#14651 - Causation - GDL Criminal Law

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Factual Causation

Sina qua non but for test

R v White

Gradual poisoning of mother who then died of other causes

Held: convicted of attempted murder – the cause of her death was not, factually, his actions

Multiple Causes

The significant contribution test:

R v Dyson

V suffering meningitis from which he died, however the father’s beatings accelerated death as he fractured his skull

Held: murder conviction. The actions were a leading cause of death

• Lord Alverstone: the fact that the child would have died in any event is not an answer to murder charge

R v Cato

D injected V several times with heroin at their request which caused V’s respiratory failure

Held: unlawful act manslaughter

• Lord Widgery CJ: causation satisfied where it is outside of the de minimis range & is “effectively bearing on the acceleration of the…victim’s death”

Legal Causation

D’s acts must be the substantial and operative cause of the result crime

R v Dalloway

D driving horse & cart without holding reins and a child killed who ran in front of it

Held: D’s acts were incidental to the death – he wouldn’t have been able to stop anyway. The cause of death must be a culpable act – here it was not holding the reins & this did not satisfy legal causation

R v Hayward

D chased wife outside shouting threats at her and she collapsed and died – suffering from a thyroid condition which meant she was more vulnerable

Held: unlawful act manslaughter – you take your victim as you find them so her vulnerability did not override legal causation

R v Clarke & Morabir

V had uneasy relationship with lodgers. He was attacked in his flat & neighbours heard noises which they felt were from one of the lodgers at the time. The lodgers called an ambulance. Resus caused some damage but most injuries in line with assault

Held: causation is a matter of fact for the jury, where the trial judge erred, but conviction safe

R v Hughes

D driving without insurance & was involved in a collision killing V. The crash was entirely the fault of V

Held: (CA) conviction

(SC) Road Traffic Act offence – causing death by driving a motor vehicle when one is uninsured. SC construed the statute on the word ‘cause’ to mean liability will only be imposed by an act or omission of D amount to more than a de minimis cause of death. CA’s ruling would have made D liable for deaths of any passengers in V’s car even if he had survived.

• Legal causation appears to have something to do with moral fault

Intervening Acts

Intervening act = a novus actus interveniens

• Professor Hart: “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”

People v Lewis

D shot V which would have been fatal in a relatively short time, but V slit his own throat

Held: legal causation was satisfied as the shooting was the substantial & operative cause

R v Malcherek

D stabbed V who was then put on a life support machine which the doctors eventually switched off

Held: legal causation satisfied by the stabbing

R v Pagett

D used a pregnant girl as a shield against the fire of police officers attempting to arrest him

Held: the unlawful act against the police, and a dangerous act of holding her as a shield, was the legal cause of the girl’s death

• Causation as a matter of fact for the jury

• D’s act do not need to be the sole cause or even the main cause, as long as the act contributed significantly to death

• Though factual causation is satisfied by someone other than D, this does not stop him being the sole cause in law

R v Latif

D smuggled drugs to UK after being persuaded to by customs officials

Held: entrapment was not found to be a defence here. Causation was not compromised by customs officials because they were acting in consent with the smugglers – they were not an intervening act as they were acting in concert with them and therefore could not extinguish their liability. Confirmed Professor Hart’s definition

This definition is difficult to reconcile with the following case:

Empress Car Company

D convicted of regulatory crime that the seal of their oil tank was inadequate. Vandals let the oil leak & D charged with pollution

Held: the acts of the vandals didn’t extinguish D as the cause.

• Lord Hoffman: the foreseeability of the vandalism meant that the chain of causation could not be broken by their acts – he said it was ‘deliberate’ in this sense

Successful novus actus inteveniens

R v Rafferty

D was part of gang who lured V to a beach and beat him. D then left and when he returned the others had drowned V

Held: his actions were not the substantial or operative causes of death; he had withdrawn from the joint enterprise

R v Carey

D involved in ‘happy slapping’ non-fatal offence. D left - V ran away and died from a heart attack – charged with unlawful act manslaughter based on affray

Held: the unlawful act for manslaughter must be dangerous – the assault was the only thing which could have been considered dangerous. However the assault did not cause the death – it was only a but for cause not a legal cause -> the running caused the death triggered by affray. This was not dangerous for the purposes of UAM.

NB: incongruity with R v Hayward (above)

Drug Administration

R v Finlay

V was injected with heroin and died – prosecuted on the basis that he had injected her and also that he had prepared syringes for her use – jury convicted on second ground

Held: following Empress Car, that the injection was a reasonably foreseeable consequence of preparing the syringe

NB: this extends the foreseeability breed of causation to true crime

Kennedy No. 1

V paid D for heroine & self-injected and died from overdose

Held: (CA) relying on accessoryship principles HOWEVER no crime of self-manslaughter or suicide

R v Dias

D handed heroine syringe over to V who died

Held: (CA) no crime of self-injection or self-manslaughter to which D would have been considered an accessory – conviction unsafe

R v Rogers

D provided tourniquet for V to inject

Held: introduced new principles – found to be the joint principle offender for the unlawful act of S.23 Offences against the Person Act

Kennedy No. 2

The above cases raised concerns about the doctrinal mechanics underpinning the conviction

Held: (CA) adopted the mechanics of Rogers joint principle offenders to bypasses the wording of the act which requires administration of the substance

(HL) unanimous judgment per Lord Bingham for unlawful act manslaughter:

• Free, deliberate and voluntary action by V breaks the chain of causation

• The operating and substantial cause of death is not the supply, but ingestion

• Facilitating the unlawful act is not enough – there must be something more

  • Empress Car distinguished as that was a regulatory crime

  • Rogers overruled – that was an example of facilitating the unlawful act

R v Byram

Held: (CA) if the drug was jointly administered, that would be enough to find liability – facilitating administration not enough (following Kennedy No. 2)

• Cherkassy: argues that liability should be found here based on the foreseeability of injection as a natural consequence – artificial distinction between joint administration & facilitating administration

Michael Kane v HM Advocate (Scots)

D supplied drugs to V who died

Held: (HL) charged with ‘culpable manslaughter’ (Scots) and relied on SA & USA principles of causation which focus on immediacy, directness & foreseeability of the death as a result of the act

Medical Negligence

(Also utilises the significant contribution test)

R v Smith

D stabbed another soldier but he was then dropped twice on route to the army hospital. Treatment given there was ‘palpably wrong’ & misdiagnosed – he died

Held: this was considered the substantiial & operative cause of death and was not negatived by the medical negligence

Commonwealth v Bush (US)

Minor injury & went to hospital, caught scarlet fever & died

Held: the minor injury was not the cause of death because it was not “the natural consequence of the wound”

R v Cheshire

D shot V in a fish & chip shop. V developed respiratory problems but they weren’t life threatening. Tracheotomy performed but scar tissue developed around the pipe & V suffocated

Held: this did not extinguish D’s liability as medical...