Essay on Causation

Q. In criminal law there appears to be a general rule that the chain of causation will only be broken by an event which is not reasonably foreseeable.

Critically analyze the above statement.

English criminal law makes a distinction between conduct and result crimes. Conduct crimes are those where a specific conduct is prohibited by a law, for example, under Section 4 of the 1988 Road Traffic Act[1] and Section 1 of the 1991 Road Traffic Act[2], it is an offence to use or be in charge of a mechanically propelled vehicle on a road or public place whilst under the influence of drink or drugs. Thus even if a person under the influence of drink, gets into a car, they will be charged for that restricted conduct; no harm or consequence of that drunk driving need be established.

On the other hand, Result crimes are where the law in question requires the prosecution to prove that the defendant’s conduct caused a prohibited result, or consequence. Hence, the prosecution must prove causation as part of the actus reus of the offence charged. Causation is of crucial importance in proving the actus reus of all result crimes especially in cases of homicide.

In determining the issue of causation the prosecution must prove that the defendant’s act/s were both the legal and factual cause of the result. In the end, it is for the jury to decide that the defendant’s act/s caused the results to the victim and the jury determines this issue by applying the legal principles explained to them by the trial judge (R v. Pagett [1983][3]).

In general, the issue of causation requires a distinction between factual and legal causation; for example A intends to kill B(mens rea) and stabs him to death(actus reus). Here, it could be said that A formed the necessary elements for the crime of murder and he caused the desired effects as well. But what if, once A stabbed B, the ambulance arrived and took B to the hospital where doctors unaware of B's medical condition and gave him some drug which reacted and caused B's instant death. Now, could it be said that A's conduct caused B's death, or that the chain of causation was broken and the burdens shifts on the doctors. Thus, the question of causation can become confusing where there are multiple causes towards a victims death.

The determination of factual causation is done by reference to the “sine qua non” or the “But For” test; which is the requirement for proving causation but is not enough, by itself, to determine the causal link. For example, if A invited B to a pub and on the way B was killed in a road accident, it could be said that ‘but for A inviting B to the pub, B would not have died’. However, although A’s conduct was therefore a sine qua non of B’s death (i.e. a ‘but for’ or factual cause) it is not the legal cause and A could not be criminally liable for the death of B (White [1910]).

In R v White (1910)[4] the defendant put some poison in his mother's milk with the intention of killing her. The mother took a few sips and went to sleep and never woke up. Medical reports revealed that she died from a heart attack and not the poison. The defendant was not liable for her murder as his act of poisoning the milk was not the cause of death. He was liable for attempt. This case established that whether something amounts to a factual cause of an event is a question of fact for the jury to decide, who will determine this by use of the ‘but for’ test. If the result would have occurred regardless of the defendant’s conduct – as in White – then the defendant cannot be said to have caused that result regardless of his intention.

In Carey (2006)[5] a girl had died following an affray during which she had had her face punched by one of the appellants. After the danger from the appellants was over – they had been chased away – the girl had run 109 yards uphill. Neither she nor her doctor was aware that she suffered from a heart disease. She collapsed and died after her run. This case exemplifies that the ‘but for’ test is the initial argument for the contemplation of causation and would never, by itself, determine the result and even if factual causation is established it would not, of itself, determine guilt. Hence, it is a necessary requirement to prove that the defendant’s act/s was the legal cause as well.

On the question of legal causation the judge would direct the jury as to whether something is capable of being the legal cause according to legal principles and the jury would decide on the basis of what the judge has directed them. Expert evidence would often play a role in court in the determination of cause – especially cause of death – when there are a number of possible causes. It should be noted, however, that although expert testimony is often both relevant and necessary it is not decisive. It is not for doctors to determine whether a defendant is or is not legally responsible for a victim’s death; that is a question of law to be decided according to its principles.

R v. Smith (1959)[6];the court laid down the test for legal causation; that the defendant’s conduct must have been an operating and substantial cause of the result suffered by the victim even if the defendant’s conduct was not the sole or only cause. Lord Parker CJ said in this case:

“…[I]f at the time of 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 did not result from the wound. Putting it 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.”

And secondly, the defendant’s conduct must be more than a minimal cause of the result suffered by the victim. In Cato [1976][7], Lord Widgery CJ said:

“As a matter of law it was sufficient if the prosecution could establish that [the heroin] was a cause [of death] provided it was a cause outside the de minimis range, and effectively bearing upon the acceleration of the moment of the victim’s death.”

Now, to this point, the question of establishing causation is an easy one, the problem arises when there exist intervening acts or events – novus actus interveniens - after the defendants act which contribute to the death of the victim.

Goff LJ in Pagett [8] said:

“Occasionally…a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens…a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person, but that that act was so independent of the act of the accused that is should be regarded in law as the cause of the victim’s death, to the exclusion of the act of the accused.”

The recognized forms of “novus actus interveniens” maybe an act of third party, an act of the victim or an act of nature/God which becomes an operating cause in itself independent of the original injuries. An intervening act/s or event/s would generally only break the chain of causation where the act/event was not reasonably foreseeable and operated to render the defendant’s original conduct no longer an operating and substantial cause but merely part of the victims history and thus in the process negating the defendants liability. As in Jordan (1956)[9], where the defendant who stabbed the victim was held not to be liable for his death. The victim had died after receiving ‘palpably wrong’ medical treatment when his wounds had almost healed.

Generally courts hold that death which results from “normal medical treatment” does not break the chain of causation; and this is the effect of Smith (1959) which isolated the decision in Jordan rather overruling it by referring to the decisions as “very particular case depending on its own facts”. The only difference between both the cases is that in Jordan the victims injuries had practically healed and no longer posed a danger to the victim.

In Malcherek (1981)[10], courts further adopted a restrictive approach towards medical treatment breaking the chain of causation and Lane LJ stated:

“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 evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, 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.”

Subsequently, in Cheshire [1991][11] the court presented further restrictions and decided that the chain of causation would only break where the medical treatment received by the victim is so negligently administered that it becomes independent of the defendant’s conduct and is so potent in causing the victims death that it makes the defendant’s contribution insignificant.

Furthermore, the operation of the rule that “you take your victim as you find them” does not let the defendant escape liability in cases where the victim neglects their injuries or their condition. For example in Blaue (1975)[12] – the victim of a stabbing refused blood transfusion, because of her beliefs and died as a result. The defendant was held liable for her death. Lawton LJ said

“It does not lie in the mouth of the assailant to say that the victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim did not stop this coming about did not break the causal connection between the act and death…”

Similarly, in Holland (1841)[13] the defendant, in the course of an assault, injured one of the victim’s fingers and victim rejected the surgeon’s advice that the finger should be amputated. The wound became infected with lockjaw (tetanus) from which the victim died. Maule J said in his direction to the jury that ‘the real question is, whether in the end the wound inflicted by the prisoner was the cause of death’. A person whose conduct caused injury which resulted in death cannot exclude himself by pleading that the victim could have avoided death by taking greater care of himself; and thus the jury convicted.

In the more recent case of Dear [1996][14] the defendant had attacked the victim with a Stanley knife, the victim having sexually abused the defendant’s daughter. The victim’s wounds were stitched but reopened and the victim bled to death. It was not clear whether the victim had reopened the wounds himself or whether they had reopened themselves. Either way, the victim had not obtained medical help.

Rose LJ stated:

“It would not, in our judgment, be helpful to juries if the law required them…to decide causation in a case such as the present by embarking on an analysis of whether a victim had treated himself with mere negligence or gross neglect, the latter breaking but the former not breaking the chain of causation between the defendant’s wrongful act and the victim’s death.”

It must be noted that in cases such as, Blaue, Holland and Dear, a failure to act on part of the victim would not break the chain of causation where the following result can be attributed to the original injury.

Lastly in cases where the victim tries to escape the defendant; causation may operate to hold the defendant liable as long as the victim was frightened to the extent that he tries killing or injuring themselves trying to escape that danger and provided that the victims reactions was not so daft as to make it the victims own voluntary act; as in Roberts (1971)[15], then it will not break the chain of causation between the defendant and the victim.

In Williams and Davis [1992][16] Stuart-Smith LJ stated:

“The nature of the threat is of importance in considering both the foreseeability of harm to the victim from the threat and the question 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 it his own voluntary act 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.”

Thus it seems that even if the response of the victim is within a range of foreseeable responses; denial of medical treatment, poor medical treatment or suffering injury whist escaping the defendant; all these conditions would not normally break the chain of causation if the victims response to these situations was reasonably foreseeable.

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[1] Road Traffic Act 1988 - http://www.legislation.gov.uk/ukpga/1988/52/contents

[2] Road Traffic Act 1991 - http://www.legislation.gov.uk/ukpga/1991/40/contents

[3] R v. Pagett (1983) - http://www.vanuatu.usp.ac.fj/courses/la205_criminal_law_and_procedure_1/cases/R_v_Pagett.html

[4] R v. White (1910) - http://www.e-lawresources.co.uk/R-v-White.php

[5] R v Carey & Ors [2006] - http://www.e-lawresources.co.uk/R-v-Carey--and--Ors.php

[6] R v. Smith (1959) - http://www.oup.com/uk/orc/bin/9780199234127/resources/01casematerial/bychapter/ch02/#f

[7] R v. Cato (1976) - Page 64, Sourcebook on Criminal Law By Michael T. Molan

[8] R v. Pagett (1983) - http://www.vanuatu.usp.ac.fj/courses/la205_criminal_law_and_procedure_1/cases/R_v_Pagett.html

[9] R v. Jordan (1956) - http://www.e-lawresources.co.uk/R-v-Jordan.php

[10] R v. Malcherek & Steel (1981) - http://www.vanuatu.usp.ac.fj/courses/la205_criminal_law_and_procedure_1/cases/R_v_McKechnie.html

[11] R v. Cheshire (1991) - http://www.peterjepson.com/law/r_v_cheshire.htm#R%20v%20Cheshire%20[1991]%203%20All%20ER%20670.

[12] R v. Blaue (1975) - http://www.vanuatu.usp.ac.fj/courses/la205_criminal_law_and_procedure_1/cases/R_v_Blaue.html

[13] R v. Holland (1841) - http://www.vanuatu.usp.ac.fj/courses/la205_criminal_law_and_procedure_1/cases/R_v_Blaue.html

[14] R v. Dear (1996) - http://en.wikipedia.org/wiki/R_v_Dear

[15] R v. Roberts (1971) - http://www.e-lawresources.co.uk/R-v-Roberts.php

[16] R v. William & Davis (1992) - http://www.e-lawresources.co.uk/R-v-Williams--and--Davis.php