Theintio
moralist approach – criminalise Burden of Proof
conduct that is regarded as morally The burden of proof usually rests with the prosecution for both guilty conduct and
blameworthy even if no harm has been necessary state of mind – and also to disproving any potential defences.
caused. Woolmington v DPP [1935] AC 462 - Viscount Sankey LC said: Throughout the web of the
Utilitarian approach – criminalise English criminal law one golden thread is always to be seen, that is the duty of the
conduct that also causes identifiable prosecution to prove the prisoner’s guilt.
harm. Exceptions arise where the defendant must prove the defence of insanity or statutory
defences like diminished responsibility to the offence of murder.
Criminal Cases Review Commission
(CCRC)
Standard of Proof
- Independent body established by s11
Where the burden falls on the prosecution, the court must be satisfied beyond
of the Criminal Appeals Act 1995.
- If convicted after a Crown Court trial reasonable doubt.
and all appeals were refused, D could Where D must prove a defence, they must prove it only on the balance of probabilities
not ask the CCRC to investigate their (more likely than not)
case.
- If the CCRC decides the conviction Evidential Burden
may be unsafe, it can refer the matter D will often have an evidential burden imposed on them.
back to the appropriate appellate This means D must raise some evidence of a fact in issue (usually by the defendant
court for re-consideration. and/or someone else giving evidence in the witness box) so as to convince the court that
the matter deserves consideration.
Thereafter, the prosecution must disprove the issue beyond reasonable doubt.
The evidential burden often arises when the defendant is raising a specific defence.
Actus Reus
According to Lord Hailsham in Haughton v Smith While varying from crime to crime, the actus reus will consist of one or more of
[1975] ‘an act does not make a man guilty of a crime, the following components:
unless his mind be also guilty. (a) an act (or sometimes a failure to act) by the defendant;
(b) the existence of certain circumstances at the time of the defendant’s
Conduct crimes: to be criminally liable, D must act in a conduct;
particular way, the result itself has no impact on (c) certain consequences flowing from the defendant’s conduct.
whether a crime has been committed. State of affairs crimes: the AR will be satisfied simply by the existence of a
particular set of circumstances. D may be liable even if they had no control over
Result crimes: certain consequences must follow from the situation.
a behaviour before the actus reus is established. If the R v Larsonneur (1933) - A French citizen was deported from Ireland to England
element of causation cannot be established, the AR is against her will. She was convicted of an offence of being found illegally in the
not proved. United Kingdom despite the fact she had no choice in the matter.
OMISSIONS
There are four types of actus reus: conduct, result, circumstances, and omissions.
GENERAL RULE: a defendant cannot be criminally liable for a failure to act, as there is no general duty to act to prevent harm
(R v Smith (William)) - “Omission, without a duty, will not create an indictable offence”
Criminal Liability for Omissions
In order to secure a conviction based upon a failure to act, the prosecution must prove that:
(1) Crime is one capable of being committed by an omission.
(2) Accused was under a legal duty to act;
(3) Accused breached that duty;
(4) Breach caused the actus reus of the offence to occur; and
(5) Should the offence so require, that the accused had the required mens rea.
Legal Duty to Act
Common situations when defendant will be under a legal duty to act are by: (1) statute, (2) special relationship, (3)
voluntary assumption, (4) contract, (5) the defendant creating a dangerous situation or public office.
The penalties for ommission under a statutory provision often consist of a fine and possible endorsements on one’s
licence if it relates to a driving offence.
Failing to act when there is a duty to do so imposed by contract or by a special relationship will usually result in criminal
prosecution for the consequences of that omission.
(1) Statutory duty
Under statutes, innumerable offences can be committed by an omission.
, Parents must care for their children under the Children Act 1989.
E.g. Road Traffic Act 1988, s.6(4) – it is an offence to fail to provide a specimen of breath
(2) A special relationship
Examples of special relationships are:
Doctors and patients; Parents and their children; Spouses.
FACTS: Gibbons lived with girlfriend, Proctor, child, Nelly, and Proctor's children from previous
PARENTS relationship. Gibbons gave Proctor money for food. Girlfriend deliberately starved Nelly to death.
HELD: Court of Appeal noted Gibbons living in same house as Nelly. Said he must have been aware of
R v Gibbons and condition of daughter, who little more than a skeleton when she died. If he did not see her, then that is
Proctor (1918) evidence from which jury could have decided he did not care what happening to her and had mens rea for
murder. Gibbons convicted of daughter's murder based on breach of duty as father not to neglect her.
Both children were certain to die in the absence of a surgical procedure to separate them. The operation
Re A (Children
would save one twin, but the parents would not give their consent. The judge observed that the parents
(Conjoined
had a legal duty to the twin, who could be saved. By denying that twin the chance to live, they might be
Twins)) (2000)
guilty of killing her under the principle in Gibbons and Proctor.
(3) Voluntary assumption of a duty of care
A person not generally under a duty to care for another in distress. However, if person voluntarily assumes a duty
towards another, the law will hold that person liable if they fail to carry out that duty.
The basis on which the courts have held a voluntary assumption of a duty of care to exist is often factually specific as can
be seen by the cases that follow:
Held: Edith Proctor also convicted of Nelly’s murder, on basis that Proctor living in same household, in role
R v Gibbons and
of Gibbons’ de facto wife. She looked after ‘family’ while Gibbons went out to work, and received money
Proctor
for housekeeping and food from Gibbons.
Stone lived with mistress Dobinson. Both of low intelligence and described as ‘inadequate’. Both accepted
into their home Stone's elderly, weak and anorexic sister, Fanny. Tried to make her eat but gave up.
R v Stone and
Eventually Fanny confined to bed and Stone and Dobinson failed to get medical assistance. As result Fanny
Dobinson (1977)
died. HELD: Stone and Dobinson convicted of manslaughter, and convictions upheld, on basis that,
although neither under duty imposed by law to care for ailing relative, voluntarily assumed duty.
Victim was at R's house. They were taking drugs. V became unconscious and R tried to revive. Trial judge
directed jury that duty of care could be assumed: V was friend, V was in R's house, R attempted to revive
R v Ruffell
him. Jury told if they decided R had assumed this duty, were entitled to decide whether R had breached
(2003)
duty. Jury decided in affirmative and R convicted.
HELD: Court of Appeal followed approach taken in Stone and Dobinson and upheld conviction.
(4) Contractual
The duty can be owed by the defendant either to the party with whom the defendant is contracted or to a third party.
R v Pittwood Pittwood employed as a level-crossing gatekeeper. He failed to close gate when a train was coming and a
(1902) man was killed by train. HELD: Pittwood's failure to close gate could amount to actus reus of manslaughter
by omission, because he was under a contractual duty to do so when a train was approaching.
(5) Defendant Creates a Dangerous Situation
If person accidently started fire in house, person has duty to take reasonable steps to counteract dangerous situation created.
The steps need only be reasonable, so person would not be expected to risk their own life to save lives of others, but would
be expected to take reasonable steps, e.g. summoning help, warning any occupants of house that it’s on fire, and so on.
R v Miller Miller, squatter, fell asleep in a bed whilst holding lighted cigarette. Awoke to find mattress smouldering,
(1983) but only moved to another room and go to sleep again. House damaged by fire. HELD: Miller convicted of
arson (Criminal Damage Act 1971, s.1(1) and s.1(3)).
HOL held that if someone inadvertently sets in motion chain of events that causes risk of damage, and
that person becomes aware of what happening and can prevent further damage, his inaction or
omission to do so can become actus reus of criminal damage.
(6) Public Office Holders
R v Dytham D police constable, on duty and in uniform, who in early hours of morning saw a man who had been
(1979) evicted from a club being kicked so badly that he later died. D did not attempt to stop disturbance and
when incident ceased he drove off. HELD: guilty of wilfully neglecting to perform his duty.
Omissions and Causation
Relationship between omissions and causation in this context means that if D had acted, could have
made a causal difference.
D cannot cause by omission. D fail to uncause when D duty to uncause, but this different to causing.
E.g. V self-injects dangerous drugs into their own arm and suffers an overdose, cause of V's death is
their own act of self-injection. The drugs causing V to die. But if supplier of drug is present when V
overdoses, supplier will have a duty to try to uncause what V has caused.
,Causation
ACTUS REUS – CAUSATION
Result crime require that the defendant’s conduct cause a particular result.
Result crimes include: murder, manslaughter, criminal damage and assault occasioning actual bodily harm.
Causation is part of the actus reus of these types of offences.
RESULT CRIMES = FACTUAL CASUATION + LEGAL CAUSATION
There are two aspects to causation, both of which must be proved by the prosecution:
Factual causation: jury must be satisfied that acts or omissions of accused were cause of relevant consequences. It must
be proved that “but for” acts or omissions of accused, relevant consequence would not have occurred (R v White)
Legal causation: it must be established that the acts or omissions of accused were a legal cause of that consequence. The
defendant must be “operating and substantial” cause of prohibited consequence (R v Pagett)
In deciding issue of causation, jury must apply legal principles.
FACTUAL CAUSATION: ‘but for’ test
Factually, it must be proved that ‘but for’ acts or omission of the accused, relevant consequence would not have
occurred in the way it did (R v White)
R v White W put poison in drink to kill his mother. She was found dead. It was not clear on evidence whether she
(1910) had drunk any of liquid from glass. Medical evidence showed that she had died from heart failure, not
from poisoning. HELD: W acquitted of murder, as no causal link. He was found guilty of attempted
murder.
R v Cheshire The courts have held that the acceleration of death must be ‘significant’. The Court of Appeal confirmed
[1991] that ‘significant’ here simply meant ‘more than negligible’.
LEGAL CAUSATION: absence of an intervening act which breaks the chain of causation
The law will check the culpability of D before imposing liability and it will require that the defendant is the “ operating
and substantial” cause of the prohibited consequence (R v Pagett)
The key legal causation principles are:
D’s act must be “substantial” cause of prohibited harm (R v Hughes)
The consequence must be caused by D’s culpable act (R v Dalloway)
D’s act need not be the only cause of the prohibited consequence (R v Benge)
R v Hughes Defendant’s act must be “substantial” cause of prohibited harm. “Where there are multiple legally
(2013) effective causes, it suffices if the act or omission under consideration is a significant (or substantial) cause.
It need not be the only or the principle cause. It must, however, be a cause which is more than de
minimis, more than minimal.”
R v Dalloway D driving a horse and cart without holding reins. A child ran in front of cart, struck by wheel and killed. It
(1847) appeared on evidence that, even if D had been holding the reins, he could not have stopped the cart in
time.
HELD: If Dalloway had not been driving cart, child would not have been killed, and in that sense he
“caused” death. However, court held it was necessary to go further and show that death was due to the
culpable element in his act –negligence in not using the reins. Accordingly, D’s conduct was not to blame
for killing and he was acquitted of manslaughter.
R v Benge Benge was foreman of some railway tracklayers. He thought that next train not due for several hours and
(1865) so ordered track to be taken up. He sent a man with a red flag down track to stop any trains. However, this
signalman did not go correct distance and driver of the train was not keeping good look out. Train crashed
and several people killed – D tried for manslaughter.
HELD: If D’s negligence mainly or substantially caused accident, irrelevant that it might have been avoided
if other persons not been negligent. A defendant still be liable even when other causes were present.
Egg-shell Skull Rule
‘Egg-shell skull' rule provides that person who inflicts harm on another cannot escape liability if victim, owing to some
pre-existing infirmity, suffers greater harm than would have been expected as a result of what accused has done.
The defendant must take the victim as they find them (R v Blaue).
Blaue stabbed woman several times and pierced lung. V refused to have blood transfusion, as contrary
to religious beliefs. She was advised that without a transfusion would die. D convicted of manslaughter.
R v Blaue
Appealed against conviction, arguing victim's refusal to have blood transfusion amounted to a novus
actus interveniens. HELD: This argument rejected. D must take victims as they find them.
, Intervening Acts
LEGAL CAUSATION: INTERVENING ACTS
A novus actus interveniens is a subsequent event or act of either the victim or a third party which renders the defendant’s part
in the consequence very small, breaking the chain of causation and meaning that the defendant is not criminally liable.
Courts have been required to consider question of whether chain of causation been broken in number of different contexts
such as: (1) Medical negligence, (2) Acts of a third party, (3) Acts of a victim, (4) Natural events
(1) Medical negligence
Smith stabbed victim during fight. The victim received medical treatment that was inappropriate and
positively harmful and died a couple of hours later. HELD: Smith was convicted of murder, because it
held that his actions remained a substantial and operating cause. The medical negligence, while a
R v Smith cause, was not a sufficient cause to sever the chain of causation.
Lord Parker LCJ: “if at time of death original wound still operating and substantial cause, then death can
properly be said to be result of wound […] only if second cause is so overwhelming as to make original
wound merely part of history can it be said that death does not follow from wound.”
Cheshire shot V twice. Following surgery V developed respiratory problems and required tracheotomy
tube to be inserted. Eventually windpipe became completely blocked and died. At time of death, V’s
original wounds healed.
HELD: CoA held that poor medical treatment did not break chain of causation
R v Cheshire
Beldam LJ: “jury should not regard medical negligence as excluding responsibility of D unless it was so
independent of his acts, and in itself so potent in causing death, that they regard D’s acts as
insignificant”
Overall, courts reluctant to allow medical malpractice to break the chain of causation.
Jordan stabbed a man as the result of a disturbance. The victim died in hospital eight days later.
Additional evidence opined that the death was not caused by the wound but that the medical treatment
R v Jordan was inappropriate. The victim was intolerant to terramycin which was noticed and stopped before being
continued the following day by another doctor. They had also introduced abnormal quantities of fluid
which waterlogged the victim’s lungs. Conviction was quashed.
(2) Acts of third parties
Acts of a third party can breach the chain of causation when free, deliberate, and informed
Using pregnant girlfriend as a shield, Pagett shot at police. The police returned fire and killed girl. The
judge, directing jurors on causation, stated that they had to be sure that appellant fired first at officers
and that act caused officers to fire back, with result that girl was killed. Jury also had to be satisfied that,
in doing so, police acted reasonably, either by self-defence or in performance of their duties as police
R v Pagett
officers. The jury convicted Pagett, who appealed. HELD: CoA rejected appeal and held there may only be
a break in chain of causation if actions of third party were “free, deliberate and informed. Not held to
be case here”. Goff LJ of opinion police officers’ actions neither free nor deliberate. Instead, considered
to be reasonable act performed for purpose of self-preservation.
(3) Acts of the victim
There are three types of acts of the victim:
“Fright and flight” cases, refusing medical treatment, suicide.
'FRIGHT AND Was the victim’s act reasonably foreseeable or was it so daft and unexpected that no reasonable person
FLIGHT' could have foreseen it?
When under attack or threat of attack, it is plausible to consider that victim may attempt to escape
from attack or threat.
Issue falls around question as to whether escape foreseeable by reasonable person.
R v Roberts
Victim passenger in Roberts' car. She terrified by Roberts' unwanted sexual advances and jumped
out of moving car, suffering injuries the process.
HELD: Roberts convicted of assault occasioning ABH. CoA considered accused caused her injuries
and said that victim's reaction would only break causation if it were an act that was “so daft” that
no reasonable person could have foreseen it.
R v Williams and Davis
Appellants gave lift to hitchhiker and tried to rob hitchhiker at knifepoint. Victim jumped from moving
car and died of head injuries. HELD: Appellants convicted of manslaughter.
moralist approach – criminalise Burden of Proof
conduct that is regarded as morally The burden of proof usually rests with the prosecution for both guilty conduct and
blameworthy even if no harm has been necessary state of mind – and also to disproving any potential defences.
caused. Woolmington v DPP [1935] AC 462 - Viscount Sankey LC said: Throughout the web of the
Utilitarian approach – criminalise English criminal law one golden thread is always to be seen, that is the duty of the
conduct that also causes identifiable prosecution to prove the prisoner’s guilt.
harm. Exceptions arise where the defendant must prove the defence of insanity or statutory
defences like diminished responsibility to the offence of murder.
Criminal Cases Review Commission
(CCRC)
Standard of Proof
- Independent body established by s11
Where the burden falls on the prosecution, the court must be satisfied beyond
of the Criminal Appeals Act 1995.
- If convicted after a Crown Court trial reasonable doubt.
and all appeals were refused, D could Where D must prove a defence, they must prove it only on the balance of probabilities
not ask the CCRC to investigate their (more likely than not)
case.
- If the CCRC decides the conviction Evidential Burden
may be unsafe, it can refer the matter D will often have an evidential burden imposed on them.
back to the appropriate appellate This means D must raise some evidence of a fact in issue (usually by the defendant
court for re-consideration. and/or someone else giving evidence in the witness box) so as to convince the court that
the matter deserves consideration.
Thereafter, the prosecution must disprove the issue beyond reasonable doubt.
The evidential burden often arises when the defendant is raising a specific defence.
Actus Reus
According to Lord Hailsham in Haughton v Smith While varying from crime to crime, the actus reus will consist of one or more of
[1975] ‘an act does not make a man guilty of a crime, the following components:
unless his mind be also guilty. (a) an act (or sometimes a failure to act) by the defendant;
(b) the existence of certain circumstances at the time of the defendant’s
Conduct crimes: to be criminally liable, D must act in a conduct;
particular way, the result itself has no impact on (c) certain consequences flowing from the defendant’s conduct.
whether a crime has been committed. State of affairs crimes: the AR will be satisfied simply by the existence of a
particular set of circumstances. D may be liable even if they had no control over
Result crimes: certain consequences must follow from the situation.
a behaviour before the actus reus is established. If the R v Larsonneur (1933) - A French citizen was deported from Ireland to England
element of causation cannot be established, the AR is against her will. She was convicted of an offence of being found illegally in the
not proved. United Kingdom despite the fact she had no choice in the matter.
OMISSIONS
There are four types of actus reus: conduct, result, circumstances, and omissions.
GENERAL RULE: a defendant cannot be criminally liable for a failure to act, as there is no general duty to act to prevent harm
(R v Smith (William)) - “Omission, without a duty, will not create an indictable offence”
Criminal Liability for Omissions
In order to secure a conviction based upon a failure to act, the prosecution must prove that:
(1) Crime is one capable of being committed by an omission.
(2) Accused was under a legal duty to act;
(3) Accused breached that duty;
(4) Breach caused the actus reus of the offence to occur; and
(5) Should the offence so require, that the accused had the required mens rea.
Legal Duty to Act
Common situations when defendant will be under a legal duty to act are by: (1) statute, (2) special relationship, (3)
voluntary assumption, (4) contract, (5) the defendant creating a dangerous situation or public office.
The penalties for ommission under a statutory provision often consist of a fine and possible endorsements on one’s
licence if it relates to a driving offence.
Failing to act when there is a duty to do so imposed by contract or by a special relationship will usually result in criminal
prosecution for the consequences of that omission.
(1) Statutory duty
Under statutes, innumerable offences can be committed by an omission.
, Parents must care for their children under the Children Act 1989.
E.g. Road Traffic Act 1988, s.6(4) – it is an offence to fail to provide a specimen of breath
(2) A special relationship
Examples of special relationships are:
Doctors and patients; Parents and their children; Spouses.
FACTS: Gibbons lived with girlfriend, Proctor, child, Nelly, and Proctor's children from previous
PARENTS relationship. Gibbons gave Proctor money for food. Girlfriend deliberately starved Nelly to death.
HELD: Court of Appeal noted Gibbons living in same house as Nelly. Said he must have been aware of
R v Gibbons and condition of daughter, who little more than a skeleton when she died. If he did not see her, then that is
Proctor (1918) evidence from which jury could have decided he did not care what happening to her and had mens rea for
murder. Gibbons convicted of daughter's murder based on breach of duty as father not to neglect her.
Both children were certain to die in the absence of a surgical procedure to separate them. The operation
Re A (Children
would save one twin, but the parents would not give their consent. The judge observed that the parents
(Conjoined
had a legal duty to the twin, who could be saved. By denying that twin the chance to live, they might be
Twins)) (2000)
guilty of killing her under the principle in Gibbons and Proctor.
(3) Voluntary assumption of a duty of care
A person not generally under a duty to care for another in distress. However, if person voluntarily assumes a duty
towards another, the law will hold that person liable if they fail to carry out that duty.
The basis on which the courts have held a voluntary assumption of a duty of care to exist is often factually specific as can
be seen by the cases that follow:
Held: Edith Proctor also convicted of Nelly’s murder, on basis that Proctor living in same household, in role
R v Gibbons and
of Gibbons’ de facto wife. She looked after ‘family’ while Gibbons went out to work, and received money
Proctor
for housekeeping and food from Gibbons.
Stone lived with mistress Dobinson. Both of low intelligence and described as ‘inadequate’. Both accepted
into their home Stone's elderly, weak and anorexic sister, Fanny. Tried to make her eat but gave up.
R v Stone and
Eventually Fanny confined to bed and Stone and Dobinson failed to get medical assistance. As result Fanny
Dobinson (1977)
died. HELD: Stone and Dobinson convicted of manslaughter, and convictions upheld, on basis that,
although neither under duty imposed by law to care for ailing relative, voluntarily assumed duty.
Victim was at R's house. They were taking drugs. V became unconscious and R tried to revive. Trial judge
directed jury that duty of care could be assumed: V was friend, V was in R's house, R attempted to revive
R v Ruffell
him. Jury told if they decided R had assumed this duty, were entitled to decide whether R had breached
(2003)
duty. Jury decided in affirmative and R convicted.
HELD: Court of Appeal followed approach taken in Stone and Dobinson and upheld conviction.
(4) Contractual
The duty can be owed by the defendant either to the party with whom the defendant is contracted or to a third party.
R v Pittwood Pittwood employed as a level-crossing gatekeeper. He failed to close gate when a train was coming and a
(1902) man was killed by train. HELD: Pittwood's failure to close gate could amount to actus reus of manslaughter
by omission, because he was under a contractual duty to do so when a train was approaching.
(5) Defendant Creates a Dangerous Situation
If person accidently started fire in house, person has duty to take reasonable steps to counteract dangerous situation created.
The steps need only be reasonable, so person would not be expected to risk their own life to save lives of others, but would
be expected to take reasonable steps, e.g. summoning help, warning any occupants of house that it’s on fire, and so on.
R v Miller Miller, squatter, fell asleep in a bed whilst holding lighted cigarette. Awoke to find mattress smouldering,
(1983) but only moved to another room and go to sleep again. House damaged by fire. HELD: Miller convicted of
arson (Criminal Damage Act 1971, s.1(1) and s.1(3)).
HOL held that if someone inadvertently sets in motion chain of events that causes risk of damage, and
that person becomes aware of what happening and can prevent further damage, his inaction or
omission to do so can become actus reus of criminal damage.
(6) Public Office Holders
R v Dytham D police constable, on duty and in uniform, who in early hours of morning saw a man who had been
(1979) evicted from a club being kicked so badly that he later died. D did not attempt to stop disturbance and
when incident ceased he drove off. HELD: guilty of wilfully neglecting to perform his duty.
Omissions and Causation
Relationship between omissions and causation in this context means that if D had acted, could have
made a causal difference.
D cannot cause by omission. D fail to uncause when D duty to uncause, but this different to causing.
E.g. V self-injects dangerous drugs into their own arm and suffers an overdose, cause of V's death is
their own act of self-injection. The drugs causing V to die. But if supplier of drug is present when V
overdoses, supplier will have a duty to try to uncause what V has caused.
,Causation
ACTUS REUS – CAUSATION
Result crime require that the defendant’s conduct cause a particular result.
Result crimes include: murder, manslaughter, criminal damage and assault occasioning actual bodily harm.
Causation is part of the actus reus of these types of offences.
RESULT CRIMES = FACTUAL CASUATION + LEGAL CAUSATION
There are two aspects to causation, both of which must be proved by the prosecution:
Factual causation: jury must be satisfied that acts or omissions of accused were cause of relevant consequences. It must
be proved that “but for” acts or omissions of accused, relevant consequence would not have occurred (R v White)
Legal causation: it must be established that the acts or omissions of accused were a legal cause of that consequence. The
defendant must be “operating and substantial” cause of prohibited consequence (R v Pagett)
In deciding issue of causation, jury must apply legal principles.
FACTUAL CAUSATION: ‘but for’ test
Factually, it must be proved that ‘but for’ acts or omission of the accused, relevant consequence would not have
occurred in the way it did (R v White)
R v White W put poison in drink to kill his mother. She was found dead. It was not clear on evidence whether she
(1910) had drunk any of liquid from glass. Medical evidence showed that she had died from heart failure, not
from poisoning. HELD: W acquitted of murder, as no causal link. He was found guilty of attempted
murder.
R v Cheshire The courts have held that the acceleration of death must be ‘significant’. The Court of Appeal confirmed
[1991] that ‘significant’ here simply meant ‘more than negligible’.
LEGAL CAUSATION: absence of an intervening act which breaks the chain of causation
The law will check the culpability of D before imposing liability and it will require that the defendant is the “ operating
and substantial” cause of the prohibited consequence (R v Pagett)
The key legal causation principles are:
D’s act must be “substantial” cause of prohibited harm (R v Hughes)
The consequence must be caused by D’s culpable act (R v Dalloway)
D’s act need not be the only cause of the prohibited consequence (R v Benge)
R v Hughes Defendant’s act must be “substantial” cause of prohibited harm. “Where there are multiple legally
(2013) effective causes, it suffices if the act or omission under consideration is a significant (or substantial) cause.
It need not be the only or the principle cause. It must, however, be a cause which is more than de
minimis, more than minimal.”
R v Dalloway D driving a horse and cart without holding reins. A child ran in front of cart, struck by wheel and killed. It
(1847) appeared on evidence that, even if D had been holding the reins, he could not have stopped the cart in
time.
HELD: If Dalloway had not been driving cart, child would not have been killed, and in that sense he
“caused” death. However, court held it was necessary to go further and show that death was due to the
culpable element in his act –negligence in not using the reins. Accordingly, D’s conduct was not to blame
for killing and he was acquitted of manslaughter.
R v Benge Benge was foreman of some railway tracklayers. He thought that next train not due for several hours and
(1865) so ordered track to be taken up. He sent a man with a red flag down track to stop any trains. However, this
signalman did not go correct distance and driver of the train was not keeping good look out. Train crashed
and several people killed – D tried for manslaughter.
HELD: If D’s negligence mainly or substantially caused accident, irrelevant that it might have been avoided
if other persons not been negligent. A defendant still be liable even when other causes were present.
Egg-shell Skull Rule
‘Egg-shell skull' rule provides that person who inflicts harm on another cannot escape liability if victim, owing to some
pre-existing infirmity, suffers greater harm than would have been expected as a result of what accused has done.
The defendant must take the victim as they find them (R v Blaue).
Blaue stabbed woman several times and pierced lung. V refused to have blood transfusion, as contrary
to religious beliefs. She was advised that without a transfusion would die. D convicted of manslaughter.
R v Blaue
Appealed against conviction, arguing victim's refusal to have blood transfusion amounted to a novus
actus interveniens. HELD: This argument rejected. D must take victims as they find them.
, Intervening Acts
LEGAL CAUSATION: INTERVENING ACTS
A novus actus interveniens is a subsequent event or act of either the victim or a third party which renders the defendant’s part
in the consequence very small, breaking the chain of causation and meaning that the defendant is not criminally liable.
Courts have been required to consider question of whether chain of causation been broken in number of different contexts
such as: (1) Medical negligence, (2) Acts of a third party, (3) Acts of a victim, (4) Natural events
(1) Medical negligence
Smith stabbed victim during fight. The victim received medical treatment that was inappropriate and
positively harmful and died a couple of hours later. HELD: Smith was convicted of murder, because it
held that his actions remained a substantial and operating cause. The medical negligence, while a
R v Smith cause, was not a sufficient cause to sever the chain of causation.
Lord Parker LCJ: “if at time of death original wound still operating and substantial cause, then death can
properly be said to be result of wound […] only if second cause is so overwhelming as to make original
wound merely part of history can it be said that death does not follow from wound.”
Cheshire shot V twice. Following surgery V developed respiratory problems and required tracheotomy
tube to be inserted. Eventually windpipe became completely blocked and died. At time of death, V’s
original wounds healed.
HELD: CoA held that poor medical treatment did not break chain of causation
R v Cheshire
Beldam LJ: “jury should not regard medical negligence as excluding responsibility of D unless it was so
independent of his acts, and in itself so potent in causing death, that they regard D’s acts as
insignificant”
Overall, courts reluctant to allow medical malpractice to break the chain of causation.
Jordan stabbed a man as the result of a disturbance. The victim died in hospital eight days later.
Additional evidence opined that the death was not caused by the wound but that the medical treatment
R v Jordan was inappropriate. The victim was intolerant to terramycin which was noticed and stopped before being
continued the following day by another doctor. They had also introduced abnormal quantities of fluid
which waterlogged the victim’s lungs. Conviction was quashed.
(2) Acts of third parties
Acts of a third party can breach the chain of causation when free, deliberate, and informed
Using pregnant girlfriend as a shield, Pagett shot at police. The police returned fire and killed girl. The
judge, directing jurors on causation, stated that they had to be sure that appellant fired first at officers
and that act caused officers to fire back, with result that girl was killed. Jury also had to be satisfied that,
in doing so, police acted reasonably, either by self-defence or in performance of their duties as police
R v Pagett
officers. The jury convicted Pagett, who appealed. HELD: CoA rejected appeal and held there may only be
a break in chain of causation if actions of third party were “free, deliberate and informed. Not held to
be case here”. Goff LJ of opinion police officers’ actions neither free nor deliberate. Instead, considered
to be reasonable act performed for purpose of self-preservation.
(3) Acts of the victim
There are three types of acts of the victim:
“Fright and flight” cases, refusing medical treatment, suicide.
'FRIGHT AND Was the victim’s act reasonably foreseeable or was it so daft and unexpected that no reasonable person
FLIGHT' could have foreseen it?
When under attack or threat of attack, it is plausible to consider that victim may attempt to escape
from attack or threat.
Issue falls around question as to whether escape foreseeable by reasonable person.
R v Roberts
Victim passenger in Roberts' car. She terrified by Roberts' unwanted sexual advances and jumped
out of moving car, suffering injuries the process.
HELD: Roberts convicted of assault occasioning ABH. CoA considered accused caused her injuries
and said that victim's reaction would only break causation if it were an act that was “so daft” that
no reasonable person could have foreseen it.
R v Williams and Davis
Appellants gave lift to hitchhiker and tried to rob hitchhiker at knifepoint. Victim jumped from moving
car and died of head injuries. HELD: Appellants convicted of manslaughter.
