Correct on the date of publication - 7 July 2025
Question:
What is the meaning of the term 'transferred malice'?
Answer:
The 'doctrine of transferred malice' provides that if a person mistakenly causes injury to a person or property other than the person or property which he intended to attack, he is guilty of a crime of the same degree as if he had injured his intended target. The harm done must be of the same kind as the harm intended for the doctrine of transferred malice to apply. For example -
- If A throws a knife at B, intending to cause B grievous bodily harm, but it misses and hits C, seriously injuring C, the offence under section 18 of the Offences Against the Person Act 1861 is still complete, as the doctrine of transferred malice applies.
- If a person throws a stone at someone else in a fight, misses and accidently breaks a window, they are not guilty of criminal damage to the window, because the harm that was caused was different to the harm that was intended, and therefore transferred malice cannot be applied. However, if the person foresaw the risk of smashing the window and took the risk, or the risk was obvious and he ignored the risk and carried on, then he could be guilty of reckless criminal damage. The doctrine of transferred malice would not apply in this case he is simply guilty of a different offence.
- If a man defends himself and by mistake kills an innocent bystander, he is not guilty of murder or manslaughter.
Any charge must be modified to specify at whom the intent was aimed, for example, 'A wounded C with intent to cause GBH to B'.
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