Problems of Transferred Malice in Multiple-Actor Scenarios

Abstract

Transferred malice is a well-known concept that allows the extension of an offender's intent to a victim or object hit accidentally because the offender missed his intended target. Coupled to this doctrine is the annex doctrine of transferred defences which purports to transfer any defence the offender may have had vis-à-vis his intended victim to the actual victim. These doctrines cause systemic problems in single-actor scenarios, but those are increased exponentially if one applies them to multiple-actor situations, where the principles from Saunders and Archer apply which transpose the transferred malice doctrine to the secondary participant as long as the principal missed his target accidentally. The transferred defences doctrine has not been explored in these cases at all, as far as can be seen. This article examines the traditional doctrine and argues that based on a number of problematic constellations and a comparison to German law, it is in need of systematisation and clarification, and that the approach under Saunders and Archer is no longer fit for purpose.