Actus Reus - Causation

Question 1

Factual causation (1)

Answer 1

• R v White, R v Dalloway
  o But for test – whether but for the D’s conduct the result would have happened

Question 2

Legal causation (2)

Answer 2

• R v Dyson, R v McKechnie
  o D’s act need not be the only or main cause of death
• R v Smith, R v Cato
  o It must be the operating and substantial cause of death

Question 3

NAI - Natural Event (1)

Answer 3

• Perkins
  o If natural event is foreseeable, D will still be liable
  o If D leaves V unconscious after assault, and then earthquake strikes, killing the victim, it would not be homicide
  o If D struck victim on seashore, and knew an incoming tide would drown victim before consciousness returned, it would be homicide

Question 4

NAI - act of third party (3)

Answer 4

• R v Pagett
  o A reasonable act performed for the purpose of self-preservation does not operate as a NAI
  o D shooting at police officers and using gurls body as human shield. Police officers returned fire and officers killed the girl. Court said police officers acting in self-preservation so did not break causal chain
• R v Michael
  o Act of an innocent agent will not operate as a NAI
  o D’s child living with foster mother. Wants child dead and so gives foster mother poison disguised as medicine to the child. Instead foster mother gave it to her own child. Tried to claim that it was foster mother’s fault for causing death as administered medicine/poison. Court disagreed.
• R v Rafferty
  o Rafferty and 2 others beat up victim and stole bank card. Rafferty tried to get money from bank with victims bank card. Whilst Rafferty away, his other accomplices continued to beat victim and put him in sea to drown. The actions of the others was intervening act which relieved Rafferty from being guilty of murder

Question 5

NAI - medical cases (4)

Answer 5

• R v Jordan
  o Medical treatment was palpably wrong and was direct/immediate cause of death, regardless of original wounds, meaning the chain was broken
• R v Smith
  o Only if it can be said that the original wound is merely the setting in which another cause operates can it be said that death does not result from the wound…..Only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound
  o Doctors dropped victim twice on way to army medical tent, failed to realised seriousness of victims injuries, did not administer treatment fast enough. However chain not broken as although it was bad medical treatment, it was not wrong treatment like Jordan, it was still in normal scheme of treatment to deal with wound
• R v Cheshire
  o D’s acts need not be sole or even main cause as long as his acts contribute significantly. Even though negligence in the treatment of the victim was the immediate cause of death, 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 they regard the contribution made by his acts as insignificant
• R v Malcherek; R v Steel
  o The fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for death
  o Jordan was an exceptional case

Question 6

NAI - causation and the victim - the eggshell skull rule (3)

Answer 6

• R v Hayward
  o Have to take victim as you find them – thyroid gland condition would not break the causal chain
• Watson
  o Have to take victim as you find them – pre-existing serious heart condition would not break causal chain
• R v Blaue
  o Must take victim as you find them means the whole man, not just the physical man – extended to religious beliefs
  o Victim Jehovah Witness. Had been stabbed and told they needed blood transfusion to survive. Refuse blood transfusion due to religious belief and died. Their choice to refuse medical treatment did not break causal chain

Question 7

NAI - causation and the victim - victim’s actions (3)

Answer 7

• Holland
  o Question is whether the wound was the cause of death rather than victim’s refusal of treatment
  o D cut victim on finger. Finger infected with gangrene and should be amputated. Victim refused amputation and therefore died – original wound was cause of death so victim’s refusal did not break causal chain
• Dear
  o The only issue was whether the original injuries were an operating and significant cause of death
  o Victim bandaged and sent home from hospital – did victim open wounds themselves as suicide or did wounds open and victim did nothing about it. Court said original wounds were cause of death regardless of victims actions to control the wounds
• R v Wallace
  o D obtained acid and poured it on victim. Victim paralysed, in constant pain and nothing could be done. Victim decided to return home to Belgium where they could lawfully apply for euthanasia and die. They did this. Argued that voluntary act to end own life broke causal chain or doctors choice to end life using euthanasia instead of D – court said victim never would have made decision to be euthanised had he not been attacked by acid. Therefore D’s actions were still cause of death and was guilty

Question 8

NAI - causation and the victim - flight and fright (3)

Answer 8

• R v Roberts
  o Reasonableness test - D attacks victim in car and makes unwanted sexual advances to victim. Victim chose to jump out of car to escape and suffered injuries – causal chain only broken if: actions of victim ‘so daft or unexpected that no reasonable man could be expected to foresee it’
• R v Williams and Davis
  o Need to balance the nature of the threat to the victim’s response – was the conduct proportionate to the threat to not break the causal chain
• Marjoram
  o Reasonable foreseeability is objectively assessed

Question 9

NAI - Drug supply (6)

Answer 9

• Previous law – Dias
  o Chain could be broken by the voluntary and informed act of V self-injecting the drugs, regardless of D’s supply
• Previous law – Rogers
  o D held tourniquet around V’s arm as self-injected. D responsible for the mechanics of the injection that caused the V’s death and therefore responsible for the death
• Previous law – Finlay
  o D prepared syringe and handed it to the victim knowing they would self-inject
  o If victims self-injection of heroin was a normal fact of life, proved by evidence, then act of V would not break causal chain and D’s actions of supplying would still be cause
  o If victim self-injecting was extraordinary event, it would break causal chain and D’s supply would not be cause of V’s death
• R v Kennedy
  o Overruled Finlay and Rogers
  o Informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act
  o D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way
  o V freely self-injecting drugs breaks causal chain
• R v Rebelo
  o D sold diet pills known to be dangerous to V
  o Although V took diet pills themselves, the causal chain remained in tact – if V is acting under addiction or compulsion due to mental health problems, it makes V vulnerable and therefore their actions do not break causal chain
  o Is this really any different to Kennedy – did the court consider the victim more respectable in this case as not a drug user, it was diet pills and therefore more lenient?
• R v Field
  o Relevance of intention of the supplier
  o V believed he was drinking 60& proof whisky in the presence of someone who loved him, not someone who wished for his death – V would not have known the perilous nature of what was occurring
  o V engaging in drinking the whisky was not the result of a free, voluntary and informed decision – he was being deliberately led into dangerous situation

Question 10

NAI - causation and strict liability (1)

Answer 10

• Environment Agency v Empress Car
  o Should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the D’s act, even if it was not foreseeable that it would happen

Question 11

Potential reform to acts reus causation (1)

Answer 11

• Draft Criminal Code, Clause 1
  o Introduces: ‘A person causes a result which is an element of an offence when (a) he does an act which makes a more than negligible contribution to its occurrence’
  o Reform has never actually been implemented

Question 12

Critical commentary of acts reus causation (6)

Answer 12

• Clarkson, Keating and Cunningham –
  o suggest that the drug supply cases reveal a clash between two principles of the criminal law of causation – the ‘reasonable foresight test’ and the ‘voluntary intervention principle’. If the former test is used liability will attach to the supplier as it is clearly reasonably foreseeable that the drugs supplied will be taken (although it is questionable whether death is foreseeable). If the latter principle is relied on, then the chain will be broken by the voluntary taking of the drugs
• Jones
  o Voluntary intervention meant there was a barrier to holding drug dealers criminally responsible for the death of the drug user – more recent cases of Field and Rebelo dealt with this issue and broadened law to make drug suppliers responsible
• Hart and Honoré
  o Only abnormal things are causes – the free voluntary and informed act of a person is an abnormal act which breaks the chain
• Michael Moore
  o D is responsible for hr natural consequences of his actions but not for freakish results
• G Williams
  o D can urge V to do something, which may make V more likely to do it, but they do not cause D to do it
• Sullivan and Simester
  o Field – court could not rest causation purely on D’s supply as too broad basis of criminal liability but instead took facts of Field beyond reach of Kennedy to attribute causal force to D’s undisclosed intent – ensured D received punishment commensurate with culpability
  o Wallace – Expansion of FDI principle to intervention by V needs to be not only free but also ‘unfettered’ by consequences of D’s unlawful act. Court strived to hold D responsible due to moral nature of case but in doing so underestimated the difficulties of the causal issues