CAUSATION SAMPLE

All criminal activity requires the prosecution top prove causation – the link between the D’s
act/omission and the end result. Result crimes are described as criminal offences, that require a
prohibited result as an essential element and the required consequence must happen in order for a
crime to have occurred. In result crimes it is necessary to prove the acts or omission of the
accused significantly contributed to the prohibited consequence. The Prosecution must prove
factual as well as legal causation to discharge their burden of proof beyond reasonable doubt.

Causation is recognised as a challenging issue within the criminal justice system. It has been a
subject of discussion for scholars for years, however the precise definition does not exist.

Factual causation

In trials, firstly a factual causation must be established by applying common sense. The
definition of factual causation appears to be straightforward: the defendant can only be regarded
as liable, if his conduct specified in the actus reus is the ‘but for cause’ of the prohibited
consequence- the consequence would not have occurred as and when it did but for defendant´s
conduct. This is commonly referred to as a ´but for´ test. If the consequence would have occurred
just as it did irrespective of the defendant’s act or omission it is not caused by the defendant. In
White, the Def was not accountable for the death of his mother, whose drink he had poisoned,
when she died of a heart attack before taking the poison. Nor would White have been
accountable had his mother swallowed the poison but died of a heart attack before the poison
began to work. However, it would have been different if, in the latter case, the heart attack was
prompted by the initial effects of the poison. In these circumstances, the but for principle
operates, because the heart attack is not independent of the initial act of the defendant and so
forms the final link in the causal chain.

To be the factual cause of a criminal harm, D does not have to start the process leading to the
consequence; it is enough that D accelerates it as seen in the case of Dyson. To be the factual
cause of a criminal harm, the causal connection does not have to be direct. In Mitchell, the
accused punched a man and the man fell on top of an 89-year-old woman, which initially broke
her leg and consequently caused her death from a pulmonary embolism. The accused’s
conviction for manslaughter was upheld on appeal. He was a but for cause. In the words of the
Draft Criminal Code, he did an act which made ‘a more than negligible contribution’ to the
consequence’s occurrence.

This test of causation is relatively simple and has been applied consistently and fairly over the
years. If a person is not the factual; cause of the prohibited consequence, then he will not be
liable.

Legal causation
To be held accountable for a criminal harm, the defendant must, as a minimum, be the factual
cause of that harm. But the criminal law requires something more to convert the factual cause
into the legal cause for there to be criminal liability. This is because it is quite possible for a
person be the factual cause of a criminal harm but it would be unfair for him to be legally
responsible for that criminal activity. At it’s very core – the idea of whether

Legal causation is closely connected to ideas of responsibility and culpability. If the culpable act
did not contribute to the consequences, legal causation will not be established even if the
defendant had been grossly negligent in performing the act. In R v Dalloway, the jury acquitted
the defendant because the childs death could not have been avoided by using the reins and hence
was not legally attributable to the defendants negligence. The culpable act must be a more than
minimal cause of the consequence: In R v Pagett, Robert Goff LJ stated that the ‘accused’s act
need not be the sole cause, or even the main cause, of the victim’s death, it is enough that his act
contributed significantly to that result. This in itself is a very technical concept as the jury has to
decide what amounts to more than minimal for them to conclude if the D’s act/omission led to
the end result or not. Thus, the test for legal causation is a moral consideration which cannot be
applied consistently.

3rd paragraph

The rule on causation are unfair especially in light of think skull rule. If the victim is susceptible
to physical injury relating to detoriating health for example brittle bones, heamophilia; and the
death is caused by an injury, that would not have been fatal in a person of good health, the blame
is attributed to the defendant. This condition is not only applicable to health factors, but religious
beliefs and mental conditions too. In case of Blaue the victim died after refusing a blood
transfusion, as it was contradictory to her beliefs. Despite experts suggesting her death would
have been evitable, if not for her decision, the chain of causation was not broken according to the
court and the defendant was convicted. In Hayward’s, the woman’s physical health was
considered and the husband was held criminally lible for her death. It has been argued that the
think skull rule – take your victim as you find him is very harsh and can lead to unfair results . It
can be seen as being unjust for the defendant to be held accountable for a more serious injury
which has resulted from the victims existing medical condition-something which is totally
unrelated to the offence. Furthermore, the extension to religious beleifs was unnecessary and
leads to dire consequences for the D.

4th paragraph:

Moreover, the rules in relation to third party intervention between the D’s act/omission have also
led to unfair results at times. It stems form the principle known as Novus Actus Interveniens. It
translates as a new intervening act. In English law there are a few principles regarding this
doctrine. Three main principles are covered in this paragraph. Only a natural event which is
extraordinary or not reasonably foreseeable can be perceived to cause a break in causation as far
as act of God goes.

In cases of third party interventions- only ´free, deliberate and informed´ (R v Paggett) also
referred to as new, independent and potent intervention by another person can break the causal
chain between defendant and the result. However, the main issue of ambiguity and unfairness is
in connection with medical negligence. In R v Smith – the courts held that the chain remained
intact as the D’s act remained the ‘operating and substantive’ cause of death which in case it was.
It would only break if the second even of medical negligence was so overwhelming that it would
make the previous cause ads a matter of history. It has been argued that this was exactly the case
in the case of Cheshire but the courts did not let gross medical negligence break the chain of
chain of causation even though the would had almost healed and the D died due to the
negligently performed procedure. It has been argued that these laws are protecting medical
practitioners ad allowing them to escape criminal consequences for their negligence at the cost of
the D having to pay for their negligence. However, the case of Jordan clarifies that medical
practitioners will be held accountable if the treatment is palpably wrong and the chain will break
but there have not been many cases where this threshold has been satisfied.

The problem with these judgments is that no clear principle was stated for determining when the
chain of causation might be broken by medical treatment. There is no clear definition of an
‘extraordinary case’. The contrasting outcomes in the above cases depict inconsistency in the
application of the principles of causation.

Furthermore, cases involving self drug administration has also led to significant uncertainty and
unfairness. In cases that V injects themselves with heroine, there are contradicting cases. Explain
outcomes in R v Kennedy, R v Dias and R v Rogers. Outline the second decision in R v
Kennedy.

The cases are all a few years apart, yet the outcome is different on similar facts- inconsistency.
The CoA’s second decision in Kennedy all but defies rational explanation since Kennedy had
performed no act beyond supplying the heroin filled syringe. He had not participated in the
‘injection process’. The CoA, while appearing to resolve some problems relating to causation
leaves the law on complicity in a state of utter confusion.

Lastly, the actions of the victim itself can lead to a break in the chain of causation. If the victim’s
response is reasonably foreseeable it will not break the chain, but if the response is ‘daft’ it will.
Outline Williams and R v Roberts.

A major problem with the law on causation is the lack of any discernable criteria in the cases for
determining what would constitute a novus actus interviens. The jury applies different standards
to different cases. The cases on victims own self-injection of heroin demonstrates this. The issue
of causation depends on whether the intervening act was reasonably foreseeable and whether it
was extraordinary or unusual. This criteria has not been clearly defined, leading to a
inconsistency and perverse outcomes. the law of causation is clearly in need of greater
ratiolisation, particularly in context of causal responsibility and the application of novus actus
interveniens. Due to new cases emerging every day, the criminal justice system and laws should
follow and be reformed in order to establish justice.