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A-G Ref NO. 3 OF 1994 [ 1997 ] 3 All ER 936

The defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-24 weeks pregnant. 17 days after the incident the woman went into premature labour and gave birth to a live baby. The baby died 121 days later due to the premature birth. The defendant was charged with wounding and GBH on the mother and convicted for which he received a sentence of 4 years. On the death of the baby he was also charged with murder and manslaughter. The trial judge held that he could not be convicted of murder or manslaughter since at the time of the attack the foetus was not in law classed as a human being and thus the mens rea aimed at the mother could not be transferred to the foetus as it would constitute a different offence. The Attorney General referred the following point of law:

"1.1 Subject to the proof by the prosecution of the requisite intent in either case: whether the crimes of murder or manslaughter can be committed where unlawful injury is deliberately inflicted: 

(i) to a child in utero 

(ii) to a mother carrying a child in utero 

where the child is subsequently born alive, enjoys an existence independent of the mother, thereafter dies and the injuries inflicted while in utero either caused or made a substantial contribution to the death. 

"1.2 Whether the fact that the death of the child is caused solely as a consequence of injury to the mother rather than as a consequence of direct injury to the foetus can negative any liability for murder or manslaughter in the circumstances set out in question 1.1."

The Court of Appeal reversed the decision in relation to murder. The defendant appealed to the House of Lords


The appellant's actions could not amount to murder for the reasons given by the trial judge. However, his actions could amount to constructive manslaughter. There was no requirement that the foetus be classed as a human being provided causation was proved. The attack on the mother was an unlawful act which caused the death of the baby. There is no requirement under constructive manslaughter that the unlawful act is aimed at the actual victim or that the unlawful act was directed at a human being.
Back to lecture outline on murder or constructive manslaughter in criminal law