Transferred malice

This is a concept that can sometimes arise in the context of mens rea.

The concept recognises that the defendant cannot escape liability by merely showing that the intended harm was directed against a different person than the actual victim.

The principle can be illustrated with the example of a perpetrator aiming a blow at a person with the necessary mens rea.  Should the perpetrator actually miss and strike another person he or she cannot escape liability by trying to argue that they did not intend to harm the victim but someone else instead. In Latimer 1886 the defendant, a soldier, retaliated after he had been attacked by a customer and hit out at his attacker. Latimer used a belt to hit the other person but the belt rebounded off the original victim and hit a woman causing facial injuries. The defendant was convicted. The mens rea of the original attack was transferred to the second and no 'further' or 'secondary' mens rea was required.

The concept may be relevant where it might be difficult to show that the defendant had any ill will against any specific victim.  This might arise where a terrorist plants a bomb in a busy bus terminal or plants a bomb in a pub when its full of customers.  The requisite mens rea is imputed so as to relate to the victims actually harmed.

Care must be taken to ensure that like offences and forms of mens rea are being considered.  A defendant intending to smash a shop window may have the appropriate mens rea for criminal damage but should he miss and hit a bystander, it does not follow that the necessary mens rea is deemed to be present for an assault.  In Pembleton 1874 the defendant intended to throw a stone at a mob of people but unintentionally broke a window instead.  The court determined that he could not be convicted of the criminal damage offence - the doctrine of transferred malice could not be applied. The principle being that, just because someone had the necessary mens rea for one offence, it cannot be assumed that they had the mens rea for another type of offence. To deduce that someone had the mens rea of an assault is one thing, but to then use that to show that the defendant also had the mens rea for criminal damage seems to be a step too far.

Victims of 'transferred malice' - BBC News


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