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Diluting causation principles in Irish Criminal Law – Ensuring the jury have the tools to find that needle in the haystack

Diluting causation principles in Irish Criminal Law – Ensuring the jury have the tools to find that needle in the haystack

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An essay for the 2012 Undergraduate Awards Competition by Aidan Forde. Originally submitted for Law at Griffith College Dublin, with lecturer Professor Finbarr McAuley in the category of Law
An essay for the 2012 Undergraduate Awards Competition by Aidan Forde. Originally submitted for Law at Griffith College Dublin, with lecturer Professor Finbarr McAuley in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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05/13/2014

 
Diluting causation principles in Irish criminal law – Ensuring the jury have thetools to find that needle in the haystack 
Keywords:
Causation, Codification, Euthanasia, Reform, Practicality
Abstract:
The perpetrators acts which cause death or serious injury clearly serve as a core element of anycriminal prosecution. I outline that causation principles within the common law are currently in a stateof disarray. There exists conflicting complicated legal principles which have lead to increasedambiguity and confusion. Essentially, I outline that if the jury do not have the fundamental tools interms of clear legal formulae, such ambiguity is inevitable. Clarity is especially important within thecriminal law as it is usually what first springs to mind when citizens think of law and the role it plays insociety. The criminal law as a result is at the forefront of correspondence between the legislature, judiciary and the citizen thus clarity and predictability should be of paramount concern. I criticallyexamine the legal principles relating to causation such as factual and legal causation. I then proceed tolook at issues relating to medical intervention in discontinuation of life support, and the fact that it isthe defendant on trial and not the medical professionals. I give particular analysis to Denham CJ in
re A Ward of Court 
even though it’s a constitutional case, there are parameters of criminal law relating tocausation. I proceed to examine the
novus actus interveniens
, critcally outline the
Smyth
and
 Jordan
 principles and contrast the caselaw to evaluate the area. Because of the unsatisfactory position, I look atavenues of reform in particular to the Draft Criminal Code. The Code is currently being considered bythe Minister for Justice, I conclude that this is a valuable foundation for the law relating to causation to be laid out. However, I do ponder that practitioners and jurours might not have the particular tools inorder to properly deal with contentious causation issues. If law students and the most learned of juroursstruggle to grapple with complicated theories, questions arise what expectations do we have of juroursattiburting criminal liability? In every jurisdiction the legislature ultimatly strives for predictability andclarity, this is as I state moreso than any other area of law is exceptionally vital within the criminal law.However, causation principles have been weighed down in complicated rhetoric and for a proper relationship to exist between the citizen and state clarity is required. I outline that the conflict betweentheory and practice should be as little as possible within this area. As a result jurors can feel like theyare drowning trying to decipher what the law is relating to causation, as I look towards the future Iconclude a codified formula could serve as an invaluable aid to help the jury to clearly link thedefendants criminal actions equating to liability.
 
It has been stated “there is no more intractable problem in the law than causation”
1
Clarity is something which is exceptionally important within the criminal law, as theEnglish Law Reform Commission stated in 1989 “since the criminal law is arguablythe most direct expression of the relationship between the state and its citizens, it isright as a matter of constitutional principle that the relationship should be clearlystated in a criminal code the terms of which have been deliberated upon by ademocratically elected legislature” The area of causation can be said to be at a peculiar cross roads, conflicting authorities and principles can lead to ambiguity and Iwill outline that something so essential to Irish criminal law is well deserved of clarity.There are two theories and strategies that the courts have employed in assessingcausation issues, factual and legal causation. A basic and traditional “but for” or 
 sinequa non
test draws the distinction between factual and legal causation. The reality of this distinction is that an individual may be the factual perpetrator of the consequence but not the legal causative one
2
.
 Royall v. The
Queen
3
may suggest that this is asuccinct and useful principle for determining questions of a causation connection, itsmain advantage lying within its simplicity. Michael S. Moore remarks the advantagesas isolating something that we are concerned with, to deduce the events that occurredand figuring out responsibility for them, “did the defendant’s act make adifference?”
4
. Notwithstanding the benefit of its simplicity, the“but for”
 
test has itsshortcomings. The test can be quite broad- there are instances where the victim will be injured and will be receiving medical treatment deducing from the defendants act.It is true that the “but for” causation element will always exist, as such medicalassistance would not be needed if the defendant had not caused injury in the firstinstance. Goff LJ effectively sums up these concerns in
 Pagett 
:
there are many actswhich are
 sine qua
non of a homicide and yet are not either in law, or in ordinary parlance, the cause of it. If I invite P to dinner and he is run over and killed on theway, my invitation may be a
 sine qua non
of his death, but no one would say I killed
1
Criminal Law and Penal Methods Reform Committee of South Australia, Fourth Report,
TheSubstantive Criminal law (1977)
, p.50
2
Glenys O. Williams (21 Dec 2006)
 Intention and causation in medical non-killing: the impact of criminal law concepts on euthanasia and assisted suicide
” at page 90
3
(1991) 172 C.L.R. 378 at 440,
 per 
McHugh J.
4
Michael S. Moore, (March 27, 2009) “Causation and Responsibility” at 84
 
him and I have not caused his death in law.”
5
Arising out of this situation wherebyone or more independent acts were present, each of which could have contributed tothe death of the victim. In such an instance applying the “but for” test could lead tosome particularly controversial results. McAuley & McCutcheon note the victimwould have died as a result of each of the independent acts alone
6
.Applying the “but for” test to the context of a life support machine, it is ineffectivein itself in determining causative liability. It is certainly true that it is onerous to usethe
 sine qua non
theory in differentiating a medical doctor who turns off a life-supportmachine, whom the judiciary would find to be not guilty of the victims death, and the“interloper who does so”
7
 Therefore, there are a number of qualifying principles relating to the
 sine qua non
which I wish to summarize. Firstly, it is irrelevant that there is another cause inexistence where death would not have occurred but for the second cause.
 
A childwith meningitis in
 R v. Dyson
, which would have ultimately led to their death wasdeemed to be an irrelevant secondary consideration. The defendants act was sufficientin determining a causation link and liability to be imposed. The law regards thechild’s death, as occurring from the defendant’s actions.Secondly, the “but for” test would be redundant where the event would havehappened regardless of what the defendant did. In
 R v. Dalloway
8
 ,
the defendant wasdriving a cart without reins. A three year old proceeded to run onto the road and wassubsequently hit by one of the wheels and killed. The “but for” test is not satisfied inthis instance. It occurred by virtue of something the child did. There was no evidenceto suggest negligence on the defendants part.Thirdly, the irrelevance of third party negligence being a contributing causation factor needs to be noted.
 R v. Benge and Another 
9
considered whether liability should beimposed whereby the causation nexus is deduced from the criminal negligence of another. It illustrates that the law of causation strives for practicality. It could not be
5
[1933] VLR 351
 per 
Lord Goff at 287
6
Finbarr McAuley & J. Paul McCutcheon “Criminal Liability” at 241
7
Glenys O. Williams (21 Dec 2006)
 Intention and causation in medical non-killing: the impact of criminal law concepts on euthanasia and assisted suicide”
Page 91
8
[1847] 2 Cox CC 273
9
[1865] 4 F & F 504

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