Causation

Question 1

Define Causation

Answer 1

For most crimes you must establish the causal link between D’s act or omission and the prohibited result

Causation is a matter for the jury: R v L 2010

Question 2

What are the two elements of establishing causation

Answer 2

Factual: but for test - requires D’s actions to be the “but for” causr of the prohibited consequence (R v White 2010)

Legal: operating and substantial cause (R v Smith 1959)

Question 3

What role does this act need to play in order to break the causal chain?

Answer 3

Note this does not need to be the sole or main cause only more than minimal contribution (de minimis) (R v Dyson 1908)

Question 4

How would we describe a break in the causal chain and what is it - reference

Answer 4

Novus Actus Interveniens- a new intervening act, which becomes the operating cause of death such as a third party intervention (R v Pagett 1983)

Question 5

There are a number of Novus Actus Interveniens categories- name them

Answer 5

• Natural Event
• Act of Third Party
• Medical Cases
• The victim- i.e egg shell skull, drug supply, etc.
• Strict Liability offences

Question 6

Discuss what is meant by a natural event

Answer 6

Sometimes a natural event may become the cause of death-

Note if the event is foreseeable D will still be liable (Perkins)

Question 7

Discuss what is meant by Act of a Third Party- include case law

Answer 7

A free, informed, voluntary act may break the chain

R v Pagett 1983- D held woman in front of them as a human shield and police fired at her- did not break the chain

Michael 1840- a mother gave a woman looking after her child poison to give to the child- mother was held responsible as the woman was unaware and uninformed- innocent agent- did not break the chain)

R v Rafferty 2007- D assaulted a person and left, co defendants seriously assaulted and drowned them- Broke the chain of causation was they were unaware this would happen

Question 8

Discuss what is meant by Medical Cases

Answer 8

where medical negligence results in the ultimate cause of death-

R v Jordan 1956: palpably wrong treatment which was direct and immediate cause of death may break the chain - this was an exceptional case the following cases have since made it stricter

R v Cheshire- although negligent treatment resulted in death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independant and potent in causing death that it renders defendants act insignificant- strict test

R v Malcherek and Steel- medical personnel switching off life support machines in both cases were ultimately the causes of death- the original wound was still the operating and substantial cause of death Jordan is an exceptional case

Question 9

Explain the thin skull rule

Answer 9

The idea you must take your victims as you find them discussed in
R v Blaue 1975- does not break the chain

Question 10

Causation and strict liability

Answer 10

Means you may be legally responsible even if you lacked intent and were not careless

Environment Agency v Empress Car Co 1999- In strict liability environmental offences, a defendant is treated as causing pollution if their actions created the situation that allowed the pollution to escape, unless an extraordinary intervening act breaks the chain of causation.

Question 11

Consider the law on drugs supply in relation to NAI

Answer 11

R v Kennedy 2008- informed individuals of sound mind treated as autonomous, voluntary, and informed decision breaks the chain

However…
recent developments state
R v Rebelo 2021- vulnerability may be a factor
R v Field 2021- different if v did not appreciate the risk, so decision was not truly free or volunary
does this work alongside Kennedy? is reform needed?

Question 12

Note how the law of causation has changed overtime with regards to the significance of injury using case law

Answer 12

Holland 1841- whether the wound inflicted was the cause of death

Dear 1996- whether the original injuries were an operating and significant cause of death

R v Wallace 2018- in relation to euthanasia- controversial question left to the jury

Question 13

What was the suggested reform and its positives and negatives

Answer 13

Draft Criminal Code, clause one- suggested reform by the Law Commission in 1980s tried to write criminal law into statute, however not been acted upon
Current law on causation is largely judge made, complex and spread among many cases

Positives: has clarified causation, covers acts and omissions and makes the test clearer and more predictable, defining when an intervening act breaks causation

Negatives: may oversimplify complex issues such as autonomy, too rigid for complex cases and removes the flexibility current courts use

Question 14

Further reading:Hot topic 1
Should the free deliberate action of the drug user restrict the liability of the supplier?
Explain the facts of the main case

Answer 14

Key Case: Kennedy 2007- D handed V a syringe containing Heroin, following V’s request, V injected himself, stopped breathing, and an ambulance was called, but the victim died
HOL: held v ultimately made a voluntary and informed decision in taking the drugs so the D’s actions broke the chain of causation

Question 15

Should the free deliberate action of the drug user restrict the liability of the supplier
Arguments for the answer yes:

Answer 15

1.Personal autonomy- Kennedy 2007
HOL held “V makes a voluntary and informed decision”
used Glanville Williams as support- you can encourage someone to do something, even make them more likely to do it but it is up to them to make that decision and they must be held responsible for it- personal autonomy

Question 16

Should the free deliberate action of the drug user restrict the liability of the supplier
Arguments for the answer no

Answer 16

1.Moral concerns
When someone provides the illegal item and closely assists with administering it as in Kennedy- is it really morally sound to assume they were not liable in some way? Hard to argue a completely clear novus actus interveniens the act was not completely independent

2.The Drug itself
Cherkassky questions if the case of death was not the heroin itself or act of injection? Is supplier not the true source of danger, without the drug there would be no death

3.Rebelo 2021 and Field 2021
Demonstrates issues with victim vulnerability and deception- complex issues meaning supplier can still be held liable

4..R v Cheshire
Outwardly supports liability even when the victim ultimately acts voluntarily