 1971. The 1971 Act governs criminal damage in England and Wales today. Under section 1 of that Act, a person must act without lawful excuse and either intend to destroy or damage property, or be reckless as to whether property would be destroyed or damaged. The principle from Pembliton — that transferred malice will not apply across offences of a different nature — remains applicable in the context of the 1971 Act. The article is historically accurate but readers should be aware that the statutory framework it references is no longer in force.
