Transferred malice and transferred defences: A critique of the traditional doctrine and arguments for a change in paradigm

Abstract

The aim of this paper is first to focus on analyzing the existing judicial authorities on the matter of transferred malice and the transfer of defenses as well as the academic commentary, firstly within English law and secondly in comparative law research. It will then try to address the underlying structural issues of the transferred malice doctrine to find out whether the current English and Welsh approach is defensible or in need of rethinking: in other words, whether the stress on the idea of a "transfer" is really appropriate and helpful or rather misleading, and what the consequences of a departure from the idea of a transfer of intent are for the transfer of defenses. The human rights impact of the Human Rights Act 1998 and the state's corresponding duty to protect the rights of its citizens by means of an adequate provision and application of the criminal law will come into play as well. Given the additional issues surrounding independent but contributing human agency, this paper will not address the transferred malice scenarios that arise in complicity cases.