Limit of Transfer of Malice

The Limits of Transferred Malice
Shachar Eldar*
Abstract: The article explores two recurring themes in the scholarly writings on ‘Transferred
malice’ the doctrine designed by Anglo-American law to allow full criminal responsibility
where the defendant caused harm to a different object than the one he had in mind, due to
either accident or mistake. First, in face of the diversity of views advocating the eradication
of transferred malice, the article searches for the provinces in which that doctrine should still
have relevance to our legal system. It is often assumed that malice cannot transfer amongst
different offences, which has led many scholars to conclude that the doctrine is superfluous.
The analysis here offered counters both assumption and conclusion alike, as well as the
common view that differentiates between the implications of accident and mistake. Second,
reflecting on the different criteria proposed to restrict the implementation of transferred
malice such as physical and immediate harm to the actual object, remoteness of the actual
harm from the harm intended, and foreseeability as to the actual harm the article provides an
analytical framework by which to assess these criteria and to determine which of them proves
more persuasive. The result is a notion of transferred malice that strikes a favorable balance
with the requirement of mens rea.
Key words: criminal law, criminal theory, culpability, mens rea, transferred malice
1. Introduction
As is often the case with legal and philosophical concepts that evoke countering intuitions,
transferred malice has not acquired a monolithic definition.1 Generally speaking, this term
* Ono Academic College, Kiryat Ono, Israel. E-mail: elder@ono.ac.il. The author wishes to thank the following
for commenting on the draft: the ‘Constitutional to Criminal Law’ workshop at Bar-Ilan University, Hadar
Dancig-Rosenberg, Tali Greenberg, Amiel Kestenbaum, Elkana Laist, Shai Lavi, Dana Pugach, Yoram Rabin,
Boaz Sangero, Shlomit Wallerstein, Sarah Zweig.
1
The term ‘transferred mens rea’ is perhaps more accurate, capturing the doctrine’s relevance to all forms of
subjective attitudes towards the object of the offence. I will however use the more common term ‘transferred
malice’.
Electronic copy
Electronic copy available
available at:
at:https://ssrn.com/abstract=2393858
http://ssrn.com/abstract=2393858
stands for the doctrine specifically designed by law to regulate situations in which the
defendant caused harm to a different object than the one he had in mind: he either miss-
aimed, harming object P rather than intended object O, or he harmed object P mistakenly
believing it to be object O.2 In these event-types, transferred malice provides a mechanism by
which to hold the defendant accountable for harming the actual object. The defendant’s mens
rea is legally ‘transferred’ from the one object to the other, allowing the courts to treat the
defendant as though he had intended to harm the object which he actually harmed. This
mechanism is often considered a fiction of law,3 coalescing the actus reus in respect to the
actual object with the mens rea towards the intended or foreseen object to form a
consummated offence. But fictitious though it may be, the doctrine of transferred malice has
a strong hold on Anglo-American law.4
The central tension underlying the doctrine is between the logic of transferred malice
and its intuitive appeal and the requirement that mens rea concur with all the elements of the
offence.5 Countering schemas have been suggested to resolve this conflict of intuitions.
2
The term ‘harm’ is used broadly, as transferred malice applies to offences conditioned on the occurrence of
harm as well as to offences based on conduct, such as common assault. Thus, where D intended to assault O but
ended up assaulting P, his intent may be transferred by law to form his responsibility for assault. The distinction
between bad aim and mistaken identity is parallel to the distinction between accident and mistake in JL Austin,
‘A Plea for Excuses’ in Herbert Morris (ed), Freedom and Responsibility: Readings in Philosophy and Law
(Stanford University Press 1961).
3
Glanville Williams, Criminal Law: The General Part (2nd edn, Stevens & Sons 1961) 126: ‘His malice (ie his
intention) is by a legal fiction transferred from the one object to the other. The defendant is then treated for legal
purposes as though he had intended to hit the object that he did hit, though in fact he did not have the intent, nor
even was reckless as to it.’ See also Wayne R LaFave and Austin W Scott, Jr, Substantive Criminal Law (West
Publishing 1986) 399; Anthony M Dillof, ‘Transferred Intent: An Inquiry into the Nature of Criminal
Culpability’ (1998) 1 Buffalo Crim L Rev 501, 506.
4
Transferred malice is part of the main proposals for a general part of the criminal law. In the Draft Criminal
Code Bill, s 23(1), the doctrine is stated as follows: ‘In determining whether a person is guilty of an offence, his
intention to cause, or his recklessness whether he causes, a result in relation to a person or thing capable of
being the victim or subject-matter of the offence shall be treated as an intention to cause or, as the case may be,
recklessness whether he causes that result in relation to any other person or thing affected by his conduct.’ Law
Commission, A Criminal Code for England and Wales (Law Com No 177, 1989) vol 1, 53. According to the
American Model Penal Code, mens rea is established if ‘the actual result differs from that designed, or
contemplated, as the case may be, only in the respect that a different person or different property is injured or
affected’. See Model Penal Code s 2.03(2)(a) (American Law Institute, 1962).
5
Also known as the ‘correspondence principle’, echoed in Law Com 177 (n 4) 52 (Draft Criminal Code Bill, s
20(1)): ‘Every offence requires a fault element of recklessness with respect to each of its elements other than
fault elements, unless otherwise provided.’ For appraisal and critique of the principle of correspondence see
Jeremy Horder, ‘A Critique of the Correspondence Principle in Criminal Law’ [1995] Crim L Rev 759; Barry
Mitchell, ‘In Defence of a Principle of Correspondence’ [1999] Crim L Rev 195.
Electronic copy
Electronic copy available
available at:
at:https://ssrn.com/abstract=2393858
http://ssrn.com/abstract=2393858
Whilst some have argued for an uninhibited applicability of transferred malice to all cases
involving different victims of the same kind, others have called for a strict application of
mens rea to override transferred malice in all cases. Yet, searching for a middle ground,
different criteria have been suggested to demarcate cases where transferred malice would
apply from cases where a strict requirement of mens rea would prevail.6
In this article I analyze two reoccurring themes in the discourse surrounding
transferred malice by critically assessing the array of views and attitudes found in the relevant
academic literature. In part two of the article I tackle a variety of views favoring the abolition
of the doctrine of transferred malice. In order to determine whether or not transferred malice
is still relevant to our legal system, I offer an analysis of examples in which the doctrine may
prove helpful. The pattern that emerges from this exercise in inductive thinking sketches a
sphere for transferred malice in some instances of cross border between offences that differ
only in the culpability-based social harm that underlie them and where the alternative of
attempt liability is not afforded by law. It is often assumed that malice cannot transfer
amongst different offences, which has led many scholars to conclude that the doctrine is
superfluous. As part two counters both assumption and conclusion alike, the argument made
will by no means be uncontroversial. Part two also challenges the common view that
differentiates between the implications of bad aim events and cases of mistaken identity. It
will be shown by way of logic that the two should be treated equally.
In part three of the article I will ask which criterion best curtails the applicability of
the doctrine of transferred malice to reach a favorable balance with the requirement of mens
rea. Scholars have suggested different criteria such as physical and immediate harm to the
actual object, remoteness of the actual harm from the harm intended, and foreseeability as to
the actual harm. Part three is devoted to the assessment of the different possibilities,
ultimately defending foreseeability as the preferred circumscribing qualifier. I will not
address the question of whether to restrict the applicability of transferred malice, being as it is
too strongly rooted in social policy and public choice, particularly between the paradigms of
law and order and due process. Rather, I will follow those who hold that some balance needs
to be struck.
6
For a recent comparative analysis, exemplifying the different and sometimes confused approaches taken by
courts in different common law and civil law jurisdictions, see Michael Bohlander, ‘Transferred Malice and
Transferred Defenses: A Critique of the Traditional Doctrine and Arguments for a Change in Paradigm’ (2010)
13 New Crim L Rev 555, 583–607. For a survey focused on the mixed views as to the scope of the doctrine in
US courts, see Travis E Robey, ‘Criminal Law’ (2005) 64 Maryland L Rev 1098, 1106–08. Similar disarray
marks academic accounts and analysis, and much is disagreed upon.
Electronic copy available at: https://ssrn.com/abstract=2393858

2. Theme One
The first recurring theme in the scholarly work on transferred malice that I wish to address is
the common expression of qualms as to this doctrine’s utility within the framework of the
criminal law. In cases of mistaken identity (D targeted object P mistakenly believing it to be
object O), there appears to exist a wide agreement that the doctrine is superfluous.7 If Dan
shoots Peter in the back, the argument goes, it is in any case irrelevant that Dan mistook Peter
for Owen. Dan’s motive for his intentional shooting at object ‘Peter’, ie bringing about the
death of Owen, is immaterial to Dan’s culpability for harming Peter and malice need not
transfer. As for cases of bad aim (D targeted object O but missed it and harmed object P
instead), differing positions emerge. Douglas Husak has identified and distinguished in this
respect two schools of thought, that he respectively named abolitionism and purism.8
Abolitionists hold that the doctrine of transferred malice is redundant, for it functions in cases
in which the offence definition does not require a specific object to be harmed. Offences
against the person and offences against property alike are not typically founded on intention
to specifically harm P or cause damage to P’s property (P being the actual victim), but on
general intention towards harming a human being or causing damage to someone’s property.9
Where P and O are of the same type referred to by the offence, D meets this general
7
See eg Williams, Criminal Law (n 3) 138–39; AJ Ashworth, ‘Transferred Malice and Punishment for
Unforseen Consequences’ in PR Glazebrook (ed), Reshaping the Criminal LawEssays in Honor of Glanville
Williams (Stevens & Sons 1978); LaFave and Scott (n 3) 402; WJ Ritz, ‘Felony Murder, Transferred Intent, and
the Palsgraf Doctrine in the Criminal Law’ (1959) 16 Wash & Lee L Rev 169, 171; Dillof (n 3) 512–13;
Bohlander (n 6) 556. I will take a critical look at this position below.
8
Douglas N Husak, ‘Transferred Intent’ (1996) 10 Notre Dame JL Ethics & Pub Poly 65, 69–75. Husak himself
professes to be neither an abolitionist nor a purist. To him, the principle should be rooted not in substantive
criminal law, but in punishment theory (see discussion in the text below). For present purposes Husak may be
categorized as a purist, for, irrespective of his views on punishment, he opposes the application of transfer
malice.
9
The idea of general intent is sometimes referred to as ‘the impersonality model’. See eg Jeremy Horder,
‘Transferred Malice and the Remoteness of Unexpected Outcomes from Intentions’ [2006] Crim L Rev 383.
Alternatively, it is sometimes referred to as ‘replication’ of intent. See eg Mitchell Keiter, ‘With Malice Toward
All: The Increased Lethality of Violence Reshapes Transferred Intent and Attempted Murder Law’ (2004) 38
USF L Rev 261. Some view general intent not as a rationale for abolitionism, but as the rationale basing the
doctrine of transferred malice. See eg Daniel J Curry, ‘Poe v State: The Court of Appeals of Maryland Limits
the Applicability of the Doctrine of Transferred Intent’ (1997) 27 U Balt L Rev 167, 169–70. The difference
seems to hold no real consequence as they would agree with abolitionists that general intent and transferred
malice concur.

requirement if intending to harm object O, he actually harms object P. Thus, for the
abolitionist transferred malice ‘is not really a doctrine at allmerely a particular type of
immaterial variation […] D’s actions cause an outcome that is in some way unexpected, but
not in a way relevant to the offence definition.’10 By contrast, purists do not accept the
concept of general intent. For them, reference to a general object type in the phraseology of
an offence means that all objects of that type equally receive the protection of the law; but the
intention in every particular case still needs to be object-specific, ie is examined in respect to
the specific target of the offender. A purist label would attach to those who are satisfied in
cases of bad aim with a charge of attempt as to the intended object (perhaps coupled with a
consummated offence towards the actual object, depending on the defendant’s mental state in
its respect). In light of this, Heidi Hurd and Michael Moore have argued that the doctrine of
transferred malice was crafted at a time when offences were not complemented by lower
grades of liability, and the choice then was between consummated liability by transfer of
malice and no liability at all. Modern criminal law does not pose the same dilemma, as the
defendant in cases of bad aim may be culpable for an attempt vis-à-vis the intended object.11
Underlying the variance are questions about conceptualizing ‘intentions’: What role
do motives play in intentions and can the object of a unit-specific intention (e.g. hitting O) be
properly defined in terms of type-intention (hitting a person).12 It is crucial to distinguish here
the difference between intention that is type-specific to intention that is object-specific. The
prior being intent to harm somebody or indeed anybody; the latter being intent to harm object
O. In such instances, if D ends up harming P, purists would find intention to harm P in the
first instance only, whereas abolitionists would find intention to harm P in both instances.
10
AP Simester and others, Simester and Sullivan’s Criminal Law—Theory and Doctrine (4th edn, Hart 2010)
165. Abolitionist views are also expressed by William L Prosser, ‘Transferred Intent’ (1967) 45 Tex L Rev 650,
653; Hyman Gross, A Theory of Criminal Justice (OUP 1979) 102; Richard Card, Card, Cross & Jones
Criminal Law (19th edn, OUP 2010) 95; Kyron Huigens, ‘The Nature, Structure and Function of Heat of Passion
Provocation as a Criminal Defense: A Critical Introduction to the Symposium’ (2009) 43 U Mich JL Reform 1,
10–11. Husak lists two more reasons, other than the general definition of the object of the offence, for the
abolitionist view, that are available particularly for murder in some jurisdictions: (1) the felony murder
rulethe actual victim is killed during the commission of an attempt to murder the intended victim; (2)
depraved heart murderintent to kill is abandoned as a requirement for murder. See Husak (n 8) 71–72.
11
Heidi M Hurd and Michael S Moore, ‘Negligence in the Air’ (2002) 3 Theoretical Inquiries L 333, 390. The
idea that the availability of attempt in cases of bad aim may render the doctrine of transferred malice irrelevant
or unneeded was also articulated by Ashworth, ‘Transferred Malice’ (n 7) 78–79; Horder, ‘Transferred Malice’
(n 9) 393.
12
For a fairly recent account of these questions see Kimberley Kessler Ferzan, ‘Beyond Intention’ (2008) 29
Cardozo L Rev 1147.

Thus, excluded from the purist’s insistence on object-specific intention are cases in which the
defendant did not mean to harm any object in particular, as in the case of the rooftop shooter
who indiscriminately shoots into a crowd or the terrorist who detonates a bomb from afar to
explode in a public place. In these cases it is truly immaterial who specifically is harmed, and
a finding of intent to harm the actual object would still be respectful of the actor’s specific
intent.13
One interesting point to be made here concerns the overwhelming tendency of both
abolitionists and purists to separate their discussion of bad aim from their discussion of
mistaken identity. Surely, abolitionists should not differentiate bad aim from mistakes. In that
view, intent is not object-specific in either case, allowing a conviction in a single
consummated offence towards the actual object in both. When abolitionists argue that the
doctrine of transferred malice is redundant in cases of mistaken identity they are simply being
consistent with their view on cases of bad aim. With purism matters are more complicated.
Purists sometimes differentiate between the two types of cases, reserving the purist stance to
bad aim cases only.14 What could be the rationale for treating cases of mistake as a single
consummated offence and cases of bad aim as two offences (attempt vis-à-vis the intended
object, and a discrete offence vis-à-vis the object actually harmed)? Andrew Ashworth has it
that a defendant who is mistaken about the actual object’s identity is nonetheless intending to
harm that actual object, whereas in cases of bad aim the two objects, the intended and the
actual, are separated.15 This reasoning has some appeal to itcertainly for German law,
where it is decisive16but it is ultimately not convincing. Conceptually, a similar sort of
separation exists in cases of mistake, this time between the actual object and the object the
defendant had in mind. Bad-aim-only purists may answer that in cases of bad aim the conduct
13
A special case of such general intent is where the defendant does not target just anyone, but a designated
group of people, eg an enemy or a minority group. I discuss this case as part of my analysis of hate crimes
below.
14
Ashworth is one notable example. Compare his purist position in AJ Ashworth, ‘The Elasticity of Mens Rea’
in CFH Tapper (ed), Crime, Proof and Punishment—Essays in Memory of Sir Rupert Cross (Butterworths 1981)
57–58, with his separation of bad aim from mistake in Ashworth (n 7) 77–78. Husak seems to be another: see
Husak (n 8) 79–80.
15
ibid.
16
The position of German law on transferred malice is akin to purism, but the doctrine is reserved for cases of
bad aim only. A mistake in the identity of the victim is considered an irrelevant motive that does not affect the
defendant’s mens rea towards the actual victim. See Michael Bohlander, Principles of German Criminal Law
(Hart 2009) 74.

‫םכ איק גקכקמגשמא ןד צםרק רקשגןךט גןהןגקג ןמאם שבאןםמ שעשןמדא איק שבאושך‬
object and action ‫ איק ןמאקמגקג םנחקבא ןד‬:‫שעשןמדא איק ןמאקמגקג םנחקבא‬
‫ שבאושךךטת מםא חודא‬conceptually, aimed at, justifying a charge of attempt, and the harm
to the actual object bases a separate justification for consummated offence liability. This
reasoning too falls short. If purists are to stay consistent, they will have to similarly divide the
defendant’s conduct in at least some cases of mistaken identity. For example, if D was to
mistake a manikin for his intended victim O, then, consistent with purism, he should be
charged with both attempt against the person and damage to property (depending on his
mental state as to that consequence of his action). Why distinguish this case from the
paradigmatic example of mistaken identity in which D shoots at person P mistaking him for
person O? Consistency demands that purists treat the later case too as an attempt towards the
intended victim. The expected retort would be that the split between the intended and the
actual object is not needed where the mistake is within the same offence or towards the same
object type. But this reasoning is more akin to the abolitionist rhetoric, and to the notion of
general intent that purists reject. The bad-aim-only purist may then come full circle and insist
once more on his position that, unlike in cases of bad aim, in cases of mistaken identity D’s
mens rea is directed towards P, who is actually harmed, and D should therefore be liable for
one consummated offence towards P. Is there another way to refute this assertion? Imagine a
hostage situation in which a Special Forces sniper directs a lethal bullet at a figure he
mistakes for the assailant, only soon to find out that he actually killed the hostage. The sniper
did not mean to kill the hostage, and purists, devoted as they are to giving respect to the
actor’s object-specific intent, should be very uneasy to say that he did.17 Now imagine the
soccer fan who steals what he believes to be cup-final tickets, only to find out that they are in
fact tickets for a rendition of Swan Lake. Purists would not describe him as a man in search of
tickets or property in general, but they should also not make him out to be a ballet enthusiast.
Consistency requires them to treat this case as an attempt to misplace the specifically
intended object (accumulated perhaps by a consummated offence in respect to the ballet
tickets, dependant upon his mental state). Thus, a consistent purist view, just as a consistent
abolitionist view, would not differentiate cases of mistaken identity from cases of bad aim.
Consequently mistaken identity can not be discarded as irrelevant to the discussion on
transferred malice, as it is so commonly done.18
17
Accordingly, the law affords the sniper a mistaken justification defense.
18
See n 7.

In what follows I will not differentiate bad aim from mistaken identity. I will also not
endeavor to choose between abolitionism and purism.19 For the purposes of the discussion, I
will accept the merits of both and assume that transferring malice is often either redundant or
misguided. This assumption serves as the starting point, as well as the backdrop, to an
exploration of cases where the doctrine of transferred malice may still prove desirable. Can
any form of transferred intent survive the attack by purists and abolitionists?
Purists Hurd and Moore20 suggest that malice be allowed to transfer in some of the
cases that fall within the confined limits of the same type of harm the law prohibits. They
offer an example in which D strikes O intending to take out his left eye, but due to O’s
movement strikes out his right eye. Much can be learned from this example. It cleverly brings
to light the inevitability of generalizing about intentions even within purist discourse. It tells
us that the sensible question can no longer be whether we should respect the actor’s object-
specific intent, but how specific is specific intent.21 Pure purism is exposed as being either
impossible to achieve or absurd. But does Hurd and Moore’s criterion draw purism’s proper
contours? More specifically, it should be asked why, if Hurd and Moore reject general intent
as to ‘person’, they promote generality amongst a person’s organs? Their answer: ‘The
defendant in the case imagined is close enough to success in achieving what he set out to do
that he should be held liable for an intentional crime.’22 But how close is close enough and
where do purists draw the distinctive line between where we ought to insist on specific intent
and where general intent should prevail? Arguably, the line between different organs and
different persons is not sufficient to this cause. Imagine that O’s right eye is almost blind to
begin with. In this case, D’s intent to harm O’s left eye was specific enough to exclude O’s
right eye. Now imagine, conversely, that D intended to hit his long-time enemy O, but is
19
A fundamental difference between the two approaches, which I will not explore in the text, is that the
abolitionist responds to the harm caused to the actual victim or object whereas the purist responds mainly to the
(potential) harm to the intended victim or object. It is certainly open for debate which response is more
appropriate for criminal law.
20
Hurd and Moore (n 11) 390–91.
21
Purism would also be narrowed in respect to circumstances other then the object of the offence. Take for
example an aggravated form of burglary that is based on the circumstance of time, say night time burglary. If
burglar D thinks he is acting at 3 am, when it is in fact 4 am (both hours being ‘night time’), then we should be
talking of general intent as to night time. It would be silly to charge D with attempt to burgle at night time, and
just as ridiculous coupling attempt to burgle at nighttime 3 am with a consummated offence of burglary at
nighttime 4 am.
22
Hurd and Moore (n 11) 391.

content when the stone he threw at O hits O’s wife P instead. This time D may be close
enough to successfully achieving what he set out to do to warrant transfer of malice between
different persons. Hurd and Moore show us that the purist ideal must tolerate some deviation,
but we are still in want of a criterion by which to decide when this deviation should take
place. Furthermore, we do not yet know whether all deviations may be covered by the
abolitionist notion of general intent. Hurd and Moore’s example suggest that it would: the
purist must allow some space for abolitionism, by formulating criminal intent at one or
another level of generality. I will contend that the more significant deviations from the purist
ideal transcend the wording of concrete offences and go beyond abolitionism.
Transferred malice has a role that should endure in face of the combined attack by
abolitionism and purism, and that role is of a corrective doctrine serving to counteract
imperfections in substantive criminal law. The two assumptions underlying the abolitionist
and the purist view, in turn, rest on such imperfect aspects of substantive criminal law that are
in need of correction. The abolitionist relies too heavily on offence definitions. The purist
over-relies on the doctrine of attempt. Transferred malice has a task to perform in these
spheres of imperfection. And while it would perhaps be preferable to correct the flaws rather
than to offset them, this means perfecting the law of criminal attempt, which recent endeavors
proved hard to achieve,23 and reforming the vast body of criminal offences, which should
prove even more demanding. In fact, the problem is innate to criminal law: it is inherently
impossible to address the varied, often conflicting interests in offence definitions.
Discrepancies between the precise contours of protected interests and the wording of offences
are an inevitable reality.
Let us take a look first at the particularities of offence formulas, which should prove
troublesome for abolitionists. Ashworth has convincingly argued that we cannot trust offence
definitions as decisive factors in the application of transferred malice. His argument in this
respect goes against the established principle of no transference between offences, or, as
Horder had named it, the ‘no-translation’ rule.24 The principle was stated negatively by Card
(‘not surprisingly, the defendant cannot be convicted if he acted with the mens rea for one
offence but unexpectedly commits the actus reus of another offence’25) and positively by
23
Law Commission, Conspiracy and Attempts (Law Com No 318, 2009).
24
Horder, ‘Transferred Malice’ (n 9) 390.
25
Card (n 10) 95. See similarly in Simester et al (n 10) 164: ‘[i]t is not possible to convict someone on the basis
of an actus reus for one offence accompanied by the mens rea for a different offence’.

Williams (‘malice transferred only within the same crime’26). The textbook illustration of the
rule is of an attacker aiming at a man and hitting his dog, or vice versa. 27 The attacker has the
mens rea of one crime while committing the actus reus of another crime, and therefore
cannot be convicted of either. Another much cited example is R v Pembliton,28 in which the
defendant aimed a stone at his rival in a bar brawl and hit a window instead. It was held that
intent cannot be transferred between a person and an object, as the mens rea of assault on a
person coupled with the actus reus of causing harm to an object do not form either offence.
The ‘no translation’ rule is certainly sensible, and under a perfected criminal code it could
have perhaps been afforded absolute supremacy. In reality however, particular offences are
often defined by reference to factors that do not carry moral significance or represent fair
labeling, which has led Ashworth to lament that ‘one who supports the subjective principle
and opposes constructive liability can take little comfort from the limitation of the doctrine of
miscarried intent to the same category of offence. The moral significance of that limitation is
variable, to say the least.’29 I will follow Ashworth’s example by pointing out that an
intention to burn chattel and an intention to burn a house were once formulized in two
separate offences, and are now, since the Criminal Damage Act 1971, generalized as
intention to damage or destroy property belonging to another.30 This example may serve no
other purpose than to show that social interests and values are subject to change over time,
and thus the changing formulation may have been due to a shift in the typology and hierarchy
of values and interests caused by the industrial revolution, the significant increase in
urbanization and other such deep changes in the social climate. But it is more likely that the
change was the product of casuistic lawmaking mechanisms typical to common law, in which
offences formulated separately to face developing needs are later amalgamated under a more
general perspective of codifiers (and, conversely, divisions are sometimes made within
26
Williams (n 3) 128. See similarly John C Klotter and Joycelyn M Pollock, Criminal Law (8th edn, Anderson
Publishing 2006) 50: ‘This [the principle of transferred malice] applies only within the limits of the same
crime.’
27
Glanville Williams, Textbook of Criminal Law (2nd edn, Stevens & Sons 1983) 181; David Ormerod, Smith
and Hogan’s Criminal Law (13th edn, OUP 2011) 137.
28
[1874] LR 2 CCR 119.
29
Ashworth, ‘Elasticity’ (n 14) 57.
30
ibid 48.
10

categories once thought to be united).31 The lesson to be learned is that we should be
suspicious of over-relying on offence definitions in the application of transferred malice. For
Ashworth, this means that ‘mens rea may be transferred from one offence to a lesser crime of
the same kind.’32 He offers an illustration that cross border between malicious wounding and
assault:
If D swings his belt at the face of O, misses and bruises the arm of bystander P, we can see
that the offence against O, if successfully consummated, would have been malicious
wounding, whereas the actual harm caused to P is more in the nature of common assault. The
two crimes are not the same, but since the mens rea of assault is included in the mens rea of
malicious wounding (and since it is possible to convict of assault on a charge of malicious
wounding), there would seem no reason to discountenance this application of the doctrine.33
Notice how his form of inter-offence transference is of little practical value. The fact that the
sentence for attempting to commit the greater crime is typically higher than the sentence for
the completion of the lesser crime gravely undercuts its applicability.34 Actually, the
deficiencies of offence definitions run deeper and wider than originally suggested by
Ashworth’s illustration, implying broader domains for transferred malice in inter-offence
situations. They send us searching for a more comprehensive principle by which to apply the
doctrine between different offences.
In furtherance of this aim, my quest now takes an inductive nature. I commence by
comparing the classic example of aiming at a person and hitting a dog with examples of cross
border between murder and infanticide. As we have seen, it is widely held that if the
defendant aimed to kill a person and hit his dog instead (or vice versa), malice would not be
transferred between the man and the dog. This outcome seems quite justified. But now think
31
This is how Ashworth sees the issue, quoting in support Law Commission, Offences of Damages to Property
(Law Com No 29, 1970) paras 28–33: ‘the nature of the property is a subsidiary mater’. See Ashworth,
‘Elasticity’ (n 14) 54.
32
Ashworth, ‘Transferred Malice’ (n 7) 82.
33
ibid 82.
34
In any case purists, of which Ashworth is one, are expected to treat the malicious wounding/assault example
as amounting to attempted wounding of O (compiled by an assault on P if and only if D had mens rea in respect
to P). As for abolitionists, they are not set against the law of attempt, and are too expected to prefer it when it
results in augmented responsibility. Imperfections in the law of attempts may disallow conviction for attempted
wounding of O, but I will address this deficiency later on.
11

of a woman suffering from post-natal depression who tries to kill her newborn baby and, by
accident or mistake, kills a stranger’s baby instead. Under s. 1(1) of the Infanticide Act 1938,
criminal responsibility for an act done in circumstances that amount to murder (or
manslaughter) will be diminished to the lower offence of infanticide if that act was performed
by a mother to her child within the first 12 months of his birth, and at a time when ‘the
balance of her mind was disturbed by reason of her not having fully recovered from the effect
of her giving birth to the child or by reason of the effect of lactation consequent upon the
birth of child.’ Should this lenience be afforded to the woman when in trying to kill her own
baby she ends up killing another? Arguably, the answer is yesmalice should transfer from
the intended baby to the stranger’s baby and the woman should be guilty of infanticide and
not of murder. Conversely, when a mother of a newborn, whether or not suffering from post-
natal depression, aims to kill a stranger’s baby and, by accident or mistake, kills her own
baby instead, the justified charge would be one of murder, not infanticide. What is the factor
distinguishing this example from that of aiming to kill a person and hitting his dog, which
does not constitute murder? Differentiating these examples is the basis for calculating the
delta of the social harm between the variants of both. Fatality to a person is considered by law
to be an objectively greater social harm than death to an animal. Simply put, human beings
deserve more protection under the law than animals do. The same cannot be said about the
difference between murder and infanticide as varieties of homicide. The lives of all babies
deserve equal protection, and the law does not revere one baby over another. The justification
for affording a baby less protection from death by the hands of his mother is culpability-
based. The underlying rationale of the reduced charge of infanticide is the mother’s reduced
mental capacity and diminished sense of judgment due to her post-natal emotional state.35
Abolitionists, if not purists (who we turn to next), should leave space for the doctrine
of transferred malice to apply in between offences that are differentiated not by objective-
based social harm but by subjective, or culpability-based, social harm. And, as we have seen,
in doing so they should not distinguish bad aim from mistaken identity.
Let us look at some other examples of varying social interest.36 The law’s changing
position towards transferring intent between suicide and murder is illuminating in this
35
Ormerod (n 27) 593–94.
36
I should stress that it is not important to agree with my analysis of each particular example in order to accept
the general idea that some inconsistencies that exist between moral and legal categories render the abolitionist
position incomplete.
12

respect. A miscarried suicide attempt that accidentally causes the death of another was (until
the Suicide Act 1961 repealed the common law offence of suicide), considered to constitute
murder or sometimes manslaughter.37 Under current law, intent would not be transferred
between suicide and murder. One explanation offered for this changed position stressed that
in a miscarried suicide leading to accidental homicide the defendant does not perform the
actus reus of murder, which specifies the killing of another, obviating the question of mens
rea and the transfer thereof.38 This explanation is somewhat technical and somewhat false.
False because the defendant did perform the actus reus of murder, by physically killing
anotherhe just did not intend it to occur. And a less technical explanation would be that
suicide and killing of another deviate in the objective social harm that ensues from each.
Generally speaking, in suicide, the person killed wills his own death, whereas in murder,
death is inflicted not on the self but on a victim unwilling to die. This lack of volition that
typically exists on the part of the injured party in murder makes it possible for any member of
society to become a victim of that offence, whereas death by suicide only befalls those that
choose it. Murder therefore creates a sense of insecurity in society which suicide does not.
The distinction between objective-based and culpability-based social harm better help to
explain the law’s position as well as the shift in the law’s response to fatal miscarried suicide
attempts. It suggests that this shift may have been brought about by a parallel shift in the
law’s perception of the difference between killing oneself and killing of another. Where the
killing of oneself was once considered to differ from killing of another only in the mental
attitude of the killer, it is now seen as forming two different kinds of objective harm: the
willed death of a person by his own hands and the generally unwilled killing of a person by
the hands of another.39
Objective differences in the nature of social harm also characterize the variants of
murder and abortion. When D intends to kill a woman but in shooting her causes the death of
her fetus, malice would not transfer from the woman to the fetus. 40 When D performs an
37
See Williams, Criminal Law (n 3) 126. Conversely, an attempt to commit murder unintentionally results in
self-homicide had once constituted the offence of suicide (126–27).
38
Husak (n 8) 78.
39
Under the law of murder consent is not a general defense. Nevertheless, when the victim consents to his own
death, such as in cases of mercy killing, the charge of murder becomes very controversial. This too can be
explained by pointing to the difference in objective-based social harm between consensual and non-consensual
homicide.
40
See Attorney General’s Reference (No 3 of 1994) [1997] 3 All ER 936 (HL).
13

illegal abortion upon a woman, in the consequence of which the woman dies, again malice
would not be transferred from the fetus to the woman.41 Williams explains this outcome in
technical terms, as an application of the ‘no translation’ rule: ‘Here the defendant intends an
abortion […] but the killing of the woman is a different crime.’42 A better, less technical
explanation that would capture the more fundamental principle underlying this outcome, is
that the social harm in killing a person and in killing a fetus is considered by law to be
objectively different. Williams further cites an Irish case in which the defendant set fire to his
land at a date prohibited by law, and the fire, unintended by him, spread to cause damage to
his neighbour’s land. Williams agrees with the court’s ruling that barred the transfer of intent
from the offence of setting fire at an unapproved date to the offence of malicious damage to
property. Indeed, he goes on to argue: ‘otherwise too great a violence would be done to the
doctrine of mens rea and to the wording of the statute under which the charge is made.’43 But
the reason is rooted neither in mens rea nor in the wording of the statute. We have established
that intent should sometimes transfer from one crime to another. The question is when it
should be transferred. The answer which provides the more convincing reason for not
transferring malice in the fire-setting example is the nature of the social harm underlying the
actus reus of the offences discussed. Causing fire to a stranger’s property forms an
objectively different harm from the nuisance that is caused by ill-timely setting fire to one’s
own property.
Some situations may be hard to resolve. For instance, situations involving cross
border from police officer to person are dependant on the type of the justification given for
augmenting punishment based on the victim’s status. It could be, that the rationale for
treating assault on a police officer more severely than common assault is objective-based (the
assaulted officer is offended as a person and in addition his public function is compromised),
but it could just as well be subjective or culpability-based (focusing on the defendant’s lack
of respect for the police). If D intends to assault officer O but, by accident or mistake,
actually assaults citizen P, then under the second assumption, but not under the first, malice
may transfer.44 Notice however that transfer of malice will not be appropriate the other way
41
Williams, Textbook (n 27) 277.
42
ibid 277.
43
Williams, Criminal Law (n 3) 129.
44
Again, one does not need to agree with holding D responsible for assaulting an officer. This is just a particular
example of the general inconsistency between moral and legal categories that should sometimes be offset by
14

around. Under both assumptions, if D intends to assault citizen O but, by accident or mistake,
actually assault officer P, then, lacking mens rea as to the aggravating circumstance, D will in
anyway only be liable for the lesser offence of common assault.
Culpability-based social harm may be said to characterize hate crimes. D intends to
hit O because he is of Turkish descent but mistakenly or accidentally hits P, who is not. Is
this an instant of a hate crime? It is reasonable to hold that the aggravated nature of hate
crimes lays in the fact that the defendant intended the crime to express his hate. Notice that
contrary to the aggravating factor of assault on an officer, assault on a member of a minority
group is not aggravating in itself, but is contingent on the defendant’s motive. In hate crimes,
it is not the fact of who is hurt that matters, but the hateful motive, which makes them a
clearer example of subjective or culpability-based harm. Hate crimes are constructed to
respond to the phenomenon of bigotry and to alleviate the pain that is experienced by those
hated. It is not constructed to confirm another form of prejudice, by alleviating the pain felt
by the group that one of ‘their own’ was attacked. Therefore, in the example set above of a
hate crime gone astray malice should transfer to form a hate crime. Absent the doctrine of
transferred malice the abolitionist notion of general intent would not account for the full harm
of the offence. Once again, this would not be appropriate the other way around, and if D
intends to hit O out of a personal grudge, but mistakenly or accidentally hits minority
member P, then, lacking the needed mens rea of a hate crime, D will only be liable for
attacking a person.
The shift from intended victim O to actual victim P should not entail an additional
relaxing of the intention requirement as to the circumstances of the offense, for nothing in the
doctrine of transferred malice implies that it has this double abilityto transfer and also to
transform. The criterion here suggested for the application of transferred malice is consistent
with this idea, as well as with the principle by which malice does not transfer between
consequences.45 Where the aggravating circumstance leads to an objectively different or
additional social harm, as in the case of aiming at a man and hitting his dog, we lose our
ability to easily draw the line between circumstance and consequence. The object of the
offence is said to be a circumstance within its definition, but can it not just as well be said
transferred malice. One may accept the existence of this problem without accepting the contours of the instances
to which it applies. Specifically to the issue of assault on an officer, a further problem arises, being the
inapplicability of attempt law where D is only reckless as to the possibility of assaulting an officer. This will be
addressed below.
45
Williams, Textbook (n 27) 980.
15

that harming a dog and harming a human differ in consequence? This will also hold true for
offences not conditioned upon consequences, where it suffices to act against the object of the
offence without further causing it harm. For example, if assaulting an officer is an objectively
aggravated form of assault, then it may be said that the reason for punishing assaults is that
they harm society, and it is quite a different harm when an officer is assaulted than when a
citizen is. Similarly, If D means to sexually assault O, known to him to be 15-year-old, and in
the dark ends up assaulting 16-year-old P (notice how hard it is in this example to discern bad
aim from mistake), D would not be culpable of sexual assault with the objectively-
aggravating circumstance of the victim’s young age.46 Generally speaking, when the
circumstance adds an objective-based social harm to the requirements of the offence, then it
may be treated as a consequence, and malice should not transfer. Looked at the other way
around, this analysis may also provide the key to understanding why malice should not
transfer among consequences.
We turn now to the shortcomings of attempt liability, the cornerstone of purism. Here
again Ashworth’s insight is helpful. As will be recalled, Ashworth’s take on transferred
malice is akin to purism, advocating that the doctrine of transferred malice be undercut by
utilizing inchoate doctrines, particularly attempts. In his earlier article on the subject,
Ashworth wrote that ‘[a] conviction for attempt is possible in virtually all cases which fall
within the doctrine of transferred liability. D will invariably have taken sufficient steps
towards committing the offence against his intended victim for there to be the actus reus of
an attempt, and mens rea will be undisputed.’47 In retrospect, this assertion now seems
overstated. Whilst mens rea will not be disputed in cases of transferred intent, it will be in
46
But if D intends to have intercourse with 13-year-old O but fumbles and has intercourse with 12-year-old P,
then under Sexual Offences Act 1956, s 5 his belief (even when reasonable) is no defense. Horder justifies this
outcome, explaining that a mistaken belief that the victim is aged 13 has no bearing on the defendant’s
culpability, and it is only the age of 16, the age of consent, that is of moral, and therefore legal, significance. The
age of 13 does not in itself center on the guiding reason against the sexual act, that being that the victim is under
the age of consent. See Jeremy Horder, ‘How Culpability Can, and Cannot, be Denied in Under-age Sex
Crimes’ [2001] Crim L Rev 15, 23. If we follow Horder to view this case as a justified exception to the
correspondence principle, then this is a case in which malice should transfer from the less serious offence that D
had in mindie having intercourse with a 13-year-oldto the more grave offence characterizing his
actionhaving intercourse with a girl under the age of 13. This example shows us that just as some
circumstances give due only to culpability-based social harm (such as the case of infanticide), other
circumstances may give due solely to objective-based social harm, and in these cases the doctrine of transferred
malice may be used to allow for justified exemptions to the correspondence principle. As the idea of exemptions
to the correspondence principle is very controversial and demands more articulation than is fit for the present
work, I will abstain from further developing this idea in the text.
47
Ashworth, ‘Transferred Malice’ (n 7) 86.
16

cases of transferred recklessness, where recklessness does not constitute a sufficient mental
element for attempt liability.48 When D holds no intent, but merely knowledge or
recklessness as to harming O and only negligence as to harming the actual object P, then
without the possibility to transfer malice there can be no liability for attempting to harm O
and no liability for harming P. Moreover, the actus reus of attempt requires physical
proximity to the accomplishment of the intended conduct of result, which may be lacking in
many instances that fall under transferred malice. This second point did not elude Ashworth.
In a later article he admitted that given the requirement of proximity, attempt liability cannot
provide for all cases falling within the doctrines of transferred malice, providing in support
the following example: ‘If D lies in wait for his mortal enemy X and attacks a person of
similar appearance whom he believes to be X and who is actually V, a charge of attempting
to wound X is likely to fail unless it is shown that the acts were physically proximate to X.’49
This later article shortly preceded the Criminal Attempt Act 1981, and Ashworth was
optimistic that its enactment will alter this mismatch; however, cases such as Geddes,50 with
their restrictive view of the actus reus of attempt, proved his optimism to be exaggerated. As
long as the law of attempt is construed in the way that it is, purists cannot wholly do away
with the doctrine of transferred intent.
For instance, purism cannot satisfactorily account for all types of murder. Murder is
sometimes based on mental elements that do not amount to specific intent to cause death,
particularly under the doctrines of felony murder and wanton disregard for human life. In
these cases, a charge of attempt will not be available towards the unharmed victim, where
attempt requires no less than purpose or intent. This problem may be partly offset by the wide
breadth of the mental states that are typical to less-than-intentional-murder, making them
available to the charge of murder vis-à-vis the unintended victim. D’s wanton disregard to
human life in his actions towards O will many times also amount to wanton disregard
towards all those in O’s vicinity, including injured P. Yet, it is also possible that P was
48
Criminal Attempts Act 1981, s 1(1) conditions attempt liability on a mental element of intent. By contrast, in
the Model Penal Code (n 4) s 5.01(1) intent is required for incomplete attempts, whereas belief may suffice for
‘last act’ attempts.
49
Ashworth, ‘Elasticity’ (n 14) 58.
50
[1996] 160 JP 697 (a defendant equipped with a knife, rope and a roll of masking tape trespassed a lavatory
with the purpose to capture and restrain a boy, but was held to be in the preparatory stage not warranting
liability). See further Christopher MV Clarkson, ‘Attempt: The Conduct Requirement’ (2009) 29 OJLS 25.
17

completely out of O’s sight and mind, and in this case, transferred malice is crucial to holding
D accountable for his wanton taking of a human life. Of course, this anomaly could be used
not as an argument for the doctrine of transferred malice in face of a flaw in the law of
attempt, but rather as a demonstration of the flaws in a murder charge based on recklessness
or wanton disregard as opposed to specific intent to end human life. It is therefore helpful to
notice how some of the examples we have treated in respect to the abolitionist’s over-reliance
on offence definition also apply to the discussion of the purist over-reliance on attempt
liability. Assault, either common or against an officer, is constructed not on intention, but on
recklessness as to the values protected by the offence. When D recklessly or
knowinglyalthough not intentionallydirects his assault at police officer O but, owing to
either accident or mistake, ends up assaulting citizen P, then, even when the added social
harm in the aggravated variant is based on the defendant’s subjective culpability towards the
victim’s status and not on any added objective harm, attempt liability is not available for that
variant.
We may conclude that in cases involving variations on offences that are differentiated
by subjective or culpability-based harm, and do not require a mental state of intent, the
doctrine of transferred malice would survive the combined attack by abolitionists and purists.
Leading to the next part of the article, I wish to shortly point out that this conclusion also
withstands a third approach to the eradication of transferred malice which I have hitherto
ignored in the discussion.
Subsequent to his designation of abolitionism and purism, Husak professed his own
adherence to neither.51 To him, the doctrine of transferred malice should be rooted not in
substantive criminal law, but in punishment theory. Where a different object than the one
intended is harmed, the defendant should not be fictitiously labeled as if he had completed the
offence (by transferring his mens rea to the actual object), but should simply be punished at
the same level of severity as a consummate offender. Husak calls this the ‘principle of
proportionate sentences’. He explains this principle thusly: ‘if D1 and D2 act with the same
culpability, and proximately cause the same harm, then they must have committed equally
serious crimes’, and should therefore be subject to a similar sentence.52 This position is meant
to sidestep the doctrine of transferred malice. Under it, malice is not transferredonly
punishment is augmented. Can it be that the inter-offence examples that we have explored are
51
Husak (n 8).
52
ibid 92.
18

also best dealt with by punishment, and that the substantive doctrine of transferred malice is
not needed even in this narrow province? Husak offers one example of such inter-offence
transference. Reflecting on a case where D shoots at citizen O and hits officer P, he writes
that ‘[i]f the killing of a police officer, for example, is judged to be a greater harm than the
killing of an ordinary citizen, the principle of proportionate sentences might provide a basis
to impose a more sever punishment on a defendant who causes the greater harm.’53 Husak
defends his approach by contrasting it with the position that bases transferred malice on a
desire to root out the implications of moral luck. The difference between the two approaches
can be conceptualized in the following manner: whereas the ruling out of moral luck
emphasizes only subjective culpability, the principle of proportionate sentences rightly
couples culpability with harm. The noticeable shortcoming of Husak’s approach is that
punishment theory does not fully address certain cases of inter-offence transference, such as
Husak’s own example of killing a citizen opposed to killing a police officer. Augmented
sentence can only be handed if the law attributes to the defendant a substantive offence with a
greater maximum penalty, and this is only achieved by transferring malice between
substantivenot merely punitivecategories.54 Such is also the case in the converse
example, in which D shoots at officer O and hits citizen P, and the added harm in killing an
officer is considered to be culpability-basedcondemning the defendant’s lack of respect for
the police. Husak would want to augment D’s sentence based on his greater culpability in this
case, but added punishment will not be afforded within the confines of the lesser offence of
killing a citizen. Thus, we can see that transferred malice cannot be wholly discarded.
3. Theme Two
If the doctrine of transferred malice is indeed to survive (at least in some areas of the criminal
law), it should further be asked which criterion best limits the application of transferred
malice to reach a satisfactory equilibrium with the requirement that mens rea concur with the
53
ibid 95.
54
Furthermore, in Husak’s example it may be questioned whether this solution is defensible. After all, it is
mending punishment for harm (to the officer) uncoupled with culpability (for harming the officer).
19

harm actually caused by the defendant. In posing the question in this way, I consciously
circumvent the more primary issue of whether such restraint in the application of transferred
malice needs to be demonstrated at all. As some would have it, transferred malice is open to
an uninhibited application. This view is held by Card, who contends that ‘[p]rovided the
defendant acted intentionally or recklessly in the way required by the definition of the offence
charged, it is irrelevant that the actual object (whether person or property) was unintended or
unforeseen.’55 Against this line of thought, and more commonly, stands the quest to curtail
the doctrine of transferred malice by restricting its applicability to instances where there is a
special link between the defendant and the actual object of the crime. I believe that the
question of whether to restrict the applicability of transferred malice at all is one of social
policy and public choice, particularly between the contrasting meta-paradigms of criminal
justice, ‘law and order’ and ‘due process’. It therefore does not lend itself to analysis by
logic, and should fall beyond the scope of this article. Consequently, I will follow the view
that some balance needs to be struck between the doctrine of transferred malice and the
requirement of concurrent mens rea, and assume a prerequisite of some link between the
defendant and the object actually harmed. But what form should this link take?
Glanville Williams’ initial view on the subject56 framed the limits of transferred
malice in terms of foreseeability and causation, suggesting that the doctrine should only apply
when the defendant is found negligent towards harming the actual victim. Williams saw this
rule as conforming to the plain man’s view of justice and as reflecting the dependency of
transferred malice on an emotional reaction to the defendant’s culpability which does not
occur where the actual victim appeared to be out of range of danger.57 Yet Williams did not
reiterate this idea in his Textbook published 20 odd years later. His later view on the issue
stated that transferred malice should only apply when the defendant’s actions take ‘immediate
physical effect’58 upon another object than that intended. In illustrating this dual criterion of
physicality and immediacy, Williams invoked an American case59 in which the defendant
physically assaulted his victim and as a result an onlooker died of fright. Critical of the fact
55
Card (n 10) 95.
56
Williams, Criminal Law (n 3) 133–34.
57
ibid.
58
Williams, Textbook (n 27) 181. The standard of ‘immediate physical effect’ was indeed stated rather than
defended or explained.
59
Ex Parte Heigho 18 Idaho 566 (1910).
20

that the defendant was convicted of manslaughter vis-a-vis the onlooker, Williams raised
concerns that English courts might follow the same path.
Williams did not revisit the merits of foreseeability as a circumscribing principle of
transferred malice,60 which leaves open the question why he substituted reasonable foresight
with immediacy and physicality. Arguably, the change not only fails to advance the limits of
transferred malice, it actually sets them back. A requirement of foreseeability is apt to restrict
malice from transferring in the illustrative American case, as the effect upon the onlooker
was not reasonably foreseen. Williams seems to pick up the joint criteria of immediacy and
physicality to directly respond to the qualities of that rather arbitrarily chosen illustrative
case. Viewed more generally, it is hard to see why transferred malice should be either
conditioned on or defined by either physical or immediate effect. Taking physical effect first,
consider an example where D sets fire to a haystack near to property belonging to O, reckless
as to the possibility of causing damage to O’s property; P, wrongly but reasonably assuming
that the fire will reach his own property, hastily removes some of his property causing it
damage on the way. Here the damage is not caused by a physical effect, but by a
psychological mechanism much like the one operating in Williams’ illustrative case (the
actual harm is caused by the alarm experienced by the victim as an unintended result of the
defendant’s action). Yet, while this example does not differ from Williams’ in terms of the
physicality of the effect, it is not at all clear that Williams’ criticism applies and that D’s
recklessness towards O’s property should not be transferred towards P’s. In fact, seeing as P’s
alarm was reasonable and therefore objectively foreseen, this example should prove a prime
candidate for the application of transferred malice.61 Conversely, where D shoots at O, misses
him, but hits instead a hidden gasoline tank, causing an explosion that wounds P, it is not
clear that D’s malice should be transmitted to P, although the effect is purely physical (and
immediate).
Furthermore, not all offences that are subjected to the doctrine of transferred malice
require a physical effect (as Williams uses that term) in the first place. Assault, for instance,
may be committed by way of psychologically, not physically, frightening the victim, and yet
if D tries to scare O but scares neighboring P instead, intent may be transferred.
60
Noting only that reasonable foresight is not a requirement of the doctrine of transferred intent and does not
restrict its application under the law. Williams, Textbook (n 27) 390.
61
Or, alternatively and as abolitionists would have it, this example would be one of general malice towards
property in general. Notice that purists may be expected to resort to transferring malice in this case due to the
lack of intent necessary for holding D responsible for attempt to harm O’s property.
21

Turning to the requirement of immediacy, here again it should be questioned whether
transferred malice should be conditioned on or defined by immediate effect. D recklessly sets
a bomb to go off in the vicinity of O. The bomb does not explode, and O, thinking the bomb
to be inoperative, leaves it unattended. If sometime after that P stumbles upon the bomb, sets
it off, and is wounded, the time elapsed between setting the bomb against O and the
wounding of P should not prevent the law from transferring D’s recklessness from O to P.
Conversely, the gasoline tank example outlined above is one of immediate (as well as
physical) effect but of questionable applicability to the doctrine of transferred malice. And, as
in the case of physical effect, most (if not all)62 offences are not premised on immediate or
direct causation of harm in the first place, and there is nothing to suggest that transferred
malice should not apply to them.
More fundamentally, there is no predetermined hierarchy between physical and
psychological mechanisms of causation and it cannot be categorically said which is more
readily attributable to the defendant. And while immediacy may carry its weight as an
evidentiary proxy, it is of little if any moral significance. Reflecting upon the above examples
it becomes apparent that Williams had it right the first time, and that the more relevant
question when determining questions of harm and culpability is how foreseeable is the harm.
The underlying rationale for treating these examples is in fact reasonable foresight as to
causing damage or harm. Possibly, Williams did not mean his joint criteria of immediacy and
physicality to contrast with the criterion of foreseeability. Perhaps he sought to reduce
foreseeability to more basic and concrete elements. But Causation and foreseeability are not
rooted in physicality or immediacy.63 A non-physical, non-immediate effect may entail weak
or shaky causationbut it also may not. The general criterion of foreseeability cannot be
broken down or reduced to these more concrete elements. In all probability it is not
comfortably reducible at all. Thus, the cornerstones of the limits of the transferred malice
doctrine are not physicality and immediacy, but causation and foreseeability. These criteria
better capture the intuition that an uninhibited transfer of malice sometimes leads to unjust
results, and that therefore the doctrine’s applicability should be curtailed.
62
At least since the abolition of the ‘death within a year and a day’ restriction on homicide law in the Law
Reform (Year and a Day Rule) Act 1996.
63
Physicality and immediacy were at one time the basis for the common-law action of trespass. We can only
now wonder whether this has been Williams’ inspiration for requiring them in the present context. Interestingly,
the doctrine of transferred malice originated at a time when criminal law was still fused with the action of
trespass. See Prosser (n 10) 652.
22

I am tempted to speculate that Williams’ shift from reasonable foresight to immediacy
and physicality was induced at least to some extent by the criticism worded by Andrew
Ashworth in his well-known article on transferred malice and punishment for unforeseen
consequences.64 In that article, Ashworth disapproved of Williams’ requirement of negligent
foreseeability towards the actual object, demonstrating its inconsistency with Williams’
treatment of his own version of the ‘gasoline tank’ example: ‘D shoots at O meaning to kill
him. The shot misses but ignites some petrol which explodes and causes the death of P
through burns.’65 On these typically unforeseen facts, Williams held that D may rightly be
convicted for the murder of P, as the offence of murder does not specify the mode of causing
death. ‘Surely,’ criticized Ashworth, ‘there is no reason, either in logic or in the law of
murder, to draw a distinction between chance victim and chance mode. The two situations
should stand or fall together.’66 Williams may have formulated his later criteria of immediacy
and physicality in order to accommodate his view that malice should transfer in the ‘gasoline
tank’ example. Indeed, both immediacy and physicality (but in most circumstances not
foreseeability) are present in the gasoline tank situation, thus consistently allowing malice to
transfer in that example.
But even if Williams was caught in an inconsistency, the idea of curtailing the
doctrine of transferred malice by a requirement of reasonable foresight towards the actually
harmed object may still have merit. In fact, as I have argued above, malice should not transfer
in the ‘gasoline tank’ example. And as my assessment suggests, Williams should not have
sacrificed his criterion of foreseeability to accommodate his solution to the gasoline tank
example, but should have rather forgone his insistence that malice needs transfer in that
example.67
64
Ashworth, ‘Transferred Malice’ (n 7).
65
66
Ashworth, ‘Transferred Malice’ (n 7) 83. Ashworth does not articulate further his criticism of Williams’
suggested standard of foreseeability, aside from pointing to some diverging case authority on this point.
67
If it was not for Williams’ later insistence on treating the gasoline tank example as one where malice should
transfer, it could have been argued that Williams’ earlier view was in fact not inconsistent at all. A close reading
of Williams, Criminal Law (n 3) suggests that Williams was describing existing law in discussing the petrol tank
example (131) (and under the heading ‘malice transferred only within the same crime’) and desirable law in
discussing negligence in relation to the actual victim (132–34) (and under the heading ‘Transferred malice
perhaps confined to cases of negligence’), where he writes ‘the rule should be confined to cases where […] the
consequence was brought about by negligence in relation to the actual victim.’
23

In sum, immediacy and physicality are ingredients of some close and foreseeable
causal relations but not of all, and therefore their application will inevitably lead to
inconsistencies. There will be instances where malice should transfer although the effect
upon the actual victim is not physical or not immediate, as well as opposite instances where
the effect is both physical and immediate but malice should not transfer. Foreseeability is a
term that simply does not lend itself to reduction to more concrete elements. Yet is
foreseeability truly a helpful qualifier? Compare the case of dodging harm (D kills P who
stands behind intended victim O who ducked the bullet in time) with the gasoline tank
example. Where do we draw the line demarcating which is foreseen and which is not? It’s
hard to say. With only a graded criterion at hand, quantitative rather than qualitative,
discerning the cases is neither an easy nor a technical task. Yet, at least with foreseeability,
compared with the joint criteria of immediacy and physicality, we integrate into the calculus
of the probability of causing harm to the actual object many pieces of data that are external to
the joint criteria but are nevertheless relevant. These may include, for example: whether the
crime scene is more prone to the existence of gasoline tanks or to the presence of people
other than O; the relative visibility of P and the gasoline tank; O’s agility in the case of
dodging harm, and so on. Ultimately, the level of probability that is deemed enough for
ascribing liability is a question of policy. Integrating such data to the equation allows
decision makers to reach a more accurate solution.
It is therefore surprising that this solution was later neglected, and not only by
Williams. Jeremy Horder68 favored the notion of ‘remoteness’ over foreseeability as the
decisive factor for the application of transferred malice. Horder conceptualizes remoteness in
terms of the deviation of the actual result from the defendant’s original intention. Under such
a meaning, the focal point of the examination supposedly shifts from objective causal
discrepancies that underlie foreseeability to the divergence between what the defendant
himself had in mind when he acted and what ensued in reality. However this shift can not be
fully realized. Horder leaves the question of remoteness to be determined by the jury or finder
of fact, who will inevitably seek to normatively determine whether the defendant should or
should not have reasonably expected the result to occur in the way that it did. Consequently,
Horder’s concept of remoteness, like foreseeability, may too be founded on objective
standards.69
68
Horder, ‘Transferred Malice’ (n 9).
69
For an exploration (and critique) of a subjective conception of remoteness see text below.
24

Assessing the relative merits of foreseeability and remoteness is made difficult by the
fact that Horder unfortunately does not scrutinize any of the examples given by Williams in
support of his early requirement of foreseeability. Williams provides these three examples:70
[Example one:] D shoots at O intending to kill him; the shot misses O and kills P, who,
unknown to D, was behind a curtain at the time.
[Example two:] D and E have agreed to commit suicide by gassing themselves in a sealed
room. Unknown to them, P, their small son, has concealed himself in a chest in the room and
has fallen asleep. D and E have no reason to suspect his presence. They turn on the gas tap,
but later think better of it and quit the room unharmed. P dies in the gas-filled room.71
[Example three:] D, meaning to kill O, gives a bottle of poison to O’s nurse (an innocent
agent), telling her it is medicine for O; O refuses to drink it, and the nurse puts the bottle in
the dust-bin; the dustman, P, drinks it, thinking it is whisky.
According to Williams, in all three examples, if P’s presence was not to be foreseen by D (or
E), convicting D (or E) for the murder of P may be overreaching.72
What Horder would make of these examples using his qualifier of remoteness can
only be derived implicitly. One possibility is semantic. Horder may agree with Williams’
analysis but prefer the use of a term other than negligence or foreseeability, wishing perhaps
to avoid confusion between the use of these terms in reference to primary forms of objective
mental states and their use to delineate a requirement within subjective mens rea under the
doctrine of transferred malice. But Horder’s argument suggests otherwise, ie that the
difference is not meant to be one of semantics and idiom, but one of substance and
consequence. ‘What should matter,’ he writes, ‘is not only that the actual victims were
unintended victims, but also that they died in an unanticipated way.’73 As Horder’s principle
appears to hold, it is only this twofold deviation from the defendant’s plan that may render an
actual result too remote for the transfer of malice. According to this reading, Horder’s
principle of curtailment is not as far reaching as Williams’, leaving a broader ground for the
70
71
It should be noted that his is a less clean example, as D and E’s original intent was not strictly speaking that of
murder, even though their intent towards one another might be construed as intent to kill, which can be
transferred to the killing of P under an under-restricted version of the transferred malice doctrine.
72
73
25

doctrine of transferred malice: only if the mode by which the result came about is not
expected, is there an exception to the doctrine. Is this conceptualization of the principle of
remoteness better equipped to decide the examples given by Williams?74 Arguably, it is not.
Of the three examples, the first and the third (and arguably also the second) involve
unintended victims, but not unintended ways by which the deaths occurred (by bullet
wounds, gas poisoning and liquid poisoning, respectively). How can we determine whether it
be preferable to apply the idea of remoteness and allow transfer of malice in all three
examples? The answer to this question lies not only in policy, but also in logic.
Upon analysis, there appears to be no categorical moral difference between a case
where D shoots at O and accidentally kills P, hidden behind a curtain (Williams’ first
example; unintended victim only) and a case where D shoots at O and accidentally hits a
munitions factory concealed behind the curtain, causing the death of P (an example given by
Horder;75 unintended victim and unintended mode). It could be reasoned that this last
example is more remote because the mathematical probability of there being both a munitions
factory and a person behind the curtain is, logically, lower than the probability of there being
just a person behind the curtain, since the first possibility is contained in the second. But
reducing the argument to mathematical probability really only proves the oppositeit serves
to promote the use of probability as a factor directly affecting the level of foreseeability.
Consider another case. This time, D shoots at O and misses. P, standing behind a
curtain, hears the noise produced by the gunfire and consequently dies of a heart attack (an
example given by Horder;76 unintended victim and unintended mode). Here again, the
probability of there being a person behind the curtain should be multiplied by the probability
that that person would be so frail that the mere exposure to the noise of gun shots have lethal
consequences for him. This is once more better conceptualized by reference to the question of
whether D should have foreseen such an improbable event, rather than whether P’s way of
dying was too remote from what was intended. The probability of a deviation from both
intended victim and intended mode is lower than the probability of each deviation in itself,
and therefore is less foreseen. If the diminished probability of causing harm is at the core of
74
As Williams’ principle of reasonable foresight is more far reaching than remoteness in its curtailment of the
doctrine of transferred intent (since remoteness, but not foreseeability, will only exclude the doctrine where the
mode was unexpected), he is expected to accept Horder’s examples. The question turns then to the examples
given by Williams which are not curtailed by the principle of remoteness laid out by Horder.
75
76
ibid.
26

Horder’s requirement of different mode, then arguably that requirement is unnecessary, and
its employment as a mediator between probability and foreseeability only obscures the
inquiry by averting attention from factors other than mode that affect probability, such as data
about the victim and the crime scene. For example, D shoots at O standing underneath a
bridge. Just as D pulls the trigger one of the bridge planks unforeseeably breaks, causing P to
fall from the bridge and catch the bullet in place of O. In this illustration the mode of
causation is foreseen, but the occurrence of the harm is less probable, and therefore less
foreseen, perhaps even less than in some examples of decreased probability due to change of
mode. Simply put, what is less probable is less foreseen, but probability does not necessarily
hinge on the mode of causation.
More importantly, the logic of probabilities deriving from the relation of inclusion
just described is only valid in comparisons of dependant incidents, ie between variations on
the same occurrence. The principle governing transferred malice must also be able to give
good account of comparisons between different, independent situations, and this is where the
concept of remoteness fails. Once we attempt to compare one occurrence in which there is
only a person behind the curtain (different person), and another, separate occurrence, in
which both a munitions factory and a person are behind the curtain (different person and
different mode), remoteness can no longer provide a-priori answers. Imagine that the first
occurrence takes place in a long-deserted ghost town whereas the second transpires on the
grounds of a military base. Under such conditions (and all other things being equal), it is the
first instance rather than the second that should be more readily excluded from the
applicability of transferred malice. And while the criterion of foreseeability is versatile
enough to account for this normative difference, remotenessrestricting the inquiry to the
question of mode onlyis not. Remoteness proves to be yet another concept conjured up to
reduce and concretize causation and foresight, and it (dis)functions much like Williams’ later
concepts of immediacy and physicality.
Could the concept of remoteness be redeemed as a criterion for applying transferred
malice were it conceptualized in subjective terms (ie in the eyes of the defendant)? Horder
leaves room for such a possibility when he writes that transferred malice should apply to
cases where the harm is within the bounds of what the defendant himself (subjectively)
intended or anticipated, even if it was not to be reasonably (objectively) foreseen. 77 He offers
this instructive example in support:
77
ibid 389.
27

D deliberately knocked V out in an area of town D knew to be notorious for its violence, and
left V to his fate. As D fully realized might well happen, V is subsequently intentionally
killed by a robber.78
Horder criticizes the case law that deems D’s action as merely the historical setting in which
the real cause of deaththe robber’s actoperated.79 For him, the actual mode by which V’s
death occurred is close enough to what D had in mind to justify his culpability. This criticism
is not wholly applicable to the point at hand. Notice that the example given is not an instance
of transferred malicethe intended victim and the actual victim being one and the same, both
embodied in V. Consequently, accepting the validity of Horder’s criticism is one thing and
translating it to the realm of bad aim and mistaken identity is still another. For even if we are
to accept that in a one-victim situation subjective malice overrides objective improbability,80
and thus hold D responsible for the murder of V by the robber, situations involving multiple
victims pose an altogether different overriding consideration: if the defendant acquires
subjective malice towards the actual victim or object, then there is no longer any need to
transfer malice. The defendant’s culpability as to the actual victim is direct, and not
dependant upon his malice towards the intended object. Contrary to Horder’s declared aim to
introduce remoteness as a qualifier within the doctrine of transferred malice, this actually
leaves no place for malice to ever transfer. Therefore, the subjective version of the
remoteness test does not serve to restrict the applicability of transferred malice, but to
eliminate it completely.
I conclude that even though the criterion of foreseeability was abandoned over the
years by commentators on transferred malice, with even its originator Glanville Williams
neglecting it in favor of his later formulated joint criteria of immediacy and physicality, it still
stands as the most convincing qualifier of transferred malice.
78
ibid 390.
79
ibid.
80
We may alternatively disagree with Horder and view his position as being overly subjective. If the probability
of V actually being murdered as wished by D was too far-flung to be objectively foreseen, the law may rightly
exonerate D of murder, irrespective of his ‘crystal ball’ wishes. The objective foreseeability test may better
ascribe responsibility in Horder’s robber example than a subjective version of remoteness (ie remoteness from
what the defendant himself intended or anticipated).
28

That having been said, there is still a final objection to the use of the foreseeability
qualifier in transferring malice that needs to be confronted here, and that is the claim of
redundancy. Simester and Sullivan81 make a point of reminding us that mens rea is not the
sole pillar of criminal responsibility, but is compounded by physical requirements such as
causation. A requirement within mens rea of foreseeability for the harm to the actual object
may be superfluous seeing as it is in any way a pre-requisite within the element of causation.
This is a strong objection. It is true that where foreseeabitlity is indeed a component of
causation, a conviction will depend on foreseeability whether or not it is required as part of
the doctrine of transferred malice. It follows that by preferring foreseeability over remoteness
and over immediacy and physicality as the qualifier of transferred malice we shift the
discussion of this limit of the doctrine from the realm of mens rea to that of causation within
the actus reus. But an important caveat is in order. Causation is sought after in respect to the
consequences and thus is only required for consequential offences. Transferred malice applies
in respect to the circumstances (more particularly, the object of the offence), and therefore
may also be pertinent to conduct offences, such as rape or threats, that do not require proof of
causation. This means that, at least as to offences that are not conditioned upon the causing of
consequences, the requirement of foreseeability within the doctrine of transferred malice is
not redundant. It is true that the separation into categories of consequential and conduct
offences may simply reflect lawmakers’ choice of the theory of action that characterizes their
preferable mode of definition. However, currently this dichotomy exists in law and leaves
room for the requirement of foreseeability within the doctrine of transferred malice.
4. Conclusion
The assertions made in this article do not aim to form a comprehensive account of transferred
malice. Rather, my aim in articulating them was more specific and twofold: (1) in face of the
diversity of views advocating the eradication of transferred malice, I outlined the narrow
provinces where that doctrine should still thrive (discussed in part two); and (2) reflecting on
the different criteria proposed to restrict the implementation of transferred malice, I
endeavored to assess which of them proves more persuasive (taken up in part three).
81
Simester et al (n 10) 166.
29

I have drawn three conclusions. Firstly, the common view that differentiates between
the implications of bad aim and mistaken identity is misguided. Secondly, in both instances,
transferred malice should be employed in cases of cross border between offences that differ
only in the subjective or culpability-based social harm that underlie them, and where the
alternative of attempt liability is not available. Finally, the doctrine’s application is best
curtailed by the neglected qualifier of reasonable foresight.
30

Limit of Transfer of Malice

Uploaded by

Copyright:

Available Formats

You might also like

Limit of Transfer of Malice

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Limit of Transfer of Malice

Uploaded by

Copyright:

Available Formats

The Limits of Transferred Malice

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

Electronic copy available at: https://ssrn.com/abstract=2393858

You might also like