Criminal LAW - Causation PDF

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CRIMINAL LAW The Elements of a Crime CAUSATION If the definition of an offence specifies a particular consequence, it is a “result crime” and the prosecution must prove, in order to establish the actus reus, that the defendant caused that consequence. The chain of causation is the causal link betwee...

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CRIMINAL LAW The Elements of a Crime CAUSATION If the definition of an offence specifies a particular consequence, it is a “result crime” and the prosecution must prove, in order to establish the actus reus, that the defendant caused that consequence. The chain of causation is the causal link between the act of the defendant and the result that occurs. For example, in order to establish the actus reus of homicide, it is necessary to prove that the defendant caused the death of the victim. Causation in fact The first step in establishing causation is to ask ‘was the defendant’s act a cause in fact of the specified consequence (for example, death in the case of homicide)? This question can be answered by asking: ‘But for what the defendant did, would the consequence have occurred?’ (but for test) if the answer is ‘no’, then we have established the consequence would not have occurred but for what the defendant did’, therefore causation in fact is established. An example where the prosecution failed to establish causation in fact is the case of R vs White (1910). The defendant put cyanide into his mother’s drink, but the medical evidence showed that she died of heart failure before the poison could take effect. Consequently, the answer to the question, but for what he did, would she have died?’ was ‘yes’. She would have died anyway, therefore no causation. Causation in law Just because the prosecution establishes that the defendant’s act was a cause in fact of the consequence, it does not necessarily mean that the defendant is liable. It is also necessary to prove that the defendant’s act was a cause in law of the specified consequence. One approach to establishing causation in law is to consider whether the defendant’s act was an ‘operative and substantial’ cause of the consequence in question R vs. Smith (1959). It should be noted that ‘substantial’ in this context simply means more than a very trivial cause which would be ignored under the de minimus principle. Moreover, an ‘operative’ cause need not be the sole or main cause of the specified consequence (R vs Benge (1865)). Only if the defendant’s act could be said to have merely provided the settling in which some other cause operated would the chain of causation be broken. This is a novus actus interveniens or an intervening act which breaks the chain of causation. An alternative approach to the ‘operative and substantial’ test for establishing causation in law, is to consider whether the result specified in the actus reus was a reasonable foreseeable

consequence of what the defendant had done (R vs Cheshire (1991). In R vs Pagett (1983), the defendant was held to have caused the death of the girl hostage he was holding in front of him when he fired at armed police officers who returned fire, killing the girl. It was reasonably foreseeable in the circumstances that the officers would instinctively return fire and hit the victim. The second approach to establishing causation in law is the ‘thin skull rule’. Even if injury or death is not a reasonably foreseeable consequence of the defendant’s act, he would still in law have caused that result if the victim suffered from some physical or mental condition that made him especially vulnerable. This is known as the ‘thin skull’ rule which provides that the Defendant must take his victim as he finds him. For example, in R vs Blaue (1975), the defendant was held to have caused the death of a Jehovah’s Witness who he stabbed, notwithstanding that she had refused a blood transfusion that would probably have saved her life. He had to take his victim as he found her, including not just her physical condition, but also her religious beliefs. Factual and legal causation must coincide R v Hughes (2013) Self Neglect Similarly, although it may not be reasonably foreseeable that the victim will neglect his wounds, it seems that such neglect will not break the chain of causation (R vs. Holland (1841)). Special instances of causation Death caused by negligent medical treatment Where death is caused by the medical treatment of a wound, the original attacker is held liable for homicide. This is so even in the case of negligent medical treatment (R vs Smith (1959). However, it seems that grossly negligent medical treatment will break the chain of causation (R vs Jordon (1956) (this was an exceptional case). It should be noted that, in (R vs Cheshire (1991), the court held that the judge has misdirected the jury by telling them that only recklessness on the part of the doctors would break the chain of causation, but it is clear from the judgement that the court did not intend to suggest that a defendant should be held to have caused death however outlandish the treatment: 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 the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.

It is difficult to know what ‘so independent’ and ‘so potent’ mean if not gross negligence or recklessness.

Where medical authorities decide to switch off a life support machine, the chain of causation is not broken. In R vs Malcherek and Steel (1981), both defendants had attacked women causing injuries which was so severe that their victims were placed on life support machines in hospital. In both cases, doctors decided to switch off the machines after determining that the victims were ‘brain dead’ and that there was no prospect of recovery. Both defendants were convicted of murder at first instance and appealed on the common ground that the doctors had broken the chain of causation by switching off the life support machines. The Court of Appeal upheld the convictions holding that in both cases the operating and substantial cause of death had been the original wounds inflicted by the defendants. The life support machines merely suspended the effects of the original injuries, once the machines had been switched off the original wound was the cause of death.

Escape cases (fright or flight) A defendant may be guilty of homicide or a non-fatal offence where he causes such fear in the victim, that the victim tries to escape and is killed or injured in the process. This is so even if the death of injury results from mental suffering or shock as a result of the attack. In R vs Roberts (1971), the Court of Appeal held that the chain of causation would not be broken by a victim’s actions in trying to escape from the defendants’ unlawful acts, provided the victim’s actions were the reasonably foreseeable consequence of what the defendant had said or done....