Essay causation - Grade: A PDF

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it is crucial in evidence law. ...

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Name: Tan Xue Qi ID: UKT-01836/0913 Essay on causation

The simple maxim that the accused in a criminal proceeding ought to have caused the crime is one of the potentially most important doctrines in law. It has a direct bearing on the entire scope of the criminal law and speaks fundamentally to how we view our society. The proximity between cause and effect that we consider to bring rise to a positive moral duty of care, when we refer to the imposition of punitive sanctions on members of society, is one of the most important tests of criminality. Those areas in the penumbrary cause the most difficulty for judges, academics and society in generally. Therefore the prosecution of drug dealers for the death of those they supply , doctors who were negligent and contribute to the death of their patients , reckless transmission of HIV / Aids to sexual partners or the denial of access to lifesaving treatment are all areas where the person being accused of the crime may or may not be considered to have ‘caused’ the harm. The quotation above by Seneca represents one of the key difficulties in establishing a chain of causation from the accused to the victim of any crime. In English law omission to act cannot be considered the cause of a crime because there is not the causal link; however there is an undoubted argument that someone who refuses to help upon seeing a crime is encouraging that action. Causation is an extremely important part of the actus reus in result crimes. The failure of the prosecutor to establish causation is disastrous to a case because ‘if the death, damage or destruction occurred because of some other cause then the offence has not been committed even though all the other elements of the actus reus are present and the accused had the necessary mens rea’. However, it is far from a simplistic concept of deciding that the action caused the result. The concept of causation represents a nexus between fact and law, they are at certain points clearly distinguishable and at others not. Causation could be proved either through factual or legal causation. According to the Court of Appeal in Pagett and Cheshire the issue of factual causation is mainly one for the jury once it has been determined by the courts that there is enough evidence to be left to them. Factual causation can be established through the ‘but for’ test . When establishing legal causation, the accused need not be the sole or even the main cause of the harm or victim’s death but it must be a significant cause of the result. In the case of R v Kennedy (No 2), it was held that the defendant’s contribution need only be significant, it need not be substantial. In circumstances where there are no complicating factors, factual causation will be sufficient to establish causation but where there are complicating factors, legal causation will be needed to establish causation.

The issue of causation becomes confusing when it comes to drug administration and joint responsibility cases under novus actus interveniens. Different academic writers have also commented on this view. The case of Kennedy (No2) was seen to be the leading case with regards to the causation principles in cases of supply drugs where the dealer supplies drug and after voluntary self injection by the victims, they die. The House of Lords in Kennedy (No.2) did consider the possibility of a conviction for gross negligence manslaughter where a drug dealer gives a user some drugs which the user injects and as a result the user then dies. It then went on to consider principles of causation in depth and agreed that the 'free, deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility . Analyzing the previous case law briefly, the House of Lords were of the view that Cato could be distinguished from Kennedy (No.1) on its facts as the injection had been administered by the defendant. The House of Lords concurred with the judgments in R v Dalby and R v Dias that the chain of causation could be broken by the voluntary and informed decision of the person injecting himself. As a result, it was held that the case of R v Rogers had been wrongly decided. In Kennedy (No. 2), the Court of Appeal found that the jury could have validly convicted the appellant of manslaughter if they were satisfied that, when the syringe was handed to the victim for the purposes of 'immediate injection', the appellant and the victim were both engaged in the activity of administering the heroin. Cowan asserted that in prosecuting a manslaughter case, you must be able to prove that the defendant caused the death. A voluntary intervening act by a responsible person breaks the chain of causation. Williams asserted that what a person does is his own responsibility and is not regarded as having been caused by other people. This approach has been repeatedly adopted and approved by the appellate courts in a diverse range of circumstances like Pagett and Latif. In the context of drug administration cases; the courts have released their grip on this seemingly settled principle. Ormerod explained that after years of confusions in the Court of Appeal, the House of Lords were able to restore orthodoxy back to the principles of causations in a judgment delivered by Lord Bingham. Ormerod asserted that it was a most welcome conclusion and was obvious to all commentators. Lord Bingham clarified that the decision in Environment Agency v Empress Car Co. is restricted to cases of pollution or environmental crimes: “it does not lay down any general rules governing causation in criminal law”. The Court of Appeal accepted that in Dias that the principal act of self-injection is not a crime and thus there can be no form of accessory liability for it. Williams, R asserted that

the position in criminal law before R v Finlay was simple in the sense that if the defendant had directly caused the offensive result, he would be guilty as a principle. Another interesting area of law which concerns the issue of causation and the potential dilemma it creates in the medical negligence arena. In one of the early case, R v Jordan, the victim was taken to hospital after being stabbed by the defendant. He was given anti-biotics after showing an allergic reaction to them. He was also given excessive amounts of intravenous liquids. He died of pneumonia 8 days after admission to hospital. At the time of death his wounds were starting to heal. The court held that the treatment was palpably wrong and not normal. Defendant was not liable for his action due to the wrong treatment. However, it is submitted that the situation in Jordan was rare and it was an exceptional case. Therefore, the chain of causation would not normally break just because of the palpably wrong treatment. Particularly influential is whether the initial wound or injury is continuing to be a operating and substantial cause and this approach was taken in the case of R v Smith. Honore and Hart in Causation in the Law argued that where there is a free, deliberate and informed act or omission of a human being intervening in causal sequence, the initial causal chain is broken. The Courts are mindful of the fact that when assessing the criminal liability of the medical profession, there are broader political and economical arguments to be considered. These being that the National Health Service is to a large extent underfunded and that there is a shortage of medical personnel resulting in many of the doctors being overworked and underpaid. These are essential public oriented concerns to prevent the medical profession from providing their services in fear of the consequences which may arise wherein they find themselves in a position of being sued and this would in turn have the effect of defensive practices being exercised in the discharge of their duties. In conclusion, the imposition of criminal liability is indeed an onerous task, particularly when establishing causation, and due to the available approaches, there is a tendency that judicial creativity exercised in these regards may not be exclusively based on any principal arguments. This would in turn give rise to great uncertainties and inconsistencies in the manner in which the principles are applied. Decision are highly regulated by policy considerations so as to ensure that justice is done in a case within its specific context....