Q.

1 Critically discuss whether the principle of Causation in criminal law properly serves its purpose with
particular reference to the concept of “breaking the chain of causation”.

Criminal liability requires the establishment of some prohibited conduct(normally an act but at times
omission), together with an accompanying mental attitude(Mens Rea), in the absence of valid defences.
Actus Reus is the physical or external element of a crime. Academic William Wilson defines actus reus of
any crime as the package of behaviour which forms the substance of a criminal prohibition, in Simple
words. Actus Reus is the conduct(action), element of a crime. The defendant must perform the prohibited
conduct. This is commonly known as the act requirement which further requires there to be a voluntary
bodily movement by the defendant(Bratty v A-G for Northern Ireland)

The foundation of criminal law includes the idea that everyone should be held accountable for their
conduct. Result crimes like murder and manslaughter require both wrongful conduct and harm. When an
accused is charged with a result crime, the prosecution must prove that his act or omission caused the
prohibited consequences. A causal link(a chain of causation) between the prohibited/wrongful act of the
defendant and the prohibited/criminal consequence must be established. Hence it can be said that the
purpose of the principles of causation is to ensure that people are only held accountable for results caused
by the consequences of their actions. This principle is a key factor used to prevent injustice and unfairness
in the process of prosecuting people for crimes.

However, the problem of a break in the chain of causation appears when considering the consequences of
the victim's or a third party's conduct. To understand and evaluate these concepts, it is important to
comprehend how causation is established and how a break in the chain of causation occurs. The chain of
causation consists of both factual and legal causation. Once both have been established, only then can a
person be held guilty of a crime.

Causation is an important aspect of the actus reus of all result crimes but the issue arises most frequently
in cases of homicide(death of a human being).
As Clause 17 of the Draft Criminal Code Bill 1989 indicates, causation involves a two-part inquiry. The
first part is concerned with how causal sequences begin, whereas the second part concentrates on how
once begun, a causal sequence may come to an end. To answer the question of whether this principle is
effective at fulfilling its purpose, we will briefly look into factual causation, legal causation and novus
actus interveniens.
Where causation is in issue, the prosecution must prove that:
a. The defendant's conduct was the factual cause of the consequence (Factual Causation); and
b. The defendant's conduct was the legal cause of that consequence (Legal Causation).

The accused can only be convicted if his or her conduct satisfies both the factual and the legal cause
required for the prohibited consequence. The issue of causation is the one for the jury to decide upon. But
in determining this issue, the jury must apply the legal principles which will have been explained to them
by the trial judge so it is up to the jury to decide if the causal link between the accused conduct and the
prohibited consequence has been established.

The accused conduct must be a ‘sine qua non’(essential requirement of causation) of the prohibited
consequence. In other words, it must be established that the prohibited consequence would not have
occurred as and when it did ‘but for’ the accused conduct. This is sometimes referred to as the but for the
test as per R v White. More clearly, but for the defendant’s act, the victim would not have suffered the
prohibited harm. However, if the result would have happened anyway, no liability would arise on the
defendant.

This helps to establish the causal link, known as the 'but for' test, in a homicide case, the prosecution here
needs to establish but for D's act, V would not have died (White 1910). This is a pre-condition but not in
itself sufficient. Thus in Carey 2006, though the 'but for' test was satisfied, it was not the 'imputable' or
legal cause of her death. The legal cause was a combination of her heart condition and the unnecessary
exertion, neither she nor her doctor knew she had a heart condition. D did punch her in the affray but she
ran 109 yards uphill after the danger was over and died after the run. D's conviction for unlawful act
manslaughter was quashed by CA. According to Hart and Honoré, a factual cause is an event which
‘makes the difference’ between something occurring and not occurring.

As opposed to crimes of commission, the leading case for factual causation for crimes of omission is R v
Morby. Here the court overturned the conviction as it could not be shown that the child’s life could have
been saved if proper efforts to save him had been made. Thus, it could not be proved that the defendant’s
failure to act was the ‘but for’ cause of his son’s death. From a moral standpoint, it could be argued that it
is still unfair that the D was not held liable for the negligence he committed, although that was not the
cause of the ultimate consequence. Yet from a practical and legal standpoint, this judgement is considered
fair and effective.
To be the factual cause of the criminal harm, the defendant does not have to start the process leading to
the consequence. It is enough that the defendant accelerates it (R v Dyson).
In straightforward situations, this never raises a problem. But when there are multiple events leading to
V's death after D's act, then the question becomes critical. This gap within the law when it comes to
multiple events results in inconsistent outcomes which are heavily criticised by many.

Even if factual causation is established, the judge must direct the jury as to whether the defendant’s acts
are sufficient to amount in law to a cause of the result of the offence. As stated by Lisa Cherkassky, to
establish legal causation the culpability (blameworthiness) of the defendant must be proved as well as the
substantial and operative cause of the prohibited consequence. The question of law remains as to whether
a factual cause is capable of amounting to a legal cause of an event.

Legal causation is closely related to ideas of responsibility and culpability. Glanville Williams explains
this second notion of cause as “the further test to be applied to the ‘but for’ cause, to qualify it for legal
recognition, is not a test of causation but a moral reaction”.

The defendant’s act must be the culpable act of the consequence meaning it must contribute to the
consequence to establish legal causation. If the consequence would have occurred in any case, it is not
taken into account how negligent the defendant was and therefore, legal causation will not be established
[R v Dalloway]. It must be shown that the consequence can justly be said to be the defendant’s fault for
which he is blameworthy. The purpose of causation is to hold someone to account for the consequences
of doing wrong. The defendant's act must be the substantial and operative cause of the consequence. The
culpable act must be more than minimal, slight, trifling, trivial cause of the consequence and make a
significant contribution to bringing about the unlawful consequence. The defendant's causal contribution
can not be negligible. To be the operative cause, the defendant's actions should not be a mere part of the
history.

The defendant's act need not be the sole or the main cause of the consequence(R v Benge)
In R v Pagett, it was stated that the accused’s act need not be the sole cause, or even the main cause, of
the victim’s death, it being enough that his act contributed significantly to that result.
Novus Actus Interveniens roughly translates to a break in the chain of causation. It is done when the
defendant objects to the flow of the causation and breaks the causal link. The defence may raise that there
is a new intervening act which may break the chain of causation. (R v Girdler)

Medical negligence is a situation where this can be argued. The courts are reluctant to allow medical
malpractice to break the chain of causation due to the matters of policy and floodgate arguments.
Consider the leading cases of R v Smith and R v Cheshire, where the court held that in both these cases,
bad medical treatment did not break the chain of causation. This consideration of policy might result in
unfairness in some eyes but it must be noted that it is done for the greater good of society.

R v Jordan is the only case where the doctors were accused and novus actus interveniens was accepted as
it was considered that the doctors had provided ‘palpably wrong’ treatment and convicting the defendant
for the doctor’s actions would have been immoral. The main distinguishing feature in Jordan was that the
initial wound had almost healed, but the doctors treated the deceased with drugs to which they knew him
to be intolerant and put him on a saline drip which, through their negligence, introduced too much fluid
into his body, causing death by pneumonia. Here, the palpably wrong treatment was ‘so powerful and
independent of the initial wrongful act’ of the defendant that it was no longer fairly treated as the cause of
death. This shows that in some cases where it is essential, for the sake of justice policy matters can be
overlooked as well, making causation an effective principle to bring justice.

An intervening act of a third party(non-medical negligence) will break the chain of causation if it is:
1. Voluntary,
2. Independent of the initial act,
3. Sufficient in itself to cause the harm suffered by the victim.

This has been considered in several cases and is illustrated by the case of R v Pagett where the jury
convicted Pagett, who appealed against his conviction.

The Court of Appeal rejected Pagett’s appeal and held that there may only be a break in the chain of
causation if the actions of the third party were free, deliberate and informed. This was not held to be the
case here. Goff LJ thought that the police officer’s actions were neither free nor deliberate and informed.
Instead, he considered it to be a reasonable act performed for self-preservation in response to the
appellant’s act.
“A reasonable act performed for self-preservation, being, of course, itself an act caused by the accused’s
act, does not operate as a novus actus interveniens.” Hence the prosecution can also prevent the defendant
from getting away with the result of their actions by this counter-argument to novus actus intervenins.

This analogy was used in R v Watson where the defendant’s conviction of manslaughter was quashed as
it could not be proved that the break-in was the cause of the heart attack from which the victim died. In
the American case of People v Elder, the defendant had struck the victim who collapsed on the ground
and a bystander accidentally stepped on and kicked the victim which eventually killed him. The defendant
was not guilty of homicide despite being the factual cause of the death. The independent and voluntary
act of the bystander broke the chain of causation. In R v Rafferty, the defendant and his friends hit the
victim after which the defendant had left the scene but his friends then drowned the victim. It was held
that the actions of the friends broke the chain of causation and the defendant was found to be not guilty.

The thin skull rule provides that a person who inflicts harm upon another can not escape liability if the
victim owing to some pre-existing infirmity or peculiarity suffers greater harm than would have been
expected as a result of what the accused has done. But simply, the accused must take his victim as he
finds him. The leading case is R v Hayward. Mr Hayward. Similar cases include R v Dyson and R v
Murton. Hence no individual regardless of their distinguished characteristics, will face injustice due to
the principle of causation.

The issue arises in the context of the victim's reaction to the defendant's act(flight or fright cases). When
under an attack or the threat of attack by the defendant, it is plausible to consider that the victim might
attempt to escape the attack or threat. However, it has been necessary for the law to consider when such
escape attempts can amount to novus actus interveniens. The issue falls around the question of whether
the escape was foreseeable by the reasonable man(objective test).

If it was not, then the defendant is entitled to an acquittal and is no longer deemed to be the legal cause of
the death. As per R v Marjoram, only a daft(unreasonable) reaction by the victim is capable of breaking
the chain of causation where it was not foreseeable by a reasonable man.

The leading cases are R v Roberts and R v Mackie. In R v Roberts, the victim’s act of jumping out of the
moving car to escape the defendant who had made sexual advances towards her was held to be a ‘natural
result of the defendant’s action’. Alternatively, in R v Williams and Davis, the chain of causation was
broken as the victim’s conduct was not ‘reasonably foreseeable’ and so, convicting the defendants would
not have been appropriate. Stuart Smith LJ stated, “Victim’s act must be proportionate to the threat, that
is to say that it must be within the ambit of reasonableness and not so daft as to make it his own voluntary
act which amounted to a novus actus interveniens and consequently broke the chain of causation.” It was
also stated that it needs to be considered if the action ‘was within the range of responses which might be
expected from a victim placed in the situation in which he was’. The court also stated that the jury should
‘bear in mind any particular characteristics of the victim and the fact that in the agony of the moment, he
may act without thought and deliberation’. The different sets of tests developed by the courts have given
rise to confusion.

The courts have also considered what the position would be when the victim refuses medical treatment
which results in their death. The leading case is R v Holland. The deceased was attacked by Mr Holland
and suffered a number of wounds which included a severely cut finger. The surgeon advised that he
should have the finger amputated in order to prevent the wound from becoming infected. The deceased
ignored the surgeons advise and after several weeks, the victim contracted tetanus from the wound and
died.

The defendant argued that the cause of death was not the wound but the refusal to accept medical
treatment that would have saved the deceased’s life.

The court held that this was no defence. It did not matter whether the wound was instantly mortal or
whether it became the cause of death because the deceased refused the recommended treatment. What
mattered was that the wound was the real cause of death.

Similarly, this is true even if the victim has neglected to take reasonable precautions(R v Wall)
In R v Blaue, Mr Blaue stabbed a woman several times and pierced her lungs. The victim refused to have
a blood transfusion, as it was contrary to her religious beliefs (Jehovah’s Witness). She was advised that
without a blood transfusion, she would die. She refused to have the transfusion and subsequently died.
The defendant was then convicted.

The Court of Appeal held that the defendant had to take his victim as he found her. As in the case of R v
Holland, the issue to be determined was what caused the prohibited harm. A victim has been stabbed and
after going to the hospital, she did not take blood due to religious belief or other reasons and later died.
The defendant might use this as a novus actus interveniens. But the principle of “you must take your
victim as you find him/her” states that you should have known about the victim’s religious beliefs or the
other reasons before committing the act, so the jury will not consider it and thus there will be no break in
the chain of causation.

Therefore it can be concluded that the principle of causation is complex and intricate and does an
excellent job at establishing justice and fairness. Although there is heavy criticism from the perspective of
moral considerations and inconsistencies. In general, it is certainly an effective principle.