B, Re, (1997) 220 N.R. 1 (HL)
| Case Date | July 24, 1997 |
| Jurisdiction | Canada (Federal) |
| Citations | (1997), 220 N.R. 1 (HL) |
B, Re (1997), 220 N.R. 1 (HL)
MLB headnote and full text
Attorney General's Reference No. 3 of 1994
Indexed As: B, Re
House of Lords
London, England
Lord Goff of Chieveley, Lord Mustill, Lord Slynn of Hadley,
Lord Hope of Craighead and Lord Clyde
July 24, 1997.
Summary:
M, a young woman, was pregnant with B's child. Between 22 and 24 weeks of gestation, B quarrelled with M and stabbed her in the face, back and abdomen. M was admitted to hospital. She was later discharged still carrying the baby. Seventeen days after the incident, the baby was born. The baby was grossly premature. The baby lived for 121 days before dying from broncho-pulmonary dysplasia from the effects of the premature birth. The premature birth was caused by the stabbing. B was charged with wounding the mother with intent to cause grievous bodily harm. B pleaded guilty and was sentenced to four years' imprisonment. Following the death of the baby, B was charged with murder.
The trial court acquitted B on the charge of murder and of manslaughter. The trial court held that there was no relevant actus reus, because the foetus was not a live person and because the cause of death was the wounding of the mother, not of the baby. The court also found that there was no mens rea in that when B stabbed the mother he intended to harm only the mother, not the foetus. The Crown referred the matter to the Court of Appeal for review on a point of law:
1) Subject to proof of requisite intent, whether the crimes of murder or manslaughter could be committed where unlawful injury is deliberately inflicted to a mother carrying a child in utero where the child in subsequently born alive, enjoys an existence independent of the mother, thereafter dies and the injuries inflicted while in utero either caused or made a substantial contribution to the death.
2) Whether the fact that the death of the child is caused solely as a consequence of injury to the mother rather than as a consequence of direct injury to the foetus can negative any liability for murder or manslaughter in the circumstances set out in 1).
The Court of Appeal of England, in a decision reported [1996] Q.B. 581, answered "Yes" to the first question and "No" to the second question. B appealed.
The House of Lords allowed the appeal in part by holding that the accused could be guilty of manslaughter but not of murder. In regard to manslaughter, their Lordships answered "No" to the second question.
Criminal Law - Topic 1263.3
Offences against person and reputation - Murder - General principles - Foetus - A young woman (the mother) was pregnant - During a quarrel, the father of the baby stabbed the mother in the face, back and abdomen - The mother was hospitalised and later released - Seventeen days following the attack, the baby was born grossly premature - The baby died after 121 days - The death was the result of the premature birth which was caused by the attack - The father was convicted and sentenced for the attack on the mother - The issue arose as to whether the father could be convicted of either murder or manslaughter in regard to the baby when he did not intend to harm the baby and where the baby's injury in the attack was not a cause of its death - The House of Lords ruled that the father could be convicted of manslaughter but not murder.
Criminal Law - Topic 1263.3
Offences against person and reputation - Murder - General principles - Foetus - A young woman (the mother) was pregnant - During a quarrel, the father of the baby stabbed the mother in the face, back and abdomen - The mother was hospitalised and later released - Seventeen days following the attack, the baby was born grossly premature - The baby died after 121 days - The death was the result of the premature birth which was caused by the attack - The father was convicted and sentenced for the attack on the mother - The issue arose as to whether the father could be convicted of either murder or manslaughter in regard to the baby - The House of Lords, per Lord Hope of Craighead, observed that there was no doubt that the father would not have been guilty of either murder or manslaughter if the baby had been stillborn - See paragraph 59.
Criminal Law - Topic 1310
Offences against person and reputation - Manslaughter - General - A young woman (the mother) was pregnant - The father of the baby stabbed the mother in the face, back and abdomen - Seventeen days following the attack, the baby was born grossly premature - The baby died after 121 days - The death was the result of the premature birth which was caused by the attack - In determining whether the father could be convicted of manslaughter in the death of the baby, the House of Lords stated that "[t]he only questions which need to be addressed are (1) whether the act was done intentionally, (2) whether it was unlawful, (3) whether it was also dangerous because it was likely to cause harm to somebody and (4) whether that unlawful and dangerous act caused the death" - See paragraph 75.
Criminal Law - Topic 1317
Offences against person and reputation - Manslaughter - Foetus - [See both Criminal Law - Topic 1263.3 ].
Cases Noticed:
R. v. Cunningham, [1982] A.C. 566 (H.L.), consd. [paras. 2, 59].
R. v. Mitchell, [1983] Q.B. 741 (C.A.), apprvd. [paras. 6, 69].
R. v. Vickers, [1957] 2 Q.B. 664 (C.C.A.), refd to. [para. 15].
Hyam v. Director of Public Prosecutions, [1975] A.C. 55 (H.L.), refd to. [para. 15].
R. v. Pembliton (1874), L.R. 2 C.C.R. 119, refd to. [para. 16].
R. v. Latimer (1886), 17 Q.B.D. 359, refd to. [para. 16].
R. v. Church, [1966] 1 Q.B. 59 (C.C.A.), consd. [paras. 19, 67].
R. v. LeBrun, [1992] Q.B. 61 (C.A.), refd to. [paras. 19, 68].
R. v. West (1848), 2 Car. & Kir. 784, refd to. [para. 20].
R. v. Senior (1832), 1 Mood. C.C. 346, refd to. [para. 20].
Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, refd to. [para. 26].
Director of Public Prosecutions v. Beard, [1920] A.C. 479, refd to. [para. 30].
R. v. Saunders and Archer (1573), 2 Plowd 473, refd to. [para. 33].
Gore, Re, 9 Co. Rep. 81, refd to. [para. 33].
Burton v. Islington Health Authority, [1993] Q.B. 204 (C.A.), refd to. [para. 39].
R. v. Kwok Chak Ming (1963), H.K.L.R. 226, not folld. [para. 43].
R. v. Shephard, [1919] 2 K.B. 125, refd to. [para. 50].
McCluskey v. H.M. Advocate, [1989] S.L.T. 175, dist. [para. 66].
R. v. Larkin (1942), 29 Cr. App. Rep. 18, refd to. [para. 67].
Director of Public Prosecutions v. Newbury, [1977] A.C. 500 (H.L.), refd to. [para. 67].
R. v. Dalby, [1982] 1 W.L.R. 425, consd. [para. 74].
Statutes Noticed:
Criminal Justice Act 1972 (U.K.), sect. 36(1) [para. 53].
Homicide Act 1957 (U.K.), sect. 1(1) [para. 61].
Authors and Works Noticed:
Blackstone's Commentaries on the Laws of England (17th Ed. 1830), vol. 4, pp. 198 [para. 18]; 198 to 200 [para. 35]; 200, 201 [para. 26].
Coke, Sir Edward, Cokes Institute, Pt. III, c. 7, pp. 50 [paras. 17, 20]; 56 [para. 29].
East, Pleas of the Crown (1803), vol. 1, c. V, ss. 12 [para. 26]; 18 [para. 27].
Hale, Sir Matthew, History of the Pleas of the Crown (1736), vol. I, pp. 436 [para. 33]; 475 [para. 27].
Hawkins, Pleas of the Crown (7th Ed. 1795), vol. I, s. 51 [para. 28]; c. 31, 545 [para. 33].
Russell on Crime (4th Ed. 1865), pp. 739 [para. 33]; 740 [para. 27]; 742 [para. 28].
Russell on Crime (1855), p. 759 [para. 33].
Smith, J.C., and Hogan, B., Criminal Law (8th Ed. 1996), p. 338 [para. 18].
Stephen, James Fitzjames, History of the Criminal Law of England (1883), vol. 3, pp. 57, 58 [para. 30].
Stephen, James, Digest of the Criminal Law (1877), pp. xv [para. 25]; 138 [paras. 18, 51]; art. 230 [para. 26].
Williams, Glanville, Criminal Law - The General Part (2nd Ed. 1961), p. 184 [para. 37].
Counsel:
Simon Hawkesworth, Q.C., and Andrew Lees, for the appellants;
Robert Smith, Q.C., and R. Calvert-Smith, for the respondents.
Agents:
Sugare & Co., for the appellants;
Crown Prosecution Service, for the respondents.
This appeal was heard at London, England, on December 9 and 10, 1996, before Lord Goff of Chieveley, Lord Mustill, Lord Slynn of Hadley, Lord Hope of Craighead and Lord Clyde of the House of Lords.
On July 24, 1997, the judgment of the Lords was delivered and the following speeches were given:
Lord Goff of Chieveley - see paragraph 1;
Lord Mustill - see paragraphs 2 to 55;
Lord Slynn of Hadley - see paragraph 56;
Lord Hope of Craighead - see paragraphs 57 to 77;
Lord Clyde - see paragraph 78.
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