Transferred Recklessness?

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.

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Publication Details

Journal
The Journal of Criminal Law
Published
2025-08-01
DOI
https://doi.org/10.1177/00220183251365781
Primary Topic
Legal principles and applications
Type
article
Field-Weighted Citation Impact
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article

Transferred Recklessness?

Michael Bohlander
The Journal of Criminal Law
Legal principles and applications
article

Transferred Recklessness?

Michael Bohlander
article en

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.

The Journal of Criminal LawVol. 89(4)
Durham University (GB)
Peace, Justice and strong institutions
Openalex Percentile: Top 68%
Legal principles and applications
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Transferred Recklessness? — Michael Bohlander · The Journal of Criminal Law (2025) | TGRS Research Map | TGRS