Criminal law – Causation

Where the actus reus of a crime includes specific consequences e. g. the crime of Murder – the consequence being death, it must be shown that the Defendant caused the victim’s death (although the defendant’s act need not be the sole or the main cause of death). A common approach of the courts has been to assert that causation is a question of fact to be answered by the application of common sense. The cornerstone of the law on causation is that the prosecution must show that the defendant’s act was the substantial and operating cause of the harm.

The term ‘substantial’ makes it clear that the defendant’s act need not be the sole cause but the act must be more than just a de minimis or a slight contribution to the result. Two matters need to be considered: (i) did the defendant in fact cause the victim’s death – that is factual causation and if so (ii) can he be held to have caused it in law- legal causation A) Causation in fact (but for test was established) R V WHITE To establish causation in fact, the “But for” Test established in R v White [1910] 2 KB 124 must be applied.

For the ‘but for’ test to uphold, it must be proved that, but for the defendant’s acts, the consequence would not have occurred. Note this is subject to the exception of innocent agents (which will be discussed later in the “parties to a crime” lecture. ) R v White [1910] 2 KB 124 The defendant placed poison in a glass containing his mother’s drink. She drank the contents of the glass, but died of heart failure before the poison could take effect. The defendant was charged with murder but convicted of attempted murder.

With regard to causation in fact, the defendant’s act in placing poison in his mother’s drink did not in any way cause her death thus it was not the factual cause of death. It is important to remember that the D is only liable under the criminal law if a wrongful act of his own causes the injury as if D’s conduct did not contribute to the result, or only contributed to it in a trivial way, then it could not be said that D caused the crime. – See Dalloway (1847) 3 Cox CC 27.

In Dalloway the accused was driving a horse and cart in a negligent fashion when a young child ran into the road ahead of him. Dalloway was unable to stop and the young child was killed. It was held that the jury should have been directed that if they found that even if Dalloway had been driving properly he would have still run over the child, then they must acquit him since the negligent way in which he was driving could not be said to be the legal cause of the child’s death.

To gain a conviction the prosecution would have to prove that it was the negligent element of the driving that was the cause of the child’s death not just simply the fact that the Dalloway was driving and that a child was killed with his cart. B) CAUSATION IN LAW – SUBSTANTIAL AND OPERATING CAUSE (R V SMITH) To establish causation in law, it must be proven that the Defendant’s act was the substantive and operating cause of the harm: R v Smith [1959] 2 All ER 193 In R v Smith, Smith had been convicted at court martial of the murder of another soldier by stabbing him.

The victim had been dropped twice while being taken to the medical reception station and was subsequently given treatment which was said to be incorrect and harmful. Lord Parker CJ, giving the judgment of the Court Martial Appeal Court rejected a contention that his death did not result from the stab wound. He noted in part: “ It seems to the court that, if at the time of the death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating.

Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. ” The decision of R v Smith was endorsed in the case of R v Malcherek, R v Steel [1981] 2 All ER 422 In the above case, Lord Lane CJ noted:

There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then the evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners, the fact that the victim has died despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.

” BREAKING THE CHAIN OF CAUSATION C) Intervening acts or events Sometimes, after the defendant’s act, there is an intervening act or event before the consequence occurs, which contributes to the result. We must therefore consider the legal effect of an intervening act, otherwise known in law as a “novus actus interveniens. ” (stops the chain of events) The defendant is not responsible for the result, oftentimes death of the victim, where the result is as a consequence of some subsequent act or event unconnected with the defendant’s act as evidenced in the case of R v White.

That is, if the result would have happened in just the same way even if the defendant had not done the unlawful act which is usually inflicting an injury to the victim, then the defendant would not be responsible. However, it is not every intervening act or omission of a causal nature that will relieve the defendant from liability for the result. Here are three different grounds on which the defendant might still be held to have caused the result: (i) Combination of causes.

If the result is caused by a combination of causes, and the defendant’s act remains “an operating and a substantial cause” SUCH AS CAUSATION IN LAW, then the defendant will still be liable. Case on point: R v Malcherek and Steel (1981) 73 Cr App R 173 (Judgment of Lord Lane CJ `referred to above) Facts noted below: R v Malcherek and Steel (1981) 73 Cr App R 173. – Medical treatment case The defendant stabbed his wife causing injuries that were so severe that she had to be placed on a life support machine. Doctors decided to switch off the machine after determining that the victim was “brain dead” and that there was no prospect of recovery.

The defendant was convicted of murder and appealed on the ground that the doctors had broken the chain of causation between the defendant’s attack and the death of the victim by deliberately switching off the life support machine. The Court of Appeal held, dismissing the appeal that the operating and substantial cause of death had been the original wounds inflicted by the defendant. (ii) Natural consequences of the Defendant’s act – Acts of Third Parties.

The victim may die as the result of some act or event, which would not have occurred (i) but for the act done by the defendant and (ii) which is a natural consequence of the defendant’s act – that is, it was foreseeable as likely to occur in the normal course of events. In such a case, the defendant will still be held to have caused the death. Human intervention, where it consists in a foreseeable act instinctively done for the purposes of self-preservation, or in the execution of a legal duty, does not break the chain of causation. R v Pagett (1983) 76 Cr App R 279 D armed with a shotgun and cartridges, shot at police who were attempting to arrest him.

He then in furtherance of attempt to resist lawful arrest, held a girl in front of him as a shield while shooting at the police who were armed. The police instinctively fired back and killed the girl. Held that D’s act had caused the death and that the reasonable actions of a third party by way of self-defence could not be regarded as a novus actus interveniens (new act intervening). The defendant had caused the death as the intervening act had been a foreseeable consequence of his action and had not broken the chain of causation.

D was liable for manslaughter. Where however the intervening act is not foreseeable, the Defendant may be exempted from liability. For example as noted by Peter Seago in his book Criminal Law, 3rd Edition: “If the accused were to render X unconscious and then leave him lying across a busy railway track, A would be liable for X’s resulting death at the wheels of the express train. If on the other hand the intervening act is totally unforeseeable then the accused will escape liability.

If the accused were to render X unconscious and leave him in a building which was then gutted by a gas explosion the accused would remain liable for the initial assault but not for the death – as where you leave someone in a building, it is not foreseeable that the building will catch afire and as such you will not be liable in that respect. (iii) Characteristic of the victim – “Thin Skull Rule” (R V HAYWARD) If the intervening act is a characteristic of the victim then it does not have to be foreseeable and will not break the chain of causation.

The idea is that you must take your victim as you find him – Note that this applies to the mind as well as the body and is commonly referred to as he “Thin Skull” Rule. That is, if D hits V on the head with the degree of force that would usually cause nothing more than slight bruising, but because V has an unusually thin skull causes V to suffer a fractured skull and brain damage, D cannot rely on evidence of V’s physical shortcomings to show the chain of causation has been broken. For example: R v Hayward (1908) 21 Cox CC 692. (THIN SKULL RULE) A man chased his wife into the street shouting threats and kicked her.

She collapsed and died from a thyroid condition which made her peculiarly susceptible to physical exertion and fear. He was convicted of manslaughter. Similarly, if D attacks V, and V dies because he chooses not to seek medical treatment, the chain of causation will not be broken, both because: (i) V was under no duty to seek help, as noted earlier the Criminal law is reluctant to ascribe responsibility for any failure to act or omissions therefore it follows that V’s failure to seek treatment would need be seen as a legal basis for breaking the chain; (ii) Because D must take his victim as he finds him as was established in Blaue.

R v Blaue (1975) 61 Cr App R 271 D had stabbed the victim, who was a Jehovah’s Witness, 13 times, and she was rushed to hospital where doctors told her that she would die if she did not have a blood transfusion. The victim refused on religious grounds and died from her wounds shortly after. The defendant was convicted of manslaughter (on grounds of diminished responsibility) and appealed on the ground that the victim’s refusal of treatment, being unreasonable, had broken the chain of causation. Lawton LJ held that the defendant had to take his victim as he found her, meaning not just her physical condition, but also her religious beliefs.

The defendant could not argue that his victim’s religious beliefs which inhibited her from accepting certain kinds of treatment were unreasonable. The question for decision was what caused the death and the answer was the stab wound. Also see: R v. Dyson [1908] 2 KB 454 D struck P who was suffering from meningitis and died, and it was immaterial that the blows would not have been caused death but for the meningitis; it was enough that the death would not have been caused by the meningitis at the time when it occurred but for the blows.

Contributory causes may be the acts of others including the acts of the deceased himself. Similarly in Swindall and Osborne (1846) 2 Car & Kir 230 where one or other of the two accused ran over and killed an old man, Pollock CB directed the jury that it was immaterial that the man was deaf or drunk or negligent and contributed to his own death. One or other of the two was a cause of death and the other abetted him. See also R v Dear [1996] Crim LR 595. The defendant had slashed the victim – V- repeatedly with a knife.

V it is alleged made the wounds worse by reopening them. V died thereafter. The defendant appealed against his conviction for murder, arguing that the chain of causation had been broken by V’s acts. The court found that the chain was not broken as the wounds caused by D were still the operating and substantial cause. D) Death caused by medical treatment Another set of cases where causation problems arise are those concerning negligent medical treatment of the original injury often encountered in homicide cases.

The courts have decided in what circumstances the medical treatment received by a victim, following an attack by the defendant, will relieve him of liability for the homicide if the victim subsequently dies. R v Jordan (1956) 40 Cr App R 152 The defendant stabbed the victim who was taken to hospital. The wound healed but the victim following what the expert evidence adduced by way of fresh evidence in the CA described as “palpably wrong” treatment died.

The Appellate Court decided that the chain had been broken as they held that the stab wound was merely the setting within which another cause of death operated, as a result the Accused conviction was quashed. NB. That though the Defendant was found not guilty of murder he could still have been liable for the wounding. The Test was therefore: ( i) How negligent or wrongful was the treatment? ( ii) Was the wrongful injury still the operating and substantial cause? Jordan was distinguished by the Court of Appeal in R v Smith [1959] 2 QB 35, as a “very particular case depending upon its exact facts”.

R v Smith [1959] 2 QB 35 D was involved in a fight with a fellow soldier during which he stabbed the victim twice with a bayonet, resulting in the victim being taken to the medical station where on the way he was accidentally dropped twice. And at the first aid post the medical officer was busy and took some time to get to him. He died about 2 hrs after the stabbing. On being charged with murder the defendant argued that the chain of causation between the stabbing and the death had been broken by the above treatment. The defendant was convicted of murder and appealed unsuccessfully.

The court held that the defendant’s stabbing was the “operating and substantial cause” of the victim’s death. In this case the victim clearly died from loss of blood caused by the stab wounds inflicted by the defendant. Only if the original wound could be said to have merely provided the setting in which another cause of death operated could it be said that the death did not result from the wound.

The modern test is contained in: R v Cheshire [1991] 3 All ER 670 The defendant shot the victim in the leg and stomach, necessitating hospital treatment the victim suffered complications following a tracheotomy which the hospital failed to realize. Held: That D’s Acts still caused the death as it was still the operating and substantial cause of death. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless: (i) the negligent treatment was so independent of his acts, and (ii) in itself so potent in causing death, that they regard (iii) the contribution made by his acts as insignificant.

E) “Escape cases” DPP V DALEY AND MGGHIE A defendant may be guilty of homicide where he causes such fear in the victim, that the victim desperately tries to escape, and is killed in the process of so doing. The factors required for liability are contained in the case of: DPP v Daley and McGhie (1980) AC 237 The defendants chased the victim and threw stones at him. In attempting to escape he tripped and fell and was subsequently found to be dead. The defendants were charged with murder and convicted of constructive manslaughter.

Lord Keith summarised what, in their Lordships’ view, the prosecution had to establish in such cases, namely: (1) that the victim immediately before he sustained his injuries was in fear of being hurt physically; (2) that his fear was such that it caused him to try to escape; (3) that whilst he was trying to escape, and because he was trying to escape, he met his death; (4) that his fear of being hurt there and then was reasonable and was caused by the conduct of the defendant; (5).

That the defendant’s conduct which caused the fear was unlawful; and (6) that his conduct was such as any sober and reasonable person would recognize as likely to subject the victim to at least the risk of some harm resulting from it, albeit not serious harm. CAUSATION – DIRECTIONS TO JURY It may be necessary, in some cases, to give a jury further guidance on the issue of causation, particularly where it is possible that the victim’s reaction was out of all proportion to the defendant’s threat. R v Roberts (1971) 56 Cr App R 95.

In a case involving a charge under s47 OAPA 1861, a girl who was a passenger in the defendant’s car injured herself by jumping out of the car while it was moving. Her explanation was that the defendant had made sexual advances to her and was trying to pull her coat off. The defendant was convicted. In the Court of Appeal, Stephenson LJ explained that the correct test for causation in law was to ask whether the result was the reasonably foreseeable consequence of what the defendant was saying or doing. His Lordship stated obiter that the chain of causation would be broken by the victim doing something “daft” or so unexpected that no reasonable man could be expected to foresee it. This point was addressed by the Court of Appeal in:

R v Williams and Davis [1992] 2 All ER 183 – The defendants gave a lift to a hitchhiker and allegedly tried to rob him. The victim jumped from the moving car (travelling at about 30 mph) and died from head injuries caused by falling into the road. Stuart-Smith LJ stated: that the nature of the threat is of importance in considering both the foreseeability of harm to the victim from the threat and the question of whether the deceased’s conduct was proportionate to the threat; that is to say that it was within the ambit of reasonableness and not so daft as to make his own voluntary act one which amounted to a novus actus interveniens and consequently broke the chain of causation.

It should of course be borne in mind that a victim may in the agony of the moment do the wrong thing…The jury should consider two questions: first, whether it was reasonably foreseeable that some harm, albeit not serious harm, was likely to result from the threat itself; and, secondly, whether the deceased’s reaction in jumping from the moving car was within the range of responses which might be expected from a victim placed in the situation which he was. The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation. Consequently, the chain of causation will only be broken if the victim’s actions were unreasonable.