Causation

Causation
• Causation requires that by the defendant’s act or omission, that it
caused the resultant harm envisaged by the offence.
• In most cases, causation is not a contentious issue because D hits V
over the head with a bottle and V dies.
• However, where causation is contentious then the two principles of
causation that must be explored in greater depth are:
- Factual Causation – known as the ‘but for’ test
- Legal Causation – is the D legally responsible for the harm caused to
V?
NB – even where causation is not contentious, you must still make-out factual and legal causation
 Factual Causation: ‘But for test’
The Defendant cannot be regarded as the factual cause of an event if the
event would have occurred in the same way without the Defendant’s conduct.

The ‘but for’ test can therefore be explained as follows:

For the Defendant to be liable, it must be proved that, ‘but for’ the Defendant’s
conduct, the event would not have occurred ie – if he had not acted/failed to
act the victim would not have died

R v White [1910] – D put cyanide in his mother’s drink. She was found dead
with the glass partly full but died of heart failure not poisoning.
Factual Causation: The Principles
• There are a number of legal principles that need to be
considered when determining whether the ‘but for test’ is
satisfied. They are:
1. The result must be attributable to the Defendant’s
culpable act
2. The Defendant’s act must be more than a minimal cause
of the result
Factual Causation: 1. The result must be attributable to the Defendant’s culpable act

Dalloway (1847) – D driving horse and cart without holding the

reins. A boy ran in front of the horse and was killed.

Not holding the reins did not contribute to the death because
even if he had been holding the reins, he would not have been
able to avoid hitting the child with the horse– i.e. but for test
not satisfied
Factual Causation: 2. The Defendant’s act must be more than a minimal cause of the result

• R v Hughes [2013] – where the D was charged with death by dangerous

driving without insurance and a driving licence for hitting a pedestrian whilst
on the road. The court held that in the absence of any dangerous driving, the
mere fact that the defendant was on the road without insurance and a
licence did not mean that this caused the death of the victim – the fact that
the D was on the road was a minimal cause of the death.
• ‘there must be something open to proper criticism in the driving of the
defendant, beyond the mere presence of the vehicle on the road, and which
contributed in some more than minimal way to the death’
Legal Causation
• Although factually the defendant’s conduct may be the cause
of the prohibited result, he/she may not be legally
responsible for it on that basis alone.
• Legal causation must also be satisfied and that requires
there to be an ‘unbroken chain of causation’ from the
defendants conduct to the prohibited result.
• This means that where there is a novus actus interveniens
(an intervening act by another) then this may break the chain
of causation, rendering the defendant not liable for the result.
Legal Causation: The Principles
There are a number of legal principles that need to be
considered when determining whether there has been a novus
actus .They are:
1. The defendant’s act need not be the sole cause of the
result
2. You must take the victim how you find him/her
3. Recognised intervening acts or events
Benge (1865) – Actions of others contributed significantly to the
death.
1. Legal Causation: Need not be the sole cause
• D, foreman, misread the timetable so the track was up when the train came.
He had sent the signal man only 500 yards up the track instead of 1000
yards that was required by company regs. D saying there would have been
no deaths if the signal man had gone far enough up the track and driver
kept a lookout.

• Held if D’s conduct substantially or mainly caused the accident then it does
not matter if it could have been avoided if others had not been negligent.
1. Legal Causation: Need not be the sole cause cont...

R v DJ & others [2007] EWCA Crim 3133

• Defendant’s spat, insulted and threw stones. V had fatal
arrhythmia (heart) attack. Drs unable to say if insults and
spitting or stone throwing caused death.

• Appealing insufficient evidence for the jury to safely

conclude that it was the unlawful and dangerous act of
stone-throwing, rather than the abuse, spitting or some
other event, which had been a significant contributory
cause of V's death.
1. Legal Causation: Need not be the sole cause cont...

R v DJ & others [2007] EWCA Crim 3133

• CA: Ds not guilty of MS unless death caused by their unlawful &
dangerous acts. Likely to have been combination of events caused
heart attack.

• Impossible for jury to conclude insults & spitting had not been the sole
cause of death by producing a rush of adrenaline resulting in a fatal
arrhythmia.
2. Legal Causation: You must take the victim how you find him/her – Egg Shell rule

• The Defendant will still be liable if the victim has a pre-existing condition rendering
him/her unusually vulnerable to physical injury
• Can’t use that V is particularly susceptible to injury – e.g. Haemophilia as an
excuse

• Hayward (1908) – D heard to say he was going to be ‘giving his wife something’.
Chased her over the road and she collapsed and died from abnormal condition
where fright and exertion could cause death.
• Take person how you find him/her!
2. Legal Causation: You must take the victim how you find him/her

Principle in Haywood extended to non-medical conditions

cases

R v Blaue [1975] – religious belief – Jehovah’s Witness. V

refused blood transfusion. The Defendant was liable for the
unusually serious consequences of the victim refusing blood
transfusion, which was death.
2. Legal Causation: You must take the victim how you find him/her – subsequent conduct of victim

Suicide
R v Dear [1996] – D attacked V because of alleged sexual assault on his daughter. V
committed suicide. D’s conviction for murder upheld although V may have intentionally
aggravated his wounds

• Ct accepted suicide could break the chain of causation if V would not have killed
himself but for those injuries D caused his death. (No break)
• V commits suicide for reason other than attack on him - breaks the chain of causation
– unconnected to the attack (be a break) – so if killed himself because of shame about
sexual assault that would break the chain.
 2. Legal Causation: You must take the victim how you find him/her – subsequent conduct of victim

Self – Neglect
• Will not break the chain of causation ie does not prevent legal causation

• Walls case (1802) – Governor of colony sentenced V to 800 lashes - V aggravated

injuries by drinking.

• Holland (1841) – D cut V on the finger. V refused to have it amputated and then got
lockjaw. Held did not matter if the injury was instantly mortal or became so because V
did not get best treatment – ‘real question is, whether in the end the wound inflicted by
D was the cause of death’. It was here as an issue of fact’.
3. Legal Causation: Recognised common law intervening acts or events

1. New intervening causes

2. Actions by third party

3. ‘Escape cases’

4. Medical treatment

5. Supplying drugs
3.1 Legal Causation: New intervening causes

• R v Rafferty [2007] Example of new intervening act.

• R with Co Ds attacked V on beach. R took V’s card to cash machine.

While away others did further injury to V and left him in the sea where
he drowned. Co-Ds found guilty of murder.

• Judge’s direction to jury - R guilty of murder if he intended his assault

would cause really serious harm and there was a causal link between
any injuries he was responsible for and the death, but MS if there was
no intent to cause really serious harm but a causal link still remained.
3.1 Legal Causation: New intervening causes cont...
• Appeal:
• Q: Was causation a sufficient basis for R's conviction for MS
on the assumption that he was not a party to the violence
following his departure?

• Held R was not a party to the later violence.

• The act of drowning was a new and intervening act in the
chain of events.
• R had only been party to the assaults that did not lead to
3.2 Legal Causation: Acts by third party

General rule - act by a third party will break the chain of

causation where it is ‘free, deliberate and informed’ –
R v Pagett (1983)

• Principle – is it reasonably foreseeable?

• What sort of test is this? Objective or subjective?

3.2 Legal Causation: Acts by third party - exceptions

• Pagett – D held girlfriend as hostage in front of him and shot at

policemen. A policeman instinctively shot back and killed the
girlfriend. D liable for MS of girlfriend.

• Chain of causation not broken when

o reasonable act of self-defence in response to D’s act

o or reasonable act done in the execution of a duty to prevent crime or

arrest offender
 3.2 Legal Causation: Acts by third party - exceptions
• The chain of causation will not be broken where the intervening act was ‘not
so extraordinary as to be unforeseeable’

• Environment Agency v Empress Car [1999] D had diesel outlet on land and
someone opened tap and contents polluted river. Charged with s85(1) Water
Resources Act 1991

• D liable because vandalism was ‘not so extraordinary as be to unforeseeable’.

• Decision may be confined to pollution cases.

3.3 Legal Causation: Escape cases
The chain of causation will not be broken where the Victim kills or
injures themselves whilst trying to escape from the act by the
defendant.

Must be reasonably foreseeable.

• Roberts [1971] – not so ‘daft a reasonable person would not foresee

it’. Jumped out of a car when D molested her. Speed issue.
3.3 Legal Causation: Escape cases

R v Williams & Davis [1992]

• Modified Roberts

• V’s response must be ‘within the range of responses which

might be expected from a victim placed in the situation
which he was’ – Williams [1992]

• Response must be proportionate to the threat and not so

daft as to make it his own voluntary act – ibid
 3.4 Legal Causation: Medical treatment
• Where there is negligent treatment after injury, then this
may break the chain of causation

• Jordan (1956) – D stabbed V and wound treated and

healed. Died as result of intolerance to injection

• Held ‘palpably wrong treatment’ might break chain but no

clear principle (set in own facts therefore not followed now)
3.4 Legal Causation: Medical treatment cont...
R v Smith [1959]
• D stabbed V twice. Another person dropped V twice on the
way to hospital. Hospital staff busy with others from fight and
did not realise how serious V’s injuries were
• Gave treatment that was ‘thoroughly bad and might have
affected his chance of recovery’.
3.4 Legal Causation: Medical treatment cont...
Smith held
‘if at the time of death the original wound is still an operating and
substantial cause, then the death can be properly said to be the
result of the wound. Only if it can be said that the original wound
is merely the setting in which another cause operates can it be
said that the death did not result from the wound. Putting it
another way, only if the second cause is so overwhelming as to
make the original wound merely part of the history can it be said
that the death doesn’t flow from the wound’.
3.4 Legal Causation: Medical treatment cont...

Leading case - R v Cheshire [1991]

• The court moved away from whether the ‘original wound was
still operating and substantial cause of death’ to asking
whether the death attributable to D’s acts

• Facts – V shot in leg and abdomen but had to have a

tracheotomy to help breath. Died from the respiratory
problems two months later due to narrowing of windpipe
caused by tracheotomy – rare not uncommon complication.
 3.4 Legal Causation: Medical treatment cont...
• Murder conviction upheld because respiratory problems were a direct
complication of D’s acts and they remained a significant cause of the
V’s death. Have D’s acts caused death?

• Only in the most extraordinary/unusual cases should medical

negligence cause a break in causation.

• The court said ‘the jury should not regard it as excluding the
responsibility of the accused unless the negligent treatment was so
independent of his acts, and in itself so potent in causing death, that
 3. 5. Legal Causation: Supplying drugs

• Look at in more detail later in course

• Rules of causation apply

• Problem with supply of drugs – where V dies - can supplier

be charged with MS where D injects himself? What if D helps
V to inject himself?

• Series of cases where different CA said different things –

incoherence)
3. 5. Legal Causation: Supplying drugs
HL – R v Kennedy (2007)
• Certified Q

• When is it appropriate to find someone guilty of MS where

that person has been involved in the supply of a class A
controlled drug, which is then freely and voluntarily self-
administered by the person to whom it was supplied, and
the administration of the drug then causes his death?
3. 5. Legal Causation: Supplying drugs
• Criminal law assumes existence of free will (para. 14)

• D is not to be treated as causing V to act in certain way if V

makes a voluntary and informed decision to act in that way
rather than another.

• Approved Prof. Glanville Williams Finis for Novus Actus

(1989) 48(3) CLJ 392
Homicides

Are several offences of unlawful homicide e.g.

• Murder
• Manslaughter (MS)
• Infanticide
• Causing death by dangerous driving
• Common elements – the AR
 Murder – a result crime
• Definition – LCJ Coke
‘murder is when a man of sound memory and of the age of
discretion, unlawfully killeth within any country of the realm any
reasonable creature in rerum natura under the king’s peace, with
malice aforethought, either expressed by the party or implied by law
[so as the party wounded, or hurt, ect die of the wound or hurt, ect
within a year and a day after the same’

• Simplified – Murder is ‘the unlawful killing of a human being under

the Queen’s peace with an intention to kill or cause grevious bodily
AR of Murder
• Unlawful killing
• Which causes death
• Of a human being
• Under the Queen’s peace

• These elements of AR (only) are common to all homicides

AR of Murder: AR – Unlawful Killing

A killing is unlawful where it is not justified Williams (1984)

There may be some instances where it is justified e.g. self

defence – so lawful
AR of Murder – Killing causes the death
Causation
• ‘but for’ test and legal causation both to be satisfied

Death
• If a person is not dead then they cannot be a victim of
homicide – a defendant may be liable for attempt to kill.
• What is death?
• Malcherek and Steel [1981] – ‘brain stem death’
• Airedale NHS Trust v Bland – dicta suggests that brain death
AR of Murder: human being
Not usually contentious unless discussing foetuses

• To be a victim of homicide, child must be ‘in being’

• A foetus is not a human being legally

• Child must be wholly expelled and have an independent

existence – Poulton (1832)
AR of Murder: Queen’s Peace
• Seems everyone is under Queen’s Peace may not really mean
much

• Soldier killing during war

• Alien prisoner of war is under Queen’s Peace