Criminal Law
Actus Reus: Causation
Basic Reading:
Herring Chapter 2 and an additional chapter on Actus Reus from another textbook.
Further Reading:
D. Baker, ‘Omissions liability for homicide offences: reconciling R. v Kennedy with R. v Evans’
(2010) 74(4) Journal of Criminal Law 310.
C. Elliot and C. De Than, ‘Prosecuting the Drug Dealer When a Drug User Dies: R v Kennedy
(No2)’ (2006) 69 Modern Law Review 986
J. D. Elvin, ‘‘Causation and Legal Responsibility: 'Take Your Victim as You Find Him?' (2017) 1
Journal of the Institute of Law 45
H. Hart and A. Honoré, Causation in Law (2nd edition, OUP,1985)
M. S. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (Oxford:
OUP, 2009).
A.Norrie, ‘A Critique of Criminal Causation’ (1991) 54 Modern Law Review 685
N. Padfield, ‘Clean Water and Muddy Causation: Is causation a Question of Law, or Just a Way
of Allocating Blame?’ [1995] Criminal Law Review 683
J. Stannard, ‘Criminal Causation and the Careless Doctor’, (1992) 55 Modern Law Review 577
J. Stannard, ‘Medical treatment and the Chain of Causation’ (1993) 57 Journal of Criminal Law
88
G. Williams, ‘Finis for Novus Actus?’, (1989) 48 Cambridge Law Journal 391
J. Williams, ‘Victim Refusal’ 35 (1984) Northern Ireland Legal Quarterly 386
To Consider
D stabbed V in her arm. The ambulance bringing V to the hospital was significantly
delayed by a heavy rainstorm which had caused the banks of a river to burst, flooding the
roads. By the time V arrived at the hospital she had lost a lot of blood. The doctor
treating V failed to realise how deep the cut to V’s arm was and simply applied a bandage
without stitching her arm first. V’s arm continued to bleed. On her way home she fainted
and fell in front of a car. She was killed instantly. A post-mortem reveals that V suffered
from haemophilia, a condition in which the blood takes a long time to clot and which can
lead to excessive bleeding even from minor injuries. It also shows that her wound would
have required only 4 or 5 stitches and that she did not have any food in her stomach. It
turns out that V’s sister had eaten the last of the cereal that morning, and so V had to
skip breakfast.
What or who is the cause of V’s death?
1
, For most crimes it is necessary to establish a causal link between the act and the result – for
example that D’s act of stabbing V caused death.
The issue of causation is ultimately a matter for the jury - R v L [2010] EWCA Crim 1249 (CA)
NB - Criminal liability does not necessarily follow from a finding that causation is established,
it will also have to be shown that D possessed the required mens rea (unless it is a strict
liability offence) and has no defence.
Establishing Causation
In order to establish causation it is necessary to prove that:
1. The defendant’s conduct was the factual cause of the prohibited consequence; and
2. The defendant’s conduct in law caused the consequence
Factual causation
The D’s actions must be the sine qua non or but for cause of the prohibited result – R v
White [1910] 2 KB 124 (CA)
It must be established that the consequence would not have occurred as and when it did but
for the accused’s conduct – R v Dyson [1908] 2 KB 959 (CA)
The Supreme Court has made clear that ‘but for’ causation is not sufficient in and of itself R
v Hughes [2013] UKSC 56 [2013] 1 W.L.R. 2461:
The law has frequently to confront the distinction between “cause” in the sense of a sine
qua non without which the consequence would not have occurred, and “cause” in the sense
of something which was a legally effective cause of that consequence. The former, which is
often conveniently referred to as a “but for” event, is not necessarily enough to be a legally
effective cause. If it were, the woman who asked her neighbour to go to the station in his
car to collect her husband would be held to have caused her husband's death if he perished
in a fatal road accident on the way home. In the case law there is a well-recognised
distinction between conduct which sets the stage for an occurrence and conduct which on a
common sense view is regarded as instrumental in bringing about the occurrence.
2
Actus Reus: Causation
Basic Reading:
Herring Chapter 2 and an additional chapter on Actus Reus from another textbook.
Further Reading:
D. Baker, ‘Omissions liability for homicide offences: reconciling R. v Kennedy with R. v Evans’
(2010) 74(4) Journal of Criminal Law 310.
C. Elliot and C. De Than, ‘Prosecuting the Drug Dealer When a Drug User Dies: R v Kennedy
(No2)’ (2006) 69 Modern Law Review 986
J. D. Elvin, ‘‘Causation and Legal Responsibility: 'Take Your Victim as You Find Him?' (2017) 1
Journal of the Institute of Law 45
H. Hart and A. Honoré, Causation in Law (2nd edition, OUP,1985)
M. S. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (Oxford:
OUP, 2009).
A.Norrie, ‘A Critique of Criminal Causation’ (1991) 54 Modern Law Review 685
N. Padfield, ‘Clean Water and Muddy Causation: Is causation a Question of Law, or Just a Way
of Allocating Blame?’ [1995] Criminal Law Review 683
J. Stannard, ‘Criminal Causation and the Careless Doctor’, (1992) 55 Modern Law Review 577
J. Stannard, ‘Medical treatment and the Chain of Causation’ (1993) 57 Journal of Criminal Law
88
G. Williams, ‘Finis for Novus Actus?’, (1989) 48 Cambridge Law Journal 391
J. Williams, ‘Victim Refusal’ 35 (1984) Northern Ireland Legal Quarterly 386
To Consider
D stabbed V in her arm. The ambulance bringing V to the hospital was significantly
delayed by a heavy rainstorm which had caused the banks of a river to burst, flooding the
roads. By the time V arrived at the hospital she had lost a lot of blood. The doctor
treating V failed to realise how deep the cut to V’s arm was and simply applied a bandage
without stitching her arm first. V’s arm continued to bleed. On her way home she fainted
and fell in front of a car. She was killed instantly. A post-mortem reveals that V suffered
from haemophilia, a condition in which the blood takes a long time to clot and which can
lead to excessive bleeding even from minor injuries. It also shows that her wound would
have required only 4 or 5 stitches and that she did not have any food in her stomach. It
turns out that V’s sister had eaten the last of the cereal that morning, and so V had to
skip breakfast.
What or who is the cause of V’s death?
1
, For most crimes it is necessary to establish a causal link between the act and the result – for
example that D’s act of stabbing V caused death.
The issue of causation is ultimately a matter for the jury - R v L [2010] EWCA Crim 1249 (CA)
NB - Criminal liability does not necessarily follow from a finding that causation is established,
it will also have to be shown that D possessed the required mens rea (unless it is a strict
liability offence) and has no defence.
Establishing Causation
In order to establish causation it is necessary to prove that:
1. The defendant’s conduct was the factual cause of the prohibited consequence; and
2. The defendant’s conduct in law caused the consequence
Factual causation
The D’s actions must be the sine qua non or but for cause of the prohibited result – R v
White [1910] 2 KB 124 (CA)
It must be established that the consequence would not have occurred as and when it did but
for the accused’s conduct – R v Dyson [1908] 2 KB 959 (CA)
The Supreme Court has made clear that ‘but for’ causation is not sufficient in and of itself R
v Hughes [2013] UKSC 56 [2013] 1 W.L.R. 2461:
The law has frequently to confront the distinction between “cause” in the sense of a sine
qua non without which the consequence would not have occurred, and “cause” in the sense
of something which was a legally effective cause of that consequence. The former, which is
often conveniently referred to as a “but for” event, is not necessarily enough to be a legally
effective cause. If it were, the woman who asked her neighbour to go to the station in his
car to collect her husband would be held to have caused her husband's death if he perished
in a fatal road accident on the way home. In the case law there is a well-recognised
distinction between conduct which sets the stage for an occurrence and conduct which on a
common sense view is regarded as instrumental in bringing about the occurrence.
2
