#17264 - Causation - GDL Criminal Law

Prosecution must prove both factual and legal causation.

Factual Causation: but for the actions of D, the events would not have occurred.

• R v White [1910]

  • The defendant put some poison in his mother's milk with the intention of killing her. V died of unrelated heart attack before poison took effect. D only liable for attempt.

  • Were the actions of D sine qua non?

• R v Dyson (1908)

  • The victim, a child, had meningitis. Dyson threw her down the stairs and she died. It was argued that the child was going to die in any event, and the actions of the defendant had not caused death.

  • Any action which accelerates death is a cause.

Legal Causation: D’s actions must have been the operating and substantial cause of the outcome.

• R v Dalloway (1847)

  • D driving horse and cart, not holding reins. A child ran out in front of the cart and was killed. The defendant was not liable as he would not have been able to stop the cart in time even if he had been holding the reins.

  • The AR was not the operative and substantial cause of the death.

• R v Pagett (1983)

  • D took a girl hostage and used her as a human shield while he shot at police. The police fired back and killed six-month pregnant teenager.

  • The operative and substantial cause was Pagett’s actions.

• R v Cato [1976]

  • D purchased heroin and injected it into his friend.

  • Held that substantial does not mean 'really serious'. It means an act (or omission) that is not a 'de minimus, trifling one'.

• R v Hughes [2013]

  • Lord Hughes and Lord Toulson said:

    • “Where there are multiple legally effective causes, whether of a road traffic accident or of any other event, it suffices if the act or omission under consideration is a significant (or substantial) cause, in the sense that it is not de minimis or minimal. It need not be the only or principal cause”

Novus Actus Interveniens

• Bush v Commonwealth of Kentucky [1888]

  • Bush shot V. V recovered in bed with her sister who had scarlet fever, contracted scarlet fever and died. Not reasonably foreseeable that the victim would be infected with scarlet fever by the doctor

• R v Latif [1996]

  • Customs intercepted 3.2m of heroin intended for England. Replaced it with Horlicks. Latif not guilty of importing heroin as the acts of the officers had been an intervening cause.

• Environment Agency v Empress Car Company [1999]

  • A troubling and confusing judgement which is hard to reconcile with Latif. Company had a poorly sealed diesel tank that had drained into a river. A saboteur had opened the seal.

  • HoL still held company laible. Lord Hoffman said it was not extraordinary or unforeseeable for someone to go onto premises and release the seal. The conduct was not unusual

  • Perhaps best explained in terms of public policy concerns over control of pollution

D can still be liable even when other causes were present.

• R v Benge (1865)

  • Foreman negligently supposed that next train not due for hours. Signalman and driver was also negligent.

  • Held that if the defendant's negligence mainly or substantially caused the accident, it was irrelevant that it might have been avoided if other persons had not been negligent.

• R v Pagett (1983)

  • No novus actus interveniens as only be a break in the chain of causation if the actions of the third party were 'free, deliberate and informed. This was not held to be the case here.' Goff LJ using words of Professor Hart.

  • The police officers' actions were neither free nor deliberate as automatic self defense.

Intervening Medical Treatment

• R v Jordan (1956) 40 Cr.App.R. 1

  • D stabbed the victim. V was taken to hospital where he was given anti-biotics after showing an allergic reaction to them as well as excessive IV liquids despite showing intolerance.

  • Court held this was ‘not normal and palpably wrong treatment’ therefore a NAI.

• R v Smith [1959] 2 Q.B., 423

  • The defendant, a soldier, got in a fight at an army barracks and stabbed another soldier. Medics dropped injured soldier twice on route and gave treatment described in court as ‘incorrect and harmful…palpably wrong’.

  • Court held that the initial wounding by the defendant was still an operative and substantial cause of death.

• R v Cheshire [1991]

  • Attempt to reconcile Jordan and Smith.

  • D shot a man in the stomach and thigh by fish and chip shop. Operated on but developed breathing difficulties. Given tracheotomy, over a few weeks the scar tissue tightened and V died of suffocation. Convicted of murder.

  • Beldam LJ:

    • “Treatment which falls short of the standard expected of a competent medical practitioner occurs only too frequently for it to be considered abnormal”

    • “It is only in wholly exceptional cases where positive treatment is given that can be viewed as an independent cause of death”

    • It is an extraordinary, exceptional or unusual case where medical negligence intervenes. The medical negligence must be so potent as to make the initial cause insignificant.

Causation and Drug Supply/Administration

• R v Kennedy(No.1) [1999]

  • D prepared a solution of heroin filled a syringe and handed it to Mr Bosque, a fellow resident at a hostel. V injected himself and died. D convicted of supply drugs and constructive manslaughter.

  • CA held that the unlawful act was Bosque injecting himself, which the appellant assisted.But CA wrong as we cannot assist or encourage crime of self-manslaughter.

• R v Dias [2002]

  • Similar facts to Kennedy. D found not guilty. Keene LJ held ‘the chain of causation was probably broken by (the) intervening act of the deceased injecting himself’.

• R v Rogers [2003]

  • Rogers not only supplied the heroin but helped the victim to raise a vein using a tourniquet. Held Rogers was a joint principle in the act and guilty of manslaughter.

• R v Kennedy (No.2) [2005] CA

  • Followed Rogers. Conceded they were wrong in 1999 as Kennedy had not assisted or encouraged manslaughter, but in fact held joint responsibility. Therefore still guilty but under s.23 manslaughter. V and D were joint principals.

• Kennedy (No 2) [2008] HoL

  • Lord Bingham swept away ten years of case law.

  • Follows Latif: where the victim makes free, deliberate and informed choice to ingest the drug we get a novus actus interveniens.

    • Kennedy had not administered the drug, he had not caused the death. Therefore, not guilty.

    • It is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection. Not in this case.

The Thin/Egg-Shell Skull Rule

• We take our victim as we find them

• R v Holland (1841) - D cut V’s finger. V failed to seek medical assistance. Gangrene set in, V was advised to amputate arm. V died two months later.

  • Held that the defendant was liable for his death; cannot argue that the victim ought to have taken better care of himself.

    • At the time it was not unreasonable to reject amputation/hospital treatment.

• R v Blaue [1975] - The defendant stabbed an 18 year old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life.

  • This was not a novus actus interveniens.

  • Professors Semester and Sullivan argue one way to analyse Blaue is to see an unlawful act by D, followed by an omission by the victim and then death.

• R v Dear [1996] - Father of 12 year old sexually assaulted by V. D slashes V with Stanley knife. Subsequent to receiving medical treatment, the victim reopened his and died. Held this was not a novus act

  • Rose LJ: we shouldn’t look to the victim to see if he had treated himself with gross negligence or neglect, the issue is whether the acts of the defendant were still a significant and operating cause of death.

‘Fright and Flight’ Cases

• R v Roberts (1972) - V was a passenger in Roberts' car. She was terrified by Roberts' unwanted sexual advances and jumped out of the moving car, suffering injuries in the process.

  • Roberts was convicted of ABH. CA held there is no need to establish an intention or recklessness as to the level of force under s.47. It is sufficient to establish that the defendant had intention or was reckless as...