A Causation Approach to Criminal Omissions

Arthur Leavens

Criminal laws that prohibit individuals from causing certain harms forbid particular results, not particular
conduct. There is no reason and no legal basis-for excluding the failures to prevent harms from the law's
ambit. While initially it may seem odd to speak of an omission as the cause of a harm, there surely are
omissions, like the failure to feed one's child, that as a matter of common sense seem to have caused an
ensuing harm such as death. We have thus long accepted criminal punishment of such omissions, but
the limits of this criminal liability nevertheless remain murky.

Conventional doctrine, in apparent adherence to the tentative suggestions of Lord Macaulay over 100
years ago, looks to a legal duty to act to determine which omissions are criminal. This approach is
misguided. The apparent determinacy offered by the term "legal duty" is illusory, and the whole idea of
using legal duty as a criterion for criminal-ity risks reaching wrong results because that term has no
conceptual link to the relevant criminal prohibition-the causation of particular harms.

Since we are punishing omitters for causing prohibited harms, the sensible way to clarify the limits of
such criminality, and thereby to provide fair warning of which omissions are criminal, is by explicit
reference to causation. To be sure, such a measure of criminality is imprecise. There are, however,
commonly accepted notions of causation, related to the paradigm of cause and effect that provide clear
basis for determining which omissions caused a harm.

Considering Causation in Criminal Law

Erik Witjens

According to the dominant view, causation in criminal law is a bifurcated test consisting of cause in fact
and proximate causation. In the first section of this article the theoretical underpinnings of causation are
explored, for instance concerning the underlying interrogations of causal questions in the law. In the
second section, the traditional view on bifurcation is challenged, weaknesses are uncovered, and the
shortcomings of counterfactual tests as a heuristic test for factual or ‘empirical’ causation are assessed.
By reviewing R v Williams and R v Hughes, the third section of the article seeks to elucidate the nature of
the causal requirement in law. It is suggested, that legal influences permeate the causal requirement in
law to the extent that it is dominated by them. The article consequently concludes that the bifurcation
needs to be rejected to better reflect the role of (empirical) causation in criminal law better.

Causation in Criminal Law

Eric Colvin

In offences involving injury to the person, and especially in homicide offences, there may be a degree of
remoteness between the act or omission of an accused and the result which is alleged to constitute an
offence. The eventual result may be the product of additional factors which are more directly connected
than is the conduct of the accused. The function of the law of causation is to identify the conditions
under which the result may nevertheless be attributed to the accused.
Causation is widely regarded as presenting very difficult issues for criminal law. Indeed, in one official
report, it was said: ’There is no more intractable problem in the law than causation’. One source of
difficulty can be readily identified. Since attributing causation to an accused can involve weighing her
contribution against other causal factors, the enterprise has a partly quantitative character. Outcomes
may therefore turn on marginal differences in the magnitude of causal contributions and the pattern of
the cases may be difficult to rationalize.

Another source of difficulty lies in some fundamental features of the culture of criminal law in the
common-law word. A distinction has traditionally been drawn between the material elements and the
mental elements of offences, with issues of fault or culpability being identified with the latter rather
than the former. Under this approach, the material elements are taken to prescribe the harms which the
criminal law seeks to prevent or at least reduce; the mental elements then prescribe the culpability
which justifies exposing actors to measures of penal liability.

This scheme, however, obscures the role of certain general principles and rules respecting material
elements, such as those which pertain to causation. Attribution of causal responsibility is a preliminary
step towards the eventual attribution of criminal culpability to the accused. The goals of the enterprise
as a whole must structure the handling of the preliminary step. Principles and rules of causation in
criminal law are therefore not independent of issues of culpability. The function of these principles and
rules is to identify persons who may be held guilty of offences in the event that the mental elements are
also established?