Get Legally Speaking With Hatti Suvari
Accidentally Killing On Purpose. Transferred Malice.
Criminal Law is fascinating and there are many areas of it that we have either never heard of, or that we don’t understand. Transferred Malice, referring to ‘Accidentally Killing On Purpose’ is a topic which most us would have never come across, or the title alone doesn’t seem to even make sense! Do not miss out on listening to this straight-talking episode, in which seasoned criminal Barrister Jeremy Rosenberg and Hatti Suvari bring you interesting facts and thought provoking conversation, explaining what is meant by Transferred Malice; discussing examples of how this event could occur, with a light touch; as always in plain and simple English.
- Broadcast on:
- 23 Sep 2024
- Audio Format:
- other
Hello and welcome back to our podcast at Get Legally Speaking. We are proud to be the UK's number one legal consumer podcast. Our legal conversation today will be on accidentally killing on purpose, Transferred Malice. I am here with Barrisa Jeremy Rosenberg from 23 Essex Street Chambers in London. Jeremy is regularly instructed in serious and complex matters and he has a reputation for being tenacious, fearless and leaving no stone unturned, bringing detailed preparation and thoughtful and persuasive arguments to the courtroom. Jeremy has a vast amount of experience in dealing with highly emotive and challenging environments and is well regarded for bringing a calming and professional approach, engaging with defendants and witnesses alike. Jeremy, thank you so much for joining me today. My pleasure. Good morning, Hatsey. How are you? Good morning. I'm really well. Now that we've sorted our technical issues out, I think we're ready to go, don't you think? Yeah. Right. Criminal law is fascinating and there are many areas of it that we have either never heard of or that we don't understand. Transferred Malice referring to accidentally killing on purpose is one of these areas which most of us would have never come across. But I promise you, it is fascinating to know about. Today, Jeremy and I will talk about and explain all you need to know about this area of law as always in plain and simple English. Jeremy, let's start by talking about what transferred Malice in the simplest terms actually means. Of course, so transferred Malice is now normally referred to as transferred mens rea, mens rea is the mental element of the crime that's alleged. And the principle is that if you intend to hurt someone or intend to kill someone and you by accident hurt or kill somebody else, you've transferred your mens rea, your intention, your malice to the other person. So in simplest terms, if I try to hurt you, Hattie, and I hit again. Yes. Yes. And I pull the trigger and shoot at you. And I miss and I hit somebody else. I am then liable for the injury I caused to the other person, even though I never meant to hit that person. Yes. So it's when a person intends to kill or harm somebody else, but accidentally really ends up causing harm or killing someone else in debt instead. Yes. Exactly. Yes. It comes under the equipment for those that are interested. I think it's the Criminal Justice Act 2003, Section 1421. Did I say that correctly? Yeah, I think so. Something like that. So provided that the outcome or harm is the same kind as was intended to the person who the defendant, if we're talking about somebody here, was actually going for them. That's where we can talk about transferred, madness, and accidentally ending up killing or causing harm to somebody else. So under this principle, can you be found guilty for murder, even if you didn't intend to kill or seriously injure the person that ended up being injured? I mean, my mind, I'd say for perpetrator, you know, has killed anybody, then surely, whether unintentionally or not, they should be charged for murder. What's the drill there? Yes. So with murder, of course, the most serious of crimes, you have to show through beyond reasonable doubt that the person intended to either kill or cause serious physical harm to the person that died. And in the example I just gave you if I shoot at you and miss, then I haven't intended to cause really serious harm or kill the person that is in fact killed or murdered. But under this principle, transferred malice, transferred men's raider, even though I didn't intend to kill the person that ultimately died, I would be found guilty if I had intended to kill or seriously injure somebody else. That's interesting, that's interesting, because that is, because then we go into the realms of sort of manslaughter when somebody doesn't intend to kill, but you know, that the person ends up dying. But then we transferred malice, what we're saying is this principle comes into place to say, yes, it's going to be considered as murder, even though you intended to kill somebody else and not the person that died. Yes. So and the transferred man less men's raider works in the same way for a manslaughter as well. And obviously manslaughter is where you unlawfully, you commit an unlawful act. And in the course of that, that you at least foresee some harm to be caused to another. So for example, if you're driving recklessly and you ended up killing somebody, and you at least intended them some harm, it doesn't have to be really serious. And let's say I drove my car towards you. And I just wanted to clip you just to teach you a lesson, let's say, not intending to kill your cause really serious harm, but I make a mistake and everyone accepts I've made a mistake and you end up dying from it. You'd be guilty of manslaughter then. Interesting. Or perhaps an easier example is I go to punch somebody. So I've intended them some harm. Yes, not really serious harm. And the one blow ends up, the one punch ends up killing that person, you'd be guilty of something called unlawful manslaughter. There's quite a few different types of manslaughter. That's the most basic and simplest terms. Yes. And that can be so if I go to punch you, you duck and I punch the person behind you, and they die, I'd be guilty of their manslaughter via the legal principle of transferred malice meant to be interesting. So are we saying that if a person did not intend to murder the person, okay, that died so that they aimed for one person, it ended up killing another, then their defence could argue a lesser charge or a total defence altogether. No, so the law essentially says you have to take those two separate people effectively as one. So it's what your intention was for the original person. So you'd have a defence in any other way if you were acting in self defence or you did it for murder, you didn't intend to cause them really serious harm or intend to kill them. Like I only meant to punch them, that would be a defence to murder that you'd be guilty to manslaughter. And then the fact that the men's rare, the malice that the intention transfers over, it would be the same principles. Interesting. Okay. And what about in cases where someone can be said to be defending themselves, but either they or someone else they were fighting with, kill someone else? Well, again, in a simple explanation of if you come towards me with a knife, and I defend myself and I do no more than what's reasonably necessary in the circumstances, i.e. self defence, lawful self defence, and you end up dying, or someone else ends up dying. Let's say I push you out the way and you knock someone off a bridge and they fall 20 metres to their death, and I pushed you in self defence, then the death of the other person would be in self defence as well. Well, that's really interesting, isn't it? And that's a great example, actually. So if you're trying to defend yourself, you've pushed somebody, they ended up pushing someone else who's fallen to their death, or God forbid, gotten run over and died, then your defence to both of those would be something you could argue. Yes, now there are, as ever, with criminal law, there are exceptions and complications to the law. With the law, with the law, your exceptions and complications come as standard. Yes, I always say every rule has an exception to it in almost every circumstance. Don't allow your children to say that to you at any point, will you now? Yeah, sorry, go ahead. But in these circumstances, there's the outer reaches, the outer limits of this type of law that relates to Chancellor Malice, and in fact, has been criticised quite strongly in the court of appeal on several occasions, but is still good law. And there are some recent examples. One is quite an infamous case or famous case in the fact that there were two men who consensually engaged in a shootout in a car park, and they were able to respond. I thought that was just the clean Eastwood films and the John Wayne films that I thought, was this recent? When was this, or was it very, very long ago? No, 2011 was the case. It was just before then, so it's not so long ago. We're going to have a shootout, you and me, we're both going along to do that. That's what they said. Yeah, it's not so much. But how, boy, meet me outside, and we'll have a... Ten steps, and then, yeah, right. Okay. Yeah, it's more, they agreed to meet for a fight. They both went armed with guns, and they both drew those guns, and they engaged in a tip for tattooing at each other. So one man is described in the case as bandana man, and the other man is the defendant in the case. They don't find or they're unable to identify bandana man, but they are able to show that bandana man's gun, because they tracked the bullet down to his gun, was responsible for killing an innocent bystander who happened to be walking through the car park at the time of the shooting. Sadly, it was a nurse as well. It was worse. And in those circumstances, the defendant who they did find, the other man, was charged and prosecuted for the murder of the nurse who was walking through the car park. That's very interesting. They didn't find his, the other guy who he agreed to meet. They only found the guy, the one guy, but the other guy's gun killed the nurse, and they were charging the guy that didn't actually pull the gun at all. Yeah, the defendant, he shot towards bandana man, but his bullets did not kill or injure this nurse that was walking through the car park. That's interesting. Yeah, interesting. And the court of appeal ruled that it was correct to charge, prosecute and convict the defendant of murder, because he engaged in an unlawful act with the other. And different judges, it's quite a controversial ruling because several of the judges disagreed about the route to which you get to, to say that it was murder, they would agree it was murder. But that is quite harsh, isn't it? I mean, and I understand now why you're saying it's controversial, because the person that was convicted of the murder of this lady wasn't the person that pulled the trigger on the gun at all. It was the other person he went to meet who was in the shootout with him. And I have to say to a lay person like myself, that seems extraordinary, that he got convicted with that under the principle that, you know, he did go there with intent to harm another person. And I think that's how it's falling into this topic of transferred malice, transferred men's rea, but ultimately another lady died. Okay. Yes, exactly. Yeah, I get it. So let's talk about transferred malice being referred to as rough justice, because some say that it's pointless and useful legal fiction actually is a term that I've seen. But have you seen many cases in which prosecutors are successful of prosecuting someone with transferred malice? Yes, it's quite a common tool to prosecute people with. And so, as I said, the example where I go to hurt you and you duck and I hurt somebody else, the standard traditional conventional roots, that's very common because, of course, that's right, isn't it? That if I don't, we don't see it in the news, though, I've never heard that term. I mean, obviously you have your criminal barris, but I've never heard the term transferred malice. I've never even read a story, which says, oh, this person died instead of that person, you know, they've never, that the media, let me say all the papers have never actually explained it in this way, ever. So is it quite common? Yes, it's bad. I can't remember the name of the young man, but you might remember that the little boy in Liverpool who was shot in a shootout between gang members and that the bullet went astray and hit the little boy and killed him. And I think there's another example very similar to that in London in the last 10 or 20 years where a little girl was in a restaurant or a takeaway with her mum, there was a shootout outside and a stray bullet from the shootout hit the little girl and killed her. And these men were found and prosecuted successfully for the murder of the children, because even though they were never the intended target, it was obviously an accident. But under this principle, they're guilty of murder. And even with malice, Jeremy, there's three types of malice, the three model penal code, I think it is purposely, knowingly or recklessly causing harm to a human life with intent to kill or intent to cause serious bodily injury or an depraved heart is another one that I've come across. So I guess if you go out and you purposely, you knowingly or recklessly intend to cause harm or kill somebody, then you're not really going to get away with saying, well, I didn't intend to cause harm generally. It's quite interesting. Just to clarify, obviously, malice is an old English term in modern law, particularly for murder, for example, because different, as we discussed, difference between murder and manslaughter, for murder, you have to have the intention, whether it's the person you were aiming at or the person you accidentally hurt, you have to have the intention to cause really serious harm or to kill. So you can't be convicted of murder if you recklessly hurt somebody. So we're talking about manslaughter when we're saying recklessly causing harm to human life, where you didn't intend to kill, but it happened. Again, manslaughter isn't necessarily reckless, it's that you would have foreseen that the harm would happen. I mean, they're often interchangeable, but you're transferring different terminology from old language. But the principles are still the same, and you can have transferred malice when even at lower degrees of offending, where the offense is committed recklessly. It is such an interesting area of law, where the manslaughter, we've done podcasts, actually murder versus manslaughter. And when you mentioned transferred malice, and we agreed to do this podcast, I said, what's that? And as you started to explain it to me, I thought, that is so fascinating. And then when I started researching a topic, I thought, Oh my God, but it's, it's, I mean, do you agree that it's a pointless and, and, and, or, or useless bit of law, transferred, mains, rare, transferred malice? Or would you say, actually, I think it serves a good purpose. And it feels that gap that actually could be missed out, where people are not charged properly for wrongdoing. Well, I think that's a wider debate. For example, in America, you have different degrees of murder. So you have to have degrees. And in, in our country, in our jurisdiction, you don't, you, you just have murder. And then you are at the behest of the sentencing judge once you're convicted and factors like it was on accident, accidental death of the intended person taken into account in where to set the sentence. But some people might take the view, actually, the law is just imprecise in that area. And it should have better clarity. There should be different types of murder. And for example, causing someone accidentally to die when you intended somebody else's because time, you might think is an area that should be more specifically set out. And when you get into the outer limits of this principle of law, for example, it, it, it, the law has said if you're in the course of an activity where you have the intention, so I'm going to try and kill you. And during the same act, I say I'm running towards you with a knife, I'm running towards you to try and stab you and I'm running to somebody else with that knife, then it's something that's very much up for debate whether or not through this principle, you'd then be guilty of the person you run into accidentally, even though you never meant at all to hurt that person. I can just hear the arguments, you know, flying backward and forth. And I think that for me, again, as I say, as a lay person to criminal law, I say that it could feel a gap. It does feel a gap. That's how it comes across to me. Because I think if you head out to hurt, harm somebody and somebody else gets harmed in the process, you can't then say, Oh, well, sorry, you know, you died. Didn't mean to kill that person. I meant to kill the other person or I was many, many to cause really serious harm to someone else. I think if you're going out to cause any harm, you know, that's what the law is there for, to stop people doing things like that. But Jeremy, that's what we've got time for. No problem. I'm happy to help. Thank you. Thank you very much for your time today. I find that I just find it super interesting and fascinating and I hope our listeners did too. Thanks, Hattie. Speak to you soon. Yes. And what I'll say to our listeners is don't forget to click and subscribe to our podcasts. We have over 160 to choose from. You can find us on TikTok, Instagram, Facebook, LinkedIn and YouTube by searching get legally speaking. visit our website at getlegallyspeaking.com. Thank you for listening.