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Published: Fri, 02 Feb 2018
Causation is only important in situation where a crime has been committed
Causation can be established through either factual or legal causation. The method for establishing a factual causation is the ‘But For’ test. This test simply means that if not for the defendants account, would any harm have occurred? If the answer is ‘No’, then we can say the defendant caused the death of his victim. This test is very important and it’s a test of necessity. 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.
When establishing legal causation, the following principles have to be considered;
It must be visible that the defendant’s action is the substantial cause. It need not be the sole cause of the harm but it must be significant. The defendant’s behavior must contribute and be a significant cause of its result and it must not be more than insignificant to the result or de minimis as seen in Cato 1976.
In the case of Kennedy No2 (2007), it was held that the defendants contribution need only be significant, it need not be substantial.
In a situation where A stabbed B about three times and B died, it would have to be established whether A actually stabbed B and if he did with the necessary mens rea. In this example, A causing B’s death is self evident and significant to the result.
But there are instances whereby problems may arise if A says the death was not caused by his act of stabbing B, but by the act of the doctor who treated B negligently at the hospital, it can still be said that A’s action is still a significant cause of B’s death. In this situation, the court will have to decided where the doctors action has broken the chain of causation so as to relieve the defendant of the for the killing. Whatever the court decides, D would still be liable for causing serious injury to B.
The harm caused or inflicted upon the victim must result from a culpable act. i.e. the act must be capable in law as amounting to the death of the victim and it must be an act where the defendant would be responsible for his actions. In Dalloway, a driver of a spring cart, standing in the cart and driving along a public road without reins, but not driving furiously, when a child runs across the road before the cart, and is killed by the wheel passing over it, is not guilty of manslaughter, unless he could have saved the life of the child if he had been driving with reins in his hand.
You must take your victim as you find them. This is also known as the thin skull rule. This rule applies irrespective of whether the defendant was aware of the condition or not. If you hit your victim, no matter whether your intention was to cause slight harm, if it results into a very serious injury which leads to death, then you will be liable for manslaughter under what is known as unlawful act doctrine and this means that he deliberately committed the unlawful and dangerous act. This means if he has a particularly vulnerable victim he is fully liable for the consequences to them even if an ordinary person would not have suffered such severe consequences. For example if D commits a minor assault on V who has a heart condition and V suffers a heart attack and dies. D is liable for the death of V even though such an attack would result in no physical harm to someone without a heart condition.
In Blaue (1975), Lawton L. J held that “it does not lie in the mouth of the assailant to say that the victim’s religious beliefs which prevented him from accepting certain types of treatment were unreasonable. So the refusal of your victim to treatment would not relieve you of liability in the thin skull rule. And so it wouldn’t break the chain of causation.
There are also situations whereby the defendant claims that the chain of causation which connects his conduct with the result has been broken by an intervening event and this intervening event is usually refered to as a ‘novus actus interveniens which simply means a ‘new act’.
Semester and sullivian explained in their book that a “novus actus is an action or an event which ‘intervenes’ to ‘break the causal chain’ leading from D to the eventual harm” Where the result is attributable to a novus actus, D is relieved of the liability for that results and his conduct is no longer seen as a significant and operating cause.
Different tests apply to decide if the chain of causation has been broken depending on the type of intervening act. But I would like to group these intervening acts into four which are as follows;
Natural causes- this can be explained as events which occur by act of God. It involves natural events other than human beings acts.
Again, principles of foreseeability determine whether a naturally-occurring event will amount to an intervening act which breaks the chain of causation. For example, in Hart (1986), D assaulted V, leaving her lying conscious on a beach below the high-water mark. V was subsequently drowned by the incoming tide. The court of appeal held that D had caused the death of the victim. A freak wave is an unpredictable event so it is likely to be unforeseeable and would have amounted to an intervening act in the case of Hart if V was left lying above high water mark. But in a situation in which an unconscious victim is left below the tide line and drowns when the tide comes in. This is a wholly foreseeable occurrence so it will not break the chain of causation. Even though the defendant did not drown the victim directly, he put the victim in a position where it was foreseeable that the victim would drown so liability would be established.
Act of a third party- the issue of causation arises whereby there is a conduct by a third party. A person is normally responsible for whatever act he does himself but can’t be liable for the act of another all because his actions provided a background for a consequent event. If A beats up B and leaves him on the railway and a train passes and runs over B, A will be liable for the death of B because it will be said that A could have foreseen what was going to happen by leaving B on the railway. but where A leaves B by the road side and C comes and strangles B to death, then we can say C’s intervention has broken the chain of causation. The unforeseeable intervention of another breaks the chain of causation and also the free, deliberate and informed intervention of a third party will relieve D of responsibility. In Pagett, P held a girl he kidnapped in front of him as a shield and then shot at armed police officers who immediately fired back, killing the girl, he was charged with manslaughter but he argued that the police actions constituted a break in the chain of causation but the court said that the accused act need not be the sole cause of the victims death and so it was held that P was liable for the death of the girl.
Act of the victim –the chain of causation cannot be broken here unless the victim’s acts are disproportionate or unreasonable in the circumstance. But initially you have to take your victim as you find them as I explained earlier. In fright and flight cases, the test of reasonable foreseeability (Was the victim’s reaction within the range of reasonably foreseeable responses? (Reed A 2009)) is really important. The accused can be held liable for harm/injuries suffered by the victim in trying to avoid violence at the hands of the defendants if it was reasonably foreseen. In Roberts (1972), the defendant interfered with the victim’s clothing whilst she was a passenger in his car. She jumped from the moving vehicle and sustained serious injuries in the fall. The defendant denied causing these injuries but his conviction was upheld as it was foreseeable that the victim would attempt to escape and could be injured in doing so. The chain of causation will be broken only if the victim’s actions were ‘so daft’ as to be unforeseeable. Also in Williams (1992), Halliday (1889) and Mackie (1973), it was explained that what their victims did was reasonably foreseeable as the result of what the defendants did or said. But in situations where no reasonable man would have expected to foresee the result, then the chain of causation would be broken (Reed A, p.43). Where the defendant is still a significant and operating cause at the time of the victim’s death, then it is irrelevant that there are other causes too also operating and this was the view in Blaue(1975), Smith(1959) and Dear (1996).
Medical intervention; this arises in most cases where the defendant committed an offence which led his victim to the hospital, and while in the hospital, the victim receives poor treatment and dies and he’s charged with either murder or manslaughter. The defendant argues that the act of the doctor has broken the chain of causation. In this situation, the court will have to decide whether the doctor’s conduct has broken the chain of causation so as to relieve the defendant of liability for unlawful homicide. Whatever the court decides, if the act of the doctor has broken the chain of causation, the defendant will still be liable for the serious injury he inflicted upon the victim. Where medical intervention contributes to death, the courts have been inconsistent in their approach and this is because in some situations, the defendant still remains liable no matter what happens while in some other cases, the hospital or doctor relieves the defendant of the liability. Reed A, Fitzpatrick B 2009, p.53 in their book explained that causation is a matter of law for the judge and where the wound inflicted by the accused is still an operating cause, the accused will remain liable even though the doctor were grossly negligent as in the cases of Smith and Blaue. In Cheshire and Jordan it was explained that where the initial wound is longer life threatening, the accused may still be held liable for the death brought about by the poor treatment of the staff. In Malcherek and Steel 1981, it explains that where the doctors are of the view that all necessary tests have been done and the victim will never recover and thereafter switch off the life support system, the chain of causation cannot be broken and so the accused will be liable for the death of his victim
The intervening acts or events which lead to break in causation are still governing the existing law on causation principles. There is a widely held view that the concept of causation is manipulated firstly in other to finding some persons who play a causal role and also foresee a consequence. It helps you find the person who committed a particular crime and allows the punishment he deserves.
Causation really plays an important role in criminal law in the sense that it satisfies the needs to punish someone who is felt to be deserving the punishment for his unacceptable behavior and an intervening act or break in chain of causation helps to reduce the punishment of the defendant to a minimal one for instance if D hits V on the head and he goes unconscious, if he dies, D would be liable of Manslaughter but if another party shots V and V dies, the act of the third party will relieve D of liability of manslaughter but D will still be liable for the injury he inflicted upon V.
The principle of foreseeability is in conflict with “take your victim as you find him” in the sense that whatever the result of what D did to V, the principle or test of reasonably foreseeability is involved because the law treats the pre-existing natural condition or vulnerability in the victim as foreseeable and the defendants must take the conditions of their victims as they find them.
In a situation whereby, the break in chain of causation occurs though the intervention of a natural cause, there would be nobody to be blamed or punished for the death of the victim and also where a person mistakenly commits an act that breaks the chain in causation, would the defendant be relieved of the liability or would he still be liable? These are questions which have not yet been looked into very well.
Under medical cases, in novus actus interveniens , the main problem here is that the juries have not be consistent in their approach and it is impossible to be precise and comprehensive about the principles governing the attribution of causation.
ORMEROD & FORTSON (2005) Under the issue of causation, for D to be liable as a principal for the offence of unlawful act manslaughter based on his conduct under s.23 of OAPA leading to V’s death, the prosecution are obliged to establish the causal element integral to the s.23 offence, and in addition, as an element of the offence of manslaughter that that unlawful act caused death. The orthodox view of causation is that the prosecution will fail to fulfill even the first of these. If D supplies the syringe and the heroin, and V self-injects, V has performed a free deliberate informed act of self-administration, and it is that act which represents the administration
Orthodoxy holds that in these circumstances V is regarded as administering to himself. In terms of general principles of causation, as Glanville Williams explained:
“The new intervening act (novus actus interveniens ) of a responsible actor, who had full knowledge of what he is doing, and is not subject to mistake or pressure, will normally operate to relieve the defendant of liability for a further consequence, because it makes the consequence too remote … What a person does (if he has reached adult years, is of sound mind and is not acting under mistake, intimidation or other similar pressure) 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 (1983), Latif (1996).However, in the context of drug administration cases; the courts have released their grip on this seemingly settled principle. In Kennedy No.1 it was suggested that D would still be responsible for the administration despite V’s act. Subsequently, in Dias, although the court endorsed the orthodox approach to causation, it did so with one significant reservation.
However, in the context of drug administration cases, the courts have released their grip on this seemingly settled principle. In Kennedy No.1 it was suggested that D would still be responsible for the administration despite V’s act. Subsequently, in Dias, although the court endorsed the orthodox approach to causation, it did so with one significant reservation.
In Kennedy No.2, the court is, unfortunately, less direct in its discussion of causation. The Lord Chief Justice states that;
“It has to be remembered that when considering whether the defendant’s act has caused death, what amounts to causation in a case of this nature is not dependent upon a particular statutory context. Accordingly if a defendant is acting in concert with the deceased, what the deceased does in concert with the defendant will not break the chain of causation, even though the general principles as to causation have to be applied. This was recognised by Lord Steyn when he qualified the general position when saying in R v Latif & Others  2 Cr. App. R. 92 at p 104: ‘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 held to relieve the first actor of criminal responsibility.’ (Emphasis added)”
In short, the court sidesteps causation by preferring a “joint responsibility” approach to liability.
Administration of drugs- In Evans, the court of appeal ruled on two important points
Whether or not a duty of care arises is a pure question of law
Whether Evans owed a duty in law to counteract the situation which she had created and so the appeal was dismissed.
Rogers was of the view that the only way to evade this conclusion is to say that the notion of “creating a dangerous situation” is somehow different and broader than the standard principles of causation.
Rogers was of the view that the decision was well decided because the drug supplier could have called for help after becoming aware of the clients illness. Evans provides for punishment if he does fails fails to call the ambulance and the client dies.
In Evans, the duty of care only arises ‘when they know or ought treasonably to know’ that the client has become seriously ill.
Here the burden of proof is on close friends, family members who supply the drugs.
In the kennedy and evans, if the principles of causation is about imputing moral blames, then it is defensible to say the drug dealer is guilty of the offence under s.23 of OAPA.
Every now and then, we do accept that the standing of the defendant and the victim may have some bearing on whether the victim’s act breaks the chain of causation.
Horder 2006. There has been a strong support for the approach to causation in which the destructive effect domestic abuse has on the victims autonomy can be regarded as rendering the defendant criminally liable for the victim suicide.
Under the principles of causation, an accessory to an offence should be regarded as liable to for the principal’s crime if the accessory caused the principal to commit that offence.
This not however a test of “but for” causation but simply whether the accessory can be considered to have materially contributed to the commission of the offence by the principal.
The reliance on the principle of causation is unfortunate for a number of reason;
Causation would be virtually impossible to prove in the context of joint enterprise liability e.g. where A and B intends to commit burglary and B along the line commits murder.
The modern law of causation would prevent any secondary liability from being established in many cases.
The principle of causation as identified by the court of appeal will create even more uncertainty for the jury, since it embodies a normative notion of whether the commission of the substantive offence should be attributed to the secondary party in some way. With no coherent suggestion as to when this would be appropriate
Causation is in some sense a difficult area of the law yet according to the court of appeal in Cato (1976) 1 WLR 110, Pagett (1983) 76 Cr App R 279 and Cheshire (1991) 1 WLR 844, the issue of factual causation is largerly one for the jury once the court has determined that there is sufficient evidence to be left to them and since ‘cause’ is an ordinary English word, in most cases no directions need to be given.
Allen was of the view that Lord Steyn’s dictum has been recognized as a statement of conventional doctrine. If a person is acting in concert there is a joint enterprise and those involved are either principals or accessories and the act of the principal in bringing about the prohibited result cannot amount to an intervening act negating the liability of another party who has aided and abetted the principal in performing the act
Williams was of the view that before the case of Finlay, the position in criminal law was simple. He explained that if the defendant caused the offensive result then he would be guilty as a principal.
Rogers, Finlay and Kennedy thus led to serious practical problems, widening the law until boundaries are no longer clear and weakening the line between accessory and principal liability. Williams said it’s not completely clear whether the new rules of causation are applicable outside the context of supply of drugs
In R v Mendez, the court of appeal identified a rationale for secondary liability namely the principle of causation such that an accessory should be regarded as liable for the principal’s crime if the accessory caused the principal to commit that offence.
Virgo said that the reliance on the principle of causation is unfortunate for a number of reasons. First, Causation would be virtually impossible to prove in the context of joint enterprise liability. Secondly, the modern law of causation would prevent any secondary liability from being established in many cases. Finally the principle of causation as identified by the courts of appeal will create even more uncertainty for the jury.
The principle of causation would not be able to relied on in the context of joint enterprise liability because causation would be virtually impossible to prove and it would prevent any secondary liability from being established.
In R v Dias subsequently a differently constituted court of appeal in the light of criticism of Kennedy No1 decision, adopted a different perspective, without actually overruling the earlier precedent. D’s conviction was quashed, despite the fact that he also admitted to having prepared a syringe and given it to the deceased. It was determined that the act of injecting oneself with a controlled drug is not a crime. Hence the defendant in Kennedy No1 could have been convicted as a secondary party by virtue of the fact that he had assisted and encouraged the deceased to inject himself.
The court of appeal in Dias asserted that in cases where D is accused of manslaughter because he supplied V with drugs, a conviction can only be upheld if the issue of causation is left to the jury to decide and this formed a mark of separation between Kennedy No1 and Dias; in Kennedy No1, the issue of causation had been left to the jury consideration, but in Dias, the court was mindful of the inconsistency effected by Kennedy No1 rationale and left it open to future days to decide that D caused V’s death even if V injected himself.
Dias and Rogers shared similar views in the sense that they both said that a person who supplies the drug or participated in the injection process would not be liable under sec 23 of OAPA 1861.
A further level of confusion arose in Kennedy No2 when the Criminal cases review commission had to refer the case of Kennedy No1 back to the court of appeal
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