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Pre-Natal Injury, Homicide And The Draft Criminal Code

Published online by Cambridge University Press:  16 January 2009

Jennifer Temkin
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If a baby is born alive only to die some time afterwards from pre-natal injury, for what crime is the perpetrator liable? Coke considered that if the injury was caused after quickening by an attempted abortion or by a violent assault upon a pregnant woman, the answer to this question was murder, even if the defendant did not intend or foresee death or serious injury to a fully-born child. The purpose of this article is to evaluate Coke's rule together with the authority in support of it and to consider whether, if it still exists today, it ought to be incorporated in the proposed Criminal Code.

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Articles
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The Cambridge Law Journal , Volume 45 , Issue 3 , November 1986 , pp. 414 - 429
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Copyright © Cambridge Law Journal and Contributors 1986

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References

1 3 Co. Inst. 50.

2 See Law Commission, Codification of the Criminal Law: A Report to the Law Commission (1985) (Law Comm. No. 143).

3 Folio 121. Thorne's edition (1968) gives the following translation: “If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the foetus is already formed or quickened, especially if it is quickened, he commits homicide” (emphasis added). This suggests that Bracton considered that homicide was committed even before quickening. See also letter by V. Tunkel in The Times, 28 June, 1978.

4 Book I, c.23.

5 Y. B. Mich. I Ed. III, f.23, pi.18; 3 Lib. Ass. pl.2.

6 C.1501; B.L. MS Hargrave 87, folios 309—325v; Selden Soc. Vol. 94, p. 306. For an account of readings in the Inns of Court, see Selden Soc. Vol. 94, pp. 133–135.

7 See Selden Soc. Vol. 94, p. 306, note 7.

8 3 Co. Inst. 50.

9 Ibid.

10 3 Inst. 56.

11 De Pace Regis, Homicide no. 39.

12 See note 5, supra.

13 Staund., P.C. 21.

14 Lambard, Eirenarcha, Bk. 2, c. 7.

15 1 P.C. 433.

16 Archbold, Criminal Pleading. Evidence and Practice (42nd ed.. 1985). para. 20–11.

17 1 P. C., c. 31, s. 16.

18 Ibid.

19 Viz. Rashi and Abraham Ibn Ezra, who wrote in the eleventh and twelfth centuries respectively. See A. Cohen (ed.), The Soncino Chumash (1956).

20 Blackstone, Comm. VI, 198.

21 1 Pleas of the Crown (1803), s.14, p.227–228.

22 R. v. Keate (1697) Comb. 406.

23 Crown Law (3rd ed., 1762), p. 258.

24 1 P.C., Ch. 31, ss. 40–62.

25 1 Pleas of the Crown (1803) s.2, p. 215.

26 Lord Ellenborough's Act, 43 Geo. III, c. 58.

27 Offences Against the Person Act 1837, s.6.

28 (1848) 2 Cox C.C. 500.

29 At p. 502.

30 At p. 503.

31 See note 27, supra.

32 This is approximately the stage at which quickening takes place. For the implications of this extension, see infra, under the heading, “The rule is unjust.”

33 (1832) 1 Mood C.C. 346. See also R. v. Knights 2 F. & F. 46, in which it was unsuccessfully argued that a pregnant woman should be guilty of manslaughter if she willfully omitted to take precautions before the birth of her child to ensure its safe delivery and thus caused its death after live birth. See also R. v. Izod 20 Cox C.C. 690 and the discussion by D. Seaborne Davies in “Child-Killing in English Law” (1937) 1 M.L.R. 203, pp. 208–211.

34 [1963] H.K.L.R. 349.

35 Note 33, supra.

36 Note 28, supra.

37 172 E.R. 1089; 5 Car. & P. 537.

38 There was, inter alia, evidence of provocation.

39 The trial judge's ruling is reported at [1963] H.K.L.R. 226.

40 [1963] H.K.L.R. at p. 353.

41 At p. 354. Since at the time of the defendant's action the victim was a foetus, the decision slightly extends the doctrine of transferred malice. For general criticism of the doctrine, see Ashworth, A., “Transferred Malice and Punishment for Unforeseen Consequences” in Glazebrook, P. R. (ed.), Reshaping the Criminal Law (1978).Google Scholar

42 See, e.g., Dickens, B. M., Abortion and the Law (1966), pp. 53–54Google Scholar; Williams, G., Textbook of Criminal Law (2nd ed. 1983). p. 289.Google Scholar

43 See further on this, G. Williams, ibid., at p. 277.

44 Ibid.

45 It was at one time considered that after the abolition of the felony murder rule, felonies leading to death would automatically result in liability for constructive manslaughter. Thus, if Coke's rule disappeared with the felony murder rule, it might formerly have been argued that defendants could nonetheless be held guilty of manslaughter. But the doctrine of constructive manslaughter has evolved considerably over the past 30 years. See text accompanying note 47, infra.

46 For the view that it is, see texts mentioned in note 42, supra. See also R.v. West, note 28, supra, at p. 501.

47 R. v. Church [1966] 1 O.B. 59: D.P.P. v. Newbury & Jones [1977] A.C. 500.

48 See on this Smith and Hogan, Criminal Law (5th ed., 1983), p. 319.

49 R. v. Pike [1961] Crim. L.R. 114.

50 R. v. Stone and Dobinson [1977] 2 W.L.R. 169.

51 (1985) 82 Cr. App. R. 18. P. C. Sec also R. v. Goodfellow [1986] Crim. L.R. 468.

52 [1982] A.C. 341.

53 [1982] A.C. 510.

54 D.P.P. v. Maloney [1985] A.C. 905; R. v. Hancock [1986] A.C. 455; R. v. Nedrick [1986] 1 W.L.R. 1025.

55 See discussion of Kwok Chak Ming v. The Queen, note 34, supra.

56 Williams, op. cit., note 42, supra, p. 289.

57 See on this S. B. Atkinson, “Life, Birth and Live-birth” (1904) 20 L.Q.R. 134; Williams, G., The Sanctity of Life and the Criminal Law (1958), pp. 19–23.Google Scholar

58 G. Williams, op. cit., note 42, supra.

59 Ibid, at p. 304. The fact that the foetus had not reached the stage of quickening would now, of course, be irrelevant. For a different meaning of “born alive,” see V. Tunkel, “Late Abortions: A Reply” [1985] Crim. L.R. 133, 135–136.

60 Abortion Act 1967, s.l.

61 Liability under s.58 will not ensue where the requirements of the Abortion Act 1967 have been fulfilled. Thus, doctors would be protected in such cases regardless of whether or not death occurred after live birth if Coke's rule were abolished, provided that they lack the mens rea for murder or manslaughter. They might, however, be guilty of attempted child destruction in some cases.

62 S.1.

63 The defendant is likely to have been grossly negligent or reckless as to causing death or injury to the born child and thus be liable for manslaughter. Cf. R. v. Pike, note 49, supra; Kong Cheuk Kwan v. The Queen, note 51, supra.

64 He will be guilty of manslaughter where, for example, he realises that there was a risk of injury to the child if it was born alive. See note 63, supra.

65 Professor Williams has argued that where the accused is unaware of the victim's presence, transferred malice should not render the defendant liable, save where he is negligent with respect to the harm done. See G. Williams, Criminal Law: The General Pan (2nd ed., 1961), s.48. The decision in Larimer (1886) 17 Q.B.D. 359 suggests, however, that negligence is unnecessary.

66 See R. v. Conner(1836) 7 C. & P. 438,173 E.R. 194 and the discussion of Kwok Chak Ming v. The Queen, note 34, supra.

67 Law Commission Report, op. cit., note 2, supra, p. 202.

68 Ibid.

69 At p. 205.

70 Indeed, even if it were considered that Coke's rule no longer existed, it would still have been necessary to indicate how the law was to operate in cases where pre-natal injury caused death after live birth since the law would otherwise remain unclear.

71 At p. 172 and see also paras. 3.8–3.9.

72 Op. cit., note 2, supra.

73 Law Commission Report, op. cit., note 2, supra, para. 15.3.

74 Criminal Law Revision Committee, Fourteenth Report, Offences Against the Person (1980), Cmnd. 7844.

75 Law Commission Report, op. cit., note 2, supra, para. 1.11.

76 Para. 1.12.

77 The Criminal Law Revision Committee took the view that the offence of manslaughter “should not be a lottery.” See Report on Offences Against the Person, op. cit., note 74, supra, para. 120. Its proposals on manslaughter are incorporated in the Code. See text at note 68, supra. The same principle should apply to the law of murder.

78 Law Commission Report, op. cit., note 2, supra, p. 205.

79 Op. cit., para. 15.37.

80 Report on Offences Against the Person, op. cit., note 74, supra, para. 40.

81 Glanville, Williams, Textbook of Criminal Law (1st ed., 1978), p. 325, note 4.Google Scholar

82 Her Majesty's Commissioners on Criminal Law, Fourth Report (1839), p. 32. Article 7 of the Draft Code provides: “A child in the womb is not a subject of homicide.… “Article 8 states: “It is otherwise if a child die within a year and a day after birth of any bodily injury inflicted upon such child whilst it was yet in the womb.” No source for the italicised proposition is provided in the commentary to this Article.

83 The Draft Code of 1879, which purported to set out the criminal law as it existed at that time, does not appear to have contained such a proposition. See Criminal Code Bill Commission. Report of the Royal Commission on the Law Relating to Indictable Offences (1879). C.2345. There is no trace of it in the writings of such authorities as Hawkins. Blackstone and East, nor in modern times in leading texts such as Halsbury's Laws of England (4th ed.); Stephen's Digest of the Criminal Law (9th ed., 1950); Kenny's Outlines of Criminal Low (17th ed., 1958); or Russell on Crime (12th ed., 1964). Smith and Hogan merely state, in a footnote, “The Criminal Law Revision Committee recommends that, in the case of pre-natal injury, time should run from the date of birth”: Criminal Law (5th ed., 1983), p. 276, note 15. B. M. Dickens states: “It will presumably be from the moment of achieving an independent existence that the period of one year and one day will commence to run, to see if the offence is murder”: op. Cit., note 42, supra, p. 54. He does not suggest any authority to support this presumption.

84 Since the mens rea for manslaughter is defined more narrowly under s.57 of the Code than it is under present law, it will be more difficult to establish manslaughter under the Code. This could make a difference in cases where the defendant stabs or otherwise violently assaults a pregnant woman and thereby causes the death of her baby after it is born alive. For example, if he is unaware of her pregnancy and did not intend her serious injury or was unaware of the risk of so doing, he could not be guilty of manslaughter through the doctrine of transferred malice which is preserved by s.28 of the Code. But he will be guilty in any case of unlawful wounding or assault occasioning actual bodily harm. In the rare case where an attempt is made to kill the baby when it is partially extruded from the mother, the prosecution should be able to establish that the defendant intended or was reckless as to death or serious injury occurring to a live baby.

85 Law Commission Report, op. cit., note 2, supra, p. 205. As presently worded, el. 70 raises difficulties. Is a defendant guilty of the offence where he deliberately takes steps to injure the foetus and thereby produces a termination of the pregnancy, if the baby survives the experience? Are doctors who decide to induce the birth of a child for medical reasons before the pregnancy has reached full term to be guilty under el. 70 save where they comply with the Abortion Act 1967? Would the same apply to doctors who induce a birth on a Friday to give themselves a free weekend? The problem lies in the use of the phrase “termination of pregnancy” which could cover any termination, not merely an abortion.

86 Cl. 53 sets out the crime of attempt. See Law Commission Report, op. cit., note 2, supra, p. 200. It might be expedient to charge murder in the alternative in case the defendant claims that he intended the child to be born alive and then die, which might otherwise result in his acquittal.

87 It would also be useful for the Code to provide definitions of the words “person” and “another” which make it clear that a foetus is not to be regarded as either.