Recycled Malice

Findlay Stark

Like many common law concepts, ‘transferred malice’ tends to be explained through examples, rather than via a firm definition. Indeed, it does not even have a consistent label, being referred to, variously, as ‘transferred fault’ and ‘transferred intent’.

If you can’t beat ’em, join ’em. The basic structure of a transferred malice case is as follows:

Anujay throws a heavy object at Belinda, intending to cause her serious injury. The object misses Belinda, and hits Carlos, who suffers a serious injury.

As everyone knows, ‘core’ crimes tend to be made up of an actus reus and mens rea. Assuming this incident occurred in the jurisdiction of England and Wales, Carlos has suffered the actus reus of being caused grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. But section 18 also requires mens rea: the defendant must be proved to have intended to cause grievous bodily harm to a person. The idea underlying transferred malice is that Anujay cannot seek to escape conviction for the section 18 offence on the basis that he intended to hit Belinda, not Carlos. If we take transferred malice seriously (and more on that at the end of this post), by dint of legal fiction Anujay’s intention to injure Belinda ‘transfers’ to Carlos, and so Anujay is found to have the requisite mens rea to found a conviction.

So far, so good, one might think. The main argument put forwards for transferred malice (if this counts as an ‘argument’) is that it chimes with common intuitions about what should happen in cases like Anujay’s. It would, the argument goes (as ever, without empirical evidence), offend a laypersons’s sense of justice if the result of this debacle was that Anujay was acquitted of an offence against Carlos, merely because he was trying to hit someone else.

Intuitions no doubt differ on this point, and there are various other problems with transferred malice, which have been explored by criminal theorists (most prominently, in recent times, Shachar Eldar). I will mention some of these problems here, but I am doing so in order to show that an aspect of this debate has been under-appreciated: recycled malice. I am going to argue that recycling malice is illegitimate, and this puts even more pressure on those who defend even basic transfers of malice.

What is ‘recycled malice’? It is a phenomenon that arises (as far as I can discern) in most common law jurisdictions. These systems do not only allow a prosecution for a completed crime on the basis of transferred malice, they also allow a prosecution for the attempted crime against the intended target. In other words, Anujay’s intention to cause grievous bodily harm to Belinda can found both a completed section 18 offence against Carlos, and an attempted section 18 offence against Belinda. The intention can be ‘used’ multiple times.

Once we notice this phenomenon of recycled malice, a question arises over its limits in theory. Consider a real case that arose in Leicester, England in 2018 (see BBC News, Leicester Explosion: Three Men Jailed for Murdering Five People). Arkan Ali, Hawkar Hassan and Aram Kurd conspired to blow up their convenience store to claim insurance money. They did not trust Viktorija Ijevleva, who knew of the plan, to keep quiet about it. The conspirators arranged for Ijevleva to be in the premises when they exploded. Ijevleva was killed in the blast, as intended. The explosion was, however, so violent that it destroyed the residential property above the shop. Inside were Mary Ragoobar, her sons Shane and Sean, and Shane’s girlfriend Leah Reek, who was visiting for the evening. All four were killed.

Ali, Hassan and Kurd were convicted of five counts of murder.

If the intention to kill Ijevleva can be recycled, then the conspirators are straightforwardly liable for murder in relation to every death their actions caused. If, however, no such recycling can take place, and is ‘spent’ if the intended purpose is achieved, the conspirators’ multiple convictions for murder are more problematic. Under the law of England and Wales, the defendants would need to be proved to have intended to kill or cause grievous bodily harm to the occupants of the residential property, and that would seem unlikely. They presumably did not view the occupants’ deaths as a success condition of their insurance scam (compare Ijevleva’s death). That would appear to leave the prosecution having to sustain a difficult argument to the effect that it was virtually certain that the blast would at least seriously injure the occupants, and that the conspirators appreciated this fact. Otherwise, the prosecution’s main arguments would be that the defendants should be liable for the manslaughter of the occupants of the flat, perhaps on the basis of an unlawful and dangerous act, or on the basis of gross negligence. Such manslaughter convictions appear likely to be returned.

So, should the law allow such recycling of malice? I think that the answer to this question is ‘no’, and this gives us further reason to doubt the basic idea of ‘transfers’ of malice.

One argument for transferring malice is that, if we require separate mens rea to be proved in relation to each and every person who is affected by the defendant’s action, the defendant will benefit illegitimately from ‘luck’. Let’s assume that Anujay was unaware of the risk of Carlos’s presence in the basic example given above: it was late, it was dark, and Anujay had carefully chosen the place to attack Belinda so as to avoid witnesses. In that case, if Anujay’s intention to cause serious injury to Belinda cannot be ‘transferred’ to Carlos, Anujay appears to be off the (criminal law) hook for injuring Carlos. He will be liable only for the attempted offence against Belinda, and because of a reason (missing Belinda) that does not rebound to his credit.

It might be thought that this same logic can justify recycling malice: Anujay should be held to account for all of the harm he has caused and all of the harm that he tried to cause, because otherwise he will benefit from ‘luck’ illegitimately. But this view is, at best, mysterious, if not entirely question-begging.

It might be thought that this luck-based view would be stronger in cases where there is no attempts liability at issue. Most common law systems require that the defendant intended to bring about the relevant result in attempts. Consider if Derek is practising archery in his back garden and is aware that his neighbour Ekow likes to sit in his garden, and that a stray arrow could hit Ekow and seriously injure him. Derek fires, and let us assume that he lacked adequate justification for doing so without checking further regarding Ekow’s whereabouts. This would render Derek reckless regarding causing serious injury to Ekow, the mens rea of the offence of malicious wounding under section 20 of the Offences against the Person Act 1861. In the event, a loose arrow hits Finbarr, who – unbeknownst to Derek – was repairing Ekow’s satellite dish, causing him serious injury. Here, if we do not ‘transfer’ Derek’s recklessness regarding harm to Ekow to Finbarr, we genuinely seem to have an instance where Derek has no criminal liability. (There is no generalised offence of reckless endangerment in England and Wales.) Why should Derek benefit in this manner from the ‘lucky’ fact that the ‘wrong person’ got hit? Even if this argument convinces someone to allow transfers of malice, it is again not clear why it should allow the recycling of malice. If the idea is that it would be unfair if the defendant was not convicted of ‘something’, fairness is achieved by one conviction.

It might be objected that this conclusion is too fast. Return to Anujay’s case. Say that he is not convicted of both the attempted section 18 offence and the completed section 18 offence. He is instead found liable simply for the attempted offence against Belinda. In England and Wales (as in many other jurisdictions), attempters tend to receive lower sentences than those who succeed in bringing about harm. Why should Anujay benefit from this luck in sentencing? This is a good question, but it is not apparent that ‘transferring’ malice is the most straightforward answer to it. This is for two reasons. First, it would be much more straightforward to argue (as many criminal theorists have in the past) that the disparity in sentencing between attempters and those who cause harm does indeed overprivilege luck, and so should be removed. The result of that change would be that sentencing for attempts and completed offences would be identical, reflecting the defendant’s culpability.

We risk now venturing down the familiar intellectual rabbit hole that is the debate concerning the role of culpability and luck in legitimate sentencing practices. It appears to me, however, that it is that warren we must enter, not the fiction of transferred fault, never mind recycled fault.

Secondly, if one thinks (on the basis of some thesis about luck’s role in just sentencing) that Anujay should receive the sentence for a ‘completed’ section 18 offence, rather than the attempt against Belinda, then this might well justify ‘transferring’ fault, but it does not justify ‘recycling’ it. For recycling his intention in this way punishes him in excess of his culpability, which is not what (as far as I know) anybody argues for in sentencing theory. Instead, those who ‘discount’ sentences for attempts tend to recognise that they are arguing for the under-representation of culpability in a sentence.

That cannot, however, work if we begin recycling malice. This is because it seems inevitable that intending to seriously injure two people is more culpable than intending to injure one person. On the same score, intending to kill five people is more culpable than intending to kill one. Defenders of recycled malice need to provide an argument to the contrary, and one is awaited.

The arguments above suggest that culpability is a dead end for those who wish to defend the recycling of malice. Perhaps, then, our focus ought to be on the marking of harms and wrongs. Carlos is certainly harmed by Anujay, as were the persons killed by the callous plan executed by Ali, Hassan and Kurd. Convicting these defendants of completed offences against those upon whom these harms fell marks these out formally. The difficulty with any such argument is that the criminal law is not generally concerned with bare harms. It is instead concerned with wrongs.

Did Anujay ‘wrong’ Carlos? One of the worst kept secrets in modern criminal law theory is that nobody is sure what ‘wrong’ means, and what its relationship is with the concept of ‘culpability’. Often, the boundaries of these terms are left unclear, or are at best stipulated. One can certainly imagine conceptions of wrongdoing that would cover many of the relevant cases. Consider, for instance, if wrongdoing simply involves acting contrary to the balance of reasons that bear upon one in a given situation. One could say that Anujay did have a convincing reason not to throw the object: he might hit Carlos. Such accounts of wrongdoing (Kim Ferzan once offered me the label ‘wrongs-lite’) tend to be rejected, however, not just in criminal law but also by theorists of tort law. Tort lawyers have spent more time on this point. For instance, John Oberdiek rejects this conception of wrongdoing because it labels people as wrongdoers who had no (or at least no reasonable) epistemic access to the reasons that bore upon them at the time of acting. Imagine, for example, if it was not reasonably foreseeable that Carlos would be hit – he was asleep in some long grass, it was a remote area, etc. On Oberdiek’s account, if Anujay had no reason to suspect that Carlos was there, then describing him as ‘wronging’ Carlos is, well, wrong. Anujay perhaps acted contrary to the balance of reasons, but did not thereby engage in wrongdoing.

Of course, in most real life cases of transferred malice, it is readily foreseeable that the harm that befell the person could result from the defendant’s conduct. This can, then, found a duty not to carry out the conduct that led to the relevant harm, and a failure to comply with that duty could be the foundation of a finding that the defendant wronged the person they harmed, even if they did not intend to, etc. But this seems to lead us to the conclusion that, if harm to Carlos was reasonably foreseeable, Anujay was negligent with regard to causing that harm. (There might be more to negligence, particularly in criminal law, but I do not have space to consider that here.) Transferred malice does not allow the law to mark that wrongdoing, however. It instead takes the intention regarding Belinda and transfers it to Carlos, inflating Anujay’s culpability. (I do not have space to explain my account of the relationship between different mens rea states here, but believe that those who intend to do X are more culpable with regard to X than those who unreasonably fail to appreciate the risk that X might result from their conduct.) Depending on one’s conception of wrongdoing, this inflation can result in the misdescription of the very wrong against Carlos: if negligent wrongdoing is different, as a form of wrongdoing, from intended wrongdoing, then transferred malice has unfairly labelled Anujay’s conduct. Some criminal theorists do think that there is an important distinction at work here: Anujay attacks Belinda, but at most endangers Carlos, and that distinction in the structure of Anujay’s conduct is, for theorists such as Antony Duff, worth marking.

Defenders of transferred malice tend to lack convincing answers to any of these points. Matters get worse when we contemplate the recycling of malice. For instance, in the Ali, Hassan and Kurd case, four negligently (or perhaps recklessly) caused deaths become described as four murders. This massively inflates the defendants’ culpability, far in excess of an alternative finding that they murdered Ijevleva and were liable for manslaughter in relation to the occupants of the flat (a conclusion that seems readily reachable). It is at least plausible that murder and manslaughter are different ‘wrongs’.

The conclusion that I draw from the above is that the most obvious arguments for recycling malice are unconvincing. We should not recycle malice, despite the fact that in common law jurisdictions we frequently do, at least to the extent that defendants are found liable for attempts and completed offences in basic transferred malice cases, and frequently recycling in the manner employed in Ali, Hassan and Kurd is permitted.

But if I am right, and the law is wrong, we seem to be presented with a rather stark choice: we mark the offence that the defendant was trying to commit, or we mark the offence that the defendant perpetrated the actus reus of (once, assuming he had one target in mind). The legal philosopher Patrick Tomlin has pointed to the oddity of concluding, in the face of this choice, that the criminal law should focus on Carlos in Anujay’s example. This removes Belinda, the intended target, entirely from the criminal law’s authoritative description of what happened. It does so, as well, in a way that results in what strikes me as a completely unnatural description of what happened. It is submitted that Tomlin is right to be sceptical of this being the ‘right’ answer to basic cases of transferred malice. This is why I think that, if recycling malice is illegitimate, the case for bare transfers of malice is significantly weakened.

A substantial number of criminal law theorists will agree with this conclusion, but not because they want to adopt the so-called purist perspective that every actus reus should have specific mens rea proved in relation to it. A purist would hold that Anujay is liable for an attempt against Belinda, but not hold him liable for any offence against Carlos unless independent mens rea could be proved (perhaps recklessness, but that will depend on the facts, and in any event result in conviction for a less serious offence in England and Wales).

Another school of thought, typically referred to as abolitionism, holds that there is no ‘doctrine’ of transferred malice. Instead, the law simply asks, whenever it identifies an actus reus, whether the defendant had the relevant mens rea. Section 18 of the Offences against the Person Act 1861 requires the defendant to cause grievous bodily harm ‘with intent to do some grievous bodily harm to any person’. Anujay did intend to cause grievous bodily harm to ‘a person’, and so he is liable.

We might think that abolitionists, having rejected ‘transfers’ of malice, could also deny that the phenomenon of ‘recycled’ malice exists. Anujay also perpetrated the actus reus of an attempted section 18 offence, and the mens rea is once again an intention to cause grievous bodily harm to any person. Anujay had that mens rea, and so he is liable. And so on.

The abolitionist could also adopt this approach to explain the multiple murder convictions in Ali, Hassan and Kurd. The defendants caused the death of every relevant individual (the actus reus of murder), and when they performed the act that caused death, they intended to kill a human being (one form of mens rea for murder). In relation to each case, then, we have a marriage of appropriate actus reus and mens rea, and a conviction is unproblematic.

This brand of abolitionism does have a refreshing simplicity to it. Indeed, before I began thinking about recycled malice, I thought I was an abolitionist of this sort. But the difficult questions for defenders of recycling malice are also difficult for such abolitionists. Does the repeated ‘use’ of the ‘same’ mens rea not massively overinflate the defendant’s culpability, and permit disproportionate sentencing? Does it not misdescribe the kind of wrong done to each party? Ultimately, I think that these challenges to recycling malice are just as damaging for this kind of abolitionist.

Of course, as the editors pointed out to me, an abolitionist may refuse to allow multiple convictions in such scenarios. They would hold that, once Anujay’s intention to cause serious harm to one person is ‘spent’, it cannot support further convictions. This type of abolitionist shares the dilemma of a defender of transferred malice: why prioritise Carlos over Belinda? What reasons does the criminal law have to warp its authoritative description of what happened and remove Belinda entirely from the narrative? I am less than sure there is an answer to this question that does not boil down to a concern about sentencing practice (and await with nervous anticipation defences of ‘single use abolitionism’ in the comments). As suggested above, I suspect that underlying such concerns is a more general worry about sentencing practices, and the role of culpability and luck therein. On this score, ‘single use abolitionism’ would seem to be a way of avoiding a difficult, more general, debate, rather than a solution to a particular problem.

After much internal wrangling, then, I am now a ‘purist’ (better label for the group to be determined). This means that I would convict Anujay of an attempted section 18 offence in relation to Belinda and, unless he was at least reckless regarding the causing of some harm to Carlos, no crime under English and Welsh law. (I would have my reservations about the ‘constructive’ nature of such liability, and prefer him to have to be at least reckless regarding serious harm to Carlos.) I would convict Ali, Hassan and Kurd of murder in relation to the killing of Ijevleva, and manslaughter (presumably by gross negligence) in relation to the occupants of the flat.

I will gleefully take advantage of space constraints and not suggest appropriate sentences.

This is an area replete with intuition-based judgments, and ultimately ‘knock down’ arguments should not be expected. It is nevertheless suggested that the puzzle of whether malice can be recycled gives yet further reason to reject both transferred malice and ‘abolitionism’. I should record my thanks to the editors for their probing comments on a draft of this post, and to Shachar Eldar, Henry Mares, Alex Sarch and Patrick Tomlin for previous helpful discussions of the ideas discussed above.

A full version of the argument presented in this blog post will appear in the Cambridge Law Journal in due course.