Transferred mens rea

Produced in partnership with Christopher Sykes of 33 Chancery Lane

Practice notes

In-house

Transferred mens rea

Produced in partnership with Christopher Sykes of 33 Chancery Lane

Practice notes

In-house

The principle of transferred Malice/transferred Mens rea

The Supreme Court has stated that a better description for transferred malice might be ‘transferred mens rea’. The term ‘transferred malice’ has been described as ‘a Misleading ��’.

This article will refer to the principle as ‘transferred mens rea’. This principle becomes relevant where a criminal intention leads to an unintended outcome or harm. It may apply provided that the outcome or harm is the same kind as intended, even if the actual victim is not the same as the intended victim.

Latimer exemplifies the basic principle. D tried to assault V with his belt. He missed V and accidentally hit V2. D was found guilty of assault despite not having intended to hit V2. This reasoning was later applied in Mitchell, in which D assaulted V causing him to fall on V2. V2 was elderly and suffered a broken bone that led to her death in hospital. D was convicted of Manslaughter despite having had no intention to assault V2. The court held that it was not

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Christopher Sykes

Barrister, 33 Chancery Lane

Christopher acts for the prosecution and defence in cases of business crime and investigations. He has been instructed by the FCA as junior and disclosure counsel in complex prosecutions. He has gained experience of investigations through his work with the Enforcement Decision Making Committee of the Bank of England and the Fraud Investigation Service of HMRC. He has been led by senior members of Chambers in defending private prosecutions for fraud and in confiscation proceedings. He has defended individuals facing allegations of civil contempt in the High Court for breach of freezing injunctions. He is panel counsel for the SFO.

Alongside his business crime practice, Christopher offers extensive experience and expertise in the practice area of professional discipline and regulation. He is frequently instructed by the GDC to present the case in substantive, interim, and High Court matters. He is regularly instructed to act for the defence by the CSP. Christopher gained in-house experience of regulatory enforcement through his secondment as a case presenter for the GOC.

Christopher brings to these roles the experience gained as a criminal advocate appearing in the magistrates’ courts, Crown Courts, and Court of Appeal. He has secured successful outcomes for clients facing the most serious criminal allegations, including kidnap and terrorism.

Christopher contributed to the drafting of “The UK Anti-Bribery Handbook” (Bloomsbury, 2022) and Blackstone’s Criminal Practice 2020.

Jurisdiction(s):

United Kingdom

Key definition:

Malice definition

What does Malice mean?

Malice is not to be understood in terms of “wickedness” but in terms of intention to cause harm or at least actual foresight that harm may result.

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