R v Pembliton (1874) LR 2 CCR 119
Transferred Malice in cases of damage to property
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.
Could the doctrine of transferred malice operate in this case to transfer the malice to hurt another person into malice to damage property?
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).
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