Criminal Law and The Life of the Unborn Child - MPR Solicitors secure acquittal of father charged with assault to procure a miscarriage

The question: ‘How far should criminal liability extend to protect the life of the unborn child’ has generated debate equally amongst laypersons and lawyers, culminating in the Court of Appeal certifying a point of law for review by the House of Lords. The purpose of this article is to consider if a Defendant can be indicted for the offence of Murder when he assaults the Mother resulting in harm to her unborn child.  The answer to this question is inextricably linked to understanding when human personhood begins?

 Is the Foetus a Legal Person?

The death of the Foetus can be brought about by trauma to the mother. The common example arises in a domestic violence context where Person A inflicts harm on Person B knowing that Person B is pregnant. As a result of this physical violence the foetus is terminated or born prematurely causing death. The House of Lords was asked to consider a very similar factual scenario in the case of Attorney General’s Reference No. 3 of 1994

In that case the child’s mother was pregnant when she was stabbed by the Defendant. The Defendant knew that she was pregnant when he stabbed her, and he was the father of the child. There were several stab wounds, one of which was to the left lower abdomen. It punctured the uterus and entered the abdomen of the foetus, but the injury which the foetus sustained was not the cause of the child’s death. The mother made a good recovery from her injuries. But about two weeks after the stabbing, and without further injury, she went into premature labour and gave birth to the child. The child survived for 121 days. The cause of death was the failure of her lungs to perform satisfactorily due to her premature birth. The injuries to her abdomen had been repaired under general anesthetic, and the evidence was that they made no direct contribution to her death. Her premature birth was caused by the injuries which her mother received when she was stabbed by the Defendant.

In that case it was agreed that the unborn child was not a person in law until the umbilical cord was severed and it became a separate entity from its mother. Lord Mustill concluded that that until the child had been born alive and acquired a separate existence she could not be the victim of murder.  Lord Mustill went on to consider the doctrine of transferred malice which can arise where a Defendant intends serious harm to one person (the Mother) but an unintended person dies (the Child). However, he decided that the doctrine of transferred malice did not fit the facts of the case as it would require a double “transfer” of intent: first from the mother to the foetus and then from the foetus to the child as yet unborn. This was rejected as going ‘too far’ by his Lordship.

Whilst their Lordships rejected liability for murder on the facts of the case, the door has been left open for alternative remedies based on “unlawful act” manslaughter and intentionally procuring an abortion, which we shall go on to consider.

Manslaughter – A ‘Dangerous Act’ to a Mother Culminating in the Death of the Child

In that case, Lord Hope considered whether a Manslaughter charge could be appropriate on the facts on the case. He adopted a wide approach in relation to the offence of Manslaughter. He stated that the requisite intention is an intention to do an act which is unlawful and dangerous. In this case the act which had to be shown to be an unlawful and dangerous act was the stabbing of the Childs mother. As the Defendant intended to commit that act, all the ingredients necessary for mens rea in regard to the crime of manslaughter were established, irrespective of who was the ultimate victim of it. The fact that the child whom the mother was carrying at the time was born alive and then died as a result of the stabbing completed all that was needed for the offence of manslaughter to be charged.

Therefore, it follows that a Defendant may be at risk of a charge for the offence of Manslaughter if his primary act to the mother is considered ‘dangerous’.

Procuring an Abortion – Protection for the Foetus in Utero?

The remedies considered so far do nothing to protect the foetus when death results in utero, as the foetus is not considered a person. The CPS prosecution policy is decidedly in favour of a prosecution particularly in a domestic violence context where the foetus is terminated. The CPS guidance lists a number of scenarios and possible charges in a domestic violence context. This includes a charge of assault with intent to procure a miscarriage where violence results in a miscarriage.

At MPR Solicitors, we were retained to defend a father and family man charged with two counts of assault to procure a miscarriage, on two separate dates. This case was ‘ticketed’ to a special criminal judge senior enough to try a murder case, which confirms that in law the protection of the unborn is sacrosanct and of the most serious type of offence. If convicted our client faced a custodial sentence. The legislation states:

Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life . . .

It was alleged that our client had punched the complainant to cause her to miscarry. His hands came within the definition of an ‘instrument or other means’.  He vigorously denied the allegation. He asserted that he had neither assaulted the complainant nor caused her to miscarry.

The complainant’s account was full of contradictions. Despite this, the CPS pursued the charge of assault with intent to procure an abortion.

MPR Solicitors commenced a highly pro-active defence to prepare the case for trial. Nothing was left to chance and we also kept pushing the Prosecution for disclosure. We obtained a download of text messages to show that the complainant had an ulterior motive to lie: she wanted to obtain housing and immigration status by using her position as the victim of domestic violence. These messages were put to her in cross examination. She had no explanation for them. We obtained statements of the client’s good character, and drew the jury’s attention to the unreliability of the witness given her inconsistent account of the events and to the credibility of our client. After a trial lasting several days, where our client gave evidence, the jury acquitted him of all counts. The client was now in a position to properly contest family law proceedings which prevented him from having contact with his children. As a father, the idea of harming his unborn child was inconceivable, and the fight to prove his innocence affected his physical and mental wellbeing. He was eternally grateful for the efforts of his lawyers.

At MPR Solicitors, our experienced criminal defence solicitors will guide clients through every stage of the trial process and case preparation. In sensitive cases, we act with empathy and compassion whilst retaining that professionalism to ensure that the case is being prepared properly and that our clients are receiving intelligent strategic advice.