Abstract
Transferred malice is a staple feature of English substantive criminal law. Mostly, the cases deal with transferred intent. However, there is an opinion in the academic literature which argues that the rule can also be applied to recklessness as a lesser form of mens rea in cases where another risk than that primarily foreseen by the offender materialises. The comment argues that this view has no grounding in historical case law, that in practice a transfer will rarely ever be needed in recklessness scenarios, and that an application to cases where the secondary risk was unforeseeable would not be in line with standard thresholds of criminalising behaviour.
Introduction
Transferred malice is a staple feature of English substantive criminal law. Mostly, the cases deal with transferred intent: D intends to shoot V1 dead but she misses and hits V2 instead, who is standing next to V1. The intent to shoot V1 is transferred (better: extended) to V2; D after all remains liable for attempted murder of V1.
But can recklessness also be transferred? Simester and Sullivan's latest edition of their criminal law textbook seems to support that idea, giving the following example: This type of example is usually said to be governed by the “doctrine” of “transferred malice”. This “doctrine” is not confined to murder, or indeed intention. Imagine, this time, that Jane bears a grudge against Daniel. She throws a stone at the brickwork of his house, No. 6 King Street. She recognises that the stone may break one of Daniel's windows, although she does not intend it to do so. As it happens, the stone misses the windows of No. 6 but ricochets off the brickwork and breaks Pat's window at No. 8. Jane's recklessness is sufficient mens rea for criminal damage, and it corresponds to the (otherwise unanticipated) result: damage to Pat's property.
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The textbook does, however, not provide any authority for this proposition. This short doctrinal comment will try to find out whether a) any case law authority under the law of England and Wales would justify such a conclusion as being good law, and b) whether and in which circumstances recklessness would actually need to be transferred.
The case law
The short answer to question a) above is ‘no’. The standard cases cited in this context, i.e. Pembliton, 2 Latimer, 3 AG's Ref No. 3 (1994), 4 Mitchell 5 all deal with scenarios of intent. A review of the prior cases cited in those decisions – Gore, 6 Hunt 7 , Hewlett, 8 Saunders and Archer 9 –- shows that there was no authority in the English and Welsh case law at the time that would have supported the assertion that recklessness can be transferred. The same applies to less prominent cases: A BAILII 10 search in March 2025 with the search term ‘'transferred malice’ AND reckless*’ 11 resulted in nine relevant cases which included some of the above, and also Monger, 12 Clarke, 13 Katsonis, 14 Jones, 15 and Haystead 16 . None of them support the alleged rule. Modern Scottish case law (Roberts 17 ) would suggest an identical result within the context of Scottish substantive criminal law.
However, a close reading of Pembliton leads to the conclusion that it would have been open to the jury to find the defendant guilty of reckless criminal damage, had the charge in the indictment been left to them in such a form. Since the charge as left to the jury was based on intentional commission, they did not have that option and had to negate intention – the matter thus apparently turned more on a procedural question rather than a question of substantive law.
The need for a transfer
One might almost say that the discussion of recklessness appears to suffer from a certain kind of myopia: It seems as if D could only ever realise one risk at a time and decide to engage in it. That is not a true depiction of life. Pembliton itself is an example in point: D can have intent for/foresight of risk x, while simultaneously foreseeing risk y. That thought, it is submitted, also applies to the above example from Simester and Sullivan and makes a deployment of the transferred malice rule unnecessary: Since the stone bounced off the wall of No. 6 into the window of No. 8, it stands to reason that the latter must have been close enough to No. 6 that a stone could actually bounce into it at all. It was therefore arguably a clear risk that would have been obvious to Jane that a stone thrown at the wall of No. 6 might bounce off the wall and ricochet into any direction, and despite realising that risk she still proceeded to throw it. No transfer is needed. 18
However, to be more precise, the intent to throw the stone at the wall with the virtually certain consequence of at least some minor chipping of the brickwork – after all the stone had to be large enough and be thrown with some force to break a window – may in and of itself be Woollin 19 intent to cause criminal damage to the wall, so this might in reality actually be an example of proper transferred intent, not recklessness, as far as the damaged window is concerned.
The same reasoning would apply if the stone thrown by Jane bounced off the wall and hit Daniel in the face, who – clearly visible to Jane – was standing in front of his house near to where she threw the stone, with the stone taking out one of his eyes. Jane would under normal circumstances have foreseen the risk of a ricochet hitting and injuring him: 20 Causing (‘inflicting’) the serious harm is all that is needed for a s 20 offence, 21 as long as there is Cunningham 22 or R v G 23 foresight of some physical harm. 24 The liability might even rise to constructive manslaughter if Daniel had, for example, died from complications arising out of the eye injury, with the s. 20 offence being the unlawful dangerous act causing the death. No transfer of recklessness is needed, which would also violate the different-object rule in Pembliton in any event. Thus, if charged properly in the indictment, no gaps in liability arise.
The really interesting cases, when a transfer would be required, arise only if the secondary risk is unforeseeable to D who is acting recklessly with regard to the primary risk. To give a plain example: 14-year-old D is playing in the woods near the remains of an old hut that has been empty for years and has mostly fallen down, but is still private property, as D knows. He has been there many times before and never met anyone. He puts a few empty tins on a tree stump near the last remaining window pane and starts throwing stones at them. Before he begins, he has a look around the nearby woods and in the hut to make sure nobody is there. When he throws the first stone at the tins, it ricochets off the tree stump and crashes through the window. Unknown to D, however, a thief had deposited the loot from a recent burglary in the hut the day before, including a highly valuable 17th-century porcelain vase, which breaks when the stone hits the bag in which it is hidden. The bag had been camouflaged with leaves, so even his look around the hut could not have made D aware of its presence.
D is clearly liable for reckless criminal damage regarding the window. He is only liable for the damage to the vase if his recklessness could be transferred to it. The general evidential rule of inference that there may always be other breakable things – or indeed people – behind a window and that hence damage to those can already be covered by the primary risk recklessness does not apply here: There was no reasonable cause for D to think that any breakable property of someone else would be in the hut, especially because he had actually had a look. He took all necessary precautions to avoid a secondary risk and it might be said that this even exempts him from any liability for negligence for the secondary result. There appears to be no discernible reason or justification under traditional theories and policies of punishment to criminalise this kind of behaviour. The usual pragmatic recourse to the safety-valve of prosecutorial discretion should find nothing to exercise any discretion about: There is no offence.
Conclusion
The transferred malice rule, while still part of the law of the land, is somewhat of a doctrinal anachronism these days and should not be extensively applied even in cases of intent; 25 hence there is no discernible public policy reason to extend its application even to cases of recklessness where the secondary risk was unforeseeable to D and where no liability for a negligent offence exists. This applies even more so if the liability for the actual serious result is constructive and requires no mens rea at all – another archaic doctrinal rule arising from the concept of versari in re illicita (engaging in an unlawful act) – which like transferred malice itself should have long faced revision and repeal based on a principled modern understanding of blameworthiness in criminal law. Cases of recklessness and risk awareness are of a broader conceptual nature, in that they do not tie the offender's mens rea to a specific victim or object to begin with in the same way as cases of intent do. It is thus hoped that this brief examination has shown that the alleged rule that transferred malice is applicable to recklessness is unfounded as far as historical judicial authority is concerned, that in practice it will rarely be needed to begin with, and that in the cases of the unforeseeability of the secondary risk a transfer is not within acceptable boundaries of public policy arguments for criminalisation and leads to injustice.