Law of Causation Essay

Critically explain and discuss the law of causation, covering all relevant issues, including the general principles of causation and the situations in which the chain of causation is broken.

 

Result crimes are described as criminal offences, that require a prohibited result as an essential element and the required consequence must happen in order for a crime to have occurred.[1] In result crimes it is necessary to prove the acts or ommision of the accused significantly contributed to the prohibited consequence[2]. This is a concern of ´causation´ in criminal law. Causation is recognised as a challenging issue within the criminal justice system[3]. It has been a subject of discussion for scholars for years, however the precise definition does not exist. Firstly the commmonly used definitions of causation are provided. To understand the notion of causation, general principles are discussed, supported by case law. The second part focuses on the intervening causes doctrine; its limitations and challenges it presents in the justice system.      

Causation

The need for law of causation arises mostly in the context of homicide cases, although it is demanded in all result crimes (murder, criminal damage). As previously mentioned, various definitions and approaches of causation are present in the literature. The mostly accepted is the two-tier definition, that causation in both criminal law and torts consists of two highly different requirements for liability of the accused.[4] Attribution of causal responsibility is a step towards the subsequent attribution of criminal culpability. 

Factual causation

In trials, firstly a factual causation must be established by applying common sense. The definition of factual causation appears to be straightforward: the defendant can only be regarded as liable, if his conduct specified in the actus reus is a sine qua non of the prohibited consequence- the consequence would not have occurred as and when it did but for defendant´s conduct.[5] This is commonly referred to as a ´but for´ test. Despite some cases bringing out the limitations of the principle´s application, it is mainly viewed as an accurate theory by law practitioners. According to Moore[6], this contrafactual theory cannot be the sole theory of establishing factual causation as in a few situations, the ´but for´ test presents an issue. Firstly, overdetermination, or two actors each do things which would cause the result, so that the contribution of neither of them was necessary for the outcome, and the effects of their contributions cannot be separated.[7] In homicide cases, if the sole cause of the death cannot be stated, all the actors can be deamed responsible- joint principals.[8] An example might be the case People v Lewis[9]. The defendant shot a victim in the abdomen, the victim knowing this wound was fatal then proceeded to cut her own throat. It was argued that even though the knife wound could have been a sole cause of the death, both of the injuries sustained a causal chain. However, it was concluded the wounds altogether produced the death and the defendant was found guilty of manslaughter. Another challenge arises when the act by defendant would normally accelerate the death, but in special circumstances, the life was prolonged.  As suggested by Hart and Honore[10], an example would be: the defendant poisoned the victim so the victim was too ill to sail on a voyage and the victim died a day after the ship dissapeard with everyone aboard. The life of victim was prolonged, but the defendant´s conduct stays the same and would be liable for manslaughter.

Legal causation

Despite a particular connection viewed as strong enough to establish causal responsibility, a legal causation has to be established. Legal causation has four main requirements.[11] Firstly, the harm results from a culpable act (except thestrict liability offences). As illustrated in Dalloway [1847] 2 Cox 273 and Hughes [2011] EWCA Crim 1508, the defendant cannot be deamed liable, even if grossly negligent, if the prohibited consequence would have happened, whether or not he was negligent. Secondly, the actions of accused need not to be the only cause of the harm, but it must be more than minimal. In homicide cases it needs to be decided if the defendant´s act accelerated the be victim´s death in a significant way. In case the defendant´s responsibility is trivial, the offence can be dismissed on de minimis principle. Opposingly to the ´but for test´, this is a result of a moral reaction of the jury[12]. The defendant must take his victim as he is. Under the Thin Skull Rule, if the victim is susceptible to physical injury relating to detoriating health for example brittle bones,heamophilia; and the death is caused by an injury, that would not have been fatal in a person of good health, the blame is attributed to the defendant[13]. This condition is not only applicable to health factors, but religious beliefs and mental conditions too[14]. In case of Blaue [15], the victim died after refusing a blood transfusion, as it was contradictory to her beliefs. Despite experts suggesting her death would have been evitable, if not for her decision, the chain of causation was not broken according to the court and the defendant was convicted. Lastly, there must be no novus actus interveniens. When any intervening event (natural or human phenomenom) breaks ´the chain of causation´, the defendant is not liable for the prohibited result[16].

Novus Actus Interveniens

Novus Actus Interveniens translates as a new intervening act. In English law there are a few principles regarding this doctrine. Three main principles are covered in this paragraph. Only a natural event extraordinary or not reasonably foreseeable can be perceived to cause a break in causation.[17]  In cases of third party interventions- only ´free, deliberate and informed´ intervention by another mature person can break the causal chain between defendant and the result whether or not that intervention is foreseeable. The second is a foresseability principle: interventions can "break" the causal chain, even though they are not free, deliberate, and informed, if they can be refered to as extraordinary.[18] Regarding the victims, the assailant can be perceived not liable, when the victims´ conduct following the defendant´s act is not reasonable under the circumstances. Under this doctrine, the causal responsibility shifts to a later event, relieving the earlier actor . However, the criminal liability does not completely dissapear and the defendant could be liable for an attempt, dangerous conduct or lesser harm. [19] There is a wide range of events and actors, that the law sees as intervening causes, such as negligence, medical interventions, victim´s conduct, drug administration, naturally occuring events, an innocent agent.[20] The following paragraphs are focusing on two categories.  

Medical interventions

In cases where medical professionals are allegedly the third parties breaking the chain of causation, the law has adopted a strict approach. Until the nineteenth century, if the medical treatment  was an immediate cause of victim´s death, despite the treatment being negligent or palpably wrong, the defendant carried full liability for this prohibited consequence.[21] Later on, there have been some inconsistency in the jury´s decisions. For example in the commonly known case of Jordan[22], at the first trial, a stab wound was perceived to be the main cause of death, resulting in conviction. However, at the Court of Criminal Appeal, based on new evidence of two medical professionals claiming the medical treatment of the victim was severely wrong and led to the death, the conviction was quashed. Opposingly in Smith[23] and Blaue[24], it was decided that despite medical professionals´ gross wrongdoing,  the wound was seen as an operating and substantial cause of the death and the criminal liability laid on the defendant. The court´s decision in the latter case is commonly viewed as too particular and depending upon its specififc facts. In recent cases, a medical treatment is only perceived to break the chain of causation, if it is so palpably wrong as to make the original wound and the prohibited conduct of the accused insignificant in the complexity of the circumstances.[25]     

Drug administration cases

The cases, in which the victim administers himself with a deadly overdose of drugs and the defendant either supplied the drugs, assisted, or in any other way encouraged the victim´s self-injection have been a confusing issue within justice system. As suggested in commonly used principles of causation, the victim´s free voluntary deliberate informed act (self-injecting) presents the breaking point in causation, freeing the defendant of liability. Despite this fact, in cases such as Kennedy[26], Dias [27], Finley[28]  the Court of Appeal concluded the opposite. If the actions of the victim and defendant are a combined operation, meaning it was a joint act, the accused can be found guilty. These decisions were criticised by the House of Lords and the cases mentioned in this paragraph were overuled. It is suggested that as long as there is a free will in self-administering the drugs by the victim, the supplier of the lethal drugs can never be held responsible for an unlawful act of manslaughter. While these conclusions may be right in the context of moral, policy and politics, the question of culpability in drug supply cases is unclear.[29] A drug-addicted person can be reasonably expected to inject when presented with drugs, suggesting defensible grounds for culpability charges[30]. In conclusion, the evidence in such cases tends to be fragmentary and the courts have not yet provided united decisions.  

Establishing causation is an inevitable step in all the result crime cases. As suggested throughout the whole essay, the precise definition of causation, regarding laws presents an issue not only in theoretical context but legal practise also. Despite some common ground in the theoretical approaches and case laws , a number of corner cases shows us the inconsistencies and problems regarding causation. Courts, legal practitioners, academics might commonly accept the factual and legal causation and its principles, but the law of causation is clearly in need of greater ratiolisation, particularly in context of causal responsibility and the application of novus actus interveniens. Due to new cases emerging every day, the criminal justice system and laws should follow and be reformed in order to establish justice.

Bibliography

Primary Sources

Cases

Adams [1957] Crim LR 365

Blaue [1975] 1 WLR 1411

Dalloway [1847]  2 Cox 273

Hughes [2011] EWCA Crim 1508

R v Blaue [1975] 1 WLR 1411 Court of Appeal

R v Dias [2002] 2 Cr App R 5

R v Jordan [1956] 40 Cr App E 152

R v Kennedy [1999] Crim LR 65

R v Smith [1959] 2 QB 35

Finley v. United States, 490 U.S. 545 (1989) (US Supreme Court)

People v Lewis  Cal 551 (1899) (Sup Ct of California)

 

Secondary Sources

Books

Allen M. J., Edwards I., Criminal Law (15^th edn, Oxford University Press 2019)

Cremona M., Herring J., Criminal Law (3rd edn, Palgrave MacMillan 2002)

Hart H. L. A., Honoré T., Causation in the Law (2^nd edn, Oxford University Press 1985)

Norrie A., Crime, Reason and History: A Critical Introduction to Criminal Law  (Weidenfeld and Nicolson 1993) 279

Ormerod D., Laird K., Smith, Hogan, & Ormerod's Criminal Law ( 15th edn, Oxford University Press 2020)

E-books

Michael  Moore, ´Causation in the Law´, The Stanford Encyclopedia of Philosophy (Winter 2019 edn Edition, 2019)  https://plato.stanford.edu/archives/win2019/entries/causation-law/ (accessed 5 November 2020)

Journal Articles

Elvin J., ´Causation and Legal Responsibility: ‘Take Your Victim as You Find Him’?´ /2017/ 1 Journal of the Institute of Law 45

Iezzi T., Duckworth M., Schenke S., ´ To Crack or Crumble: Use of the Thin Skull and Crumbling Skull Rules´  [2013] 6 Psychological Injury and Law  156

Simister A. , ´Causation in (Criminal) Law´  [2017] 133 Law Quaterly Review 416

Witjens E., ´Considering Causation in Criminal Law´  [2014] 78 The Journal of Criminal Law 164

 

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[1] Michael J. Allen, Ian Edwards, Criminal Law (15^th edn, Oxford University Press 2019)

[2] Ibid.

[3] Eric Colvin, ´ Causation in Criminal Law´  [1989] 1 Bond Law Review 253

[4] Michael  Moore, ´Causation in the Law´, The Stanford Encyclopedia of Philosophy (Winter 2019 edn Edition, 2019)  https://plato.stanford.edu/archives/win2019/entries/causation-law/ (accessed 5 November 2020)

[5]. Marise Cremona, Jonathan Herring, Criminal Law (3rd edn, Palgrave MacMillan 2002)

[6] n (4)

[7]Ibid.

[8] Erik Witjens, ´Considering Causation in Criminal Law´  [2014] 78 The Journal of Criminal Law 164

[9]People v Lewis  Cal 551 (1899) (Sup Ct of California)

[10] Herbert L. A. Hart , Tony Honoré, Causation in the Law (2^nd edn, Oxford University Press 1985)

[11] David Ormerod, Karl Laird, Smith, Hogan, & Ormerod's Criminal Law ( 15th edn, Oxford University Press 2020)

[12] Adams [1957] Crim LR 365

[13] Tony Iezzi, Melanie Duckworth, Stephen Schenke, ´ To Crack or Crumble: Use of the Thin Skull and Crumbling Skull Rules´  [2013] 6 Psychological Injury and Law  156

[14] n (1)

[15] [1975] 1 WLR 1411

[16] n (11)

[17] Jesse Elvin, ´Causation and Legal Responsibility: ‘Take Your Victim as You Find Him’?´ /2017/ 1 Journal of the Institute of Law 45

[18] Andre Simister, ´Causation in (Criminal) Law´  [2017] 133 Law Quaterly Review 416

[19] n (15)

[20] Ibid.

[21] n (1)

[22] R v Jordan [1956] 40 Cr App E 152

[23] R v Smith [1959] 2 QB 35

[24]R v Blaue [1975] 1 WLR 1411 Court of Appeal

[25]n (15)

[26] R v Kennedy [1999] Crim LR 65

[27] R v Dias [2002] 2 Cr App R 5

[28] Finley v. United States, 490 U.S. 545 (1989) (US Supreme Court)

[29] Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law  (Weidenfeld and Nicolson 1993) 279

[30] Ibid.