Elements of Criminal Liability

Elements of Criminal Liability Actus Reus - Causation

Objectives • Identifythe meaning of the term causation • Describeand give examples of the meaning of factual causation • Describe and give examples of the meaning of legal causation

Starter Play Omission Showdown. Each team has a set of question cards face down on the table. I will choose a Showdown Captain Showdown Captain draws the top card, reads the question and provides thinking time. Working alone each student including the captain write down their answers on the whiteboards. When finished teammates signal they are ready Showdown Captain calls Showdown and teammates show and discuss their answers. Showdown Captain leads the checking. If correct the team celebrate with a chocolate if not then team tutor and celebrate afterwards. Person on the left of the Showdown Captain becomes the Showdown Captain for the next round.

Introduction • In murder, the defendant causes the death of the victim. • The result or consequence is the death. Therefore, some crimes are referred to as 'result' crimes. In these crimes, the offence specifies to the consequence. • Another example is assault occasioning actual bodily harm. The causing of the harm is the consequence. In order to secure a conviction the prosecutor must prove that the defendant caused the result (caused the consequence).

Prosecution burden • In most cases there will be no issue of causation to consider. The facts will make it obvious. • However, where causation has to be proved the prosecution must show that the defendant was both factually and legally culpable for the result or consequence. • Consequences • A broken arm – this is likely to be a crime as the defendant caused the injury • A broken arm – this is unlikely to be a crime even though the defendant caused the injury. • Circumstances • Unlawfully (e.g. so that they get hurt) • Lawfully (e.g. to avoid being hit by a car) The Defendant’s Act Pulling someone so that they fall over

Factual Causation • To establish causation it is necessary to firstly ask if the defendant in fact caused of the specified consequence of the offence. One way is to ask this question is: • "But for what the defendant did would the consequences have occurred?"

‘But For’ (or sine qua non) Test • Sine qua non" is Latin for "without which, not" meaning an essential condition, something that is indispensable. • In full it is "causa sine qua non" literally translated means cause without which - the event - could not have occurred. This is a basic and vital test for factual causation. • If the result would not have occurred 'but for' what the defendant did, then the prosecution has established causation in fact. Unsurprisingly, this is referred to as the 'but for' test.

R v White (1910) Case Law Causation - but for test - causal link between actions and consequences must be shown D put cyanide into his mother's lemonade drink, but she died of heart failure before the poison could kill her. The answer to the question 'But for what the defendant did would she have died?' is 'No'. She would have died anyway. Principle –He was acquitted of murder because he had not actually caused his mother's death. Guilty of attempted murder

‘But For’ • The ‘but for’ test acts as a preliminary filter that eliminates all unconnected acts or events • It then leaves a range of potential legal causes. • Consider the scenarios on the next slide – the ‘but for’ test establishes multiple factual causes of death. • Not all factual causes make a meaningful contribution to death nor do factual causes imply blameworthiness.

DIRECT CAUSE INDIRECT CAUSE Defendant stabs victim through the heart Defendant pushes victim Defendant’s act Victim falls, hits head and fractures skull Chain of Causation Chain of Causation Chain of Causation Prohibited Consequence Victim dies Victim dies

Defendant’s Act Factual Causation The ‘But For’ Test White [1910] Stage 1 Substantial Cause Cheshire [1991] Need not be sole or main cause provided it is A cause Pagett (1983) Legal Causation Stage 2 Prohibited Consequence

Facts But For Test Outcome Vikki tells her husband Neil to start walking to work as part of an economy drive. Neil walks through the park to work and encounters Dick, a beggar, who asks him for £5. Neil refuses and tells Clifford to get a job. Angered by Neil’s abuse, Dick attacks Mark, a passer-by, causing his death. • But for Vikki’s insistence that Neil walk to work, would Mark have died? • But for Neil’s abuse of Dick, would Mark have died? • But for Dick’s attack, would Mark have died? • No, Vikki’s decision was the initiating factor that started this chain of events. She is a factual cause of Mark’s death. • No, Neil’s abuse angered Dick and led him to attack Mark thus Neil is a factual cause of Mark’s death. • No, Dick’s attack leaves Mark with serious injuries from which he dies. Dick is a factual cause of Mark’s death

The ‘But For’ Test • In the last slide all three parties are a ‘but for’ cause of death but not all of them are regarded as equally to blame for Mark’s death. • Factual causes merely establish a preliminary connection between act and consequence

Legal Causation • Having established causation in fact it is also necessary to establish causation in law. • Causation in fact does not always mean there will be causation in law. • Causation in law can be established by showing that the defendant's act was an 'operative and substantial' cause of the consequence and that there was no intervening event. • Two key cases here are – Cheshire (1981) & Smith (1959)

R v Cheshire (1991) Case Law Causation - medical treatment not novus actus interveniens - sole or main cause D shot V in an argument in a chip shop, and V was taken to hospital where a tracheotomy was performed. Six weeks later, V suffered breathing problems because of the tracheotomy scar and died. The hospital had been negligent - perhaps even reckless - in not recognising the likely cause of V's problems and responding to them. Principle –This did not break the chain of causation from the shooting. D's actions need not be the sole or even the main cause of death as long as they contributed significantly to that result; medical negligence did not exclude D's liability unless it was so independent of his acts and so potent as to make his own contribution insignificant. Only in the most extraordinary and unusual case would treatment, whether right or wrong, given in good faith by a generally competent doctor, be regarded as independent of the original injury. Guilty

R v Smith (1959) Case Law Causation - must be operating and substantial – medical novus must be palpably wrong D stabbed V with a bayonet during a fight in barracks. V's friend took him to the first aid post, but on the way, he dropped V twice. At the first aid post the medical officer was busy and took some time to get to V who died about two hours after the stabbing. Had he been given proper treatment he would probably have recovered. Principle –The treatment he was given was thoroughly bad and might well have affected his chances of recovery, but medical treatment correct or not does not break the chain of causation. If at the time of death the original wound is still an operating cause and a substantial cause, then death can be said to be a result of the wound albeit that some other cause is also operating. Only when the second cause of death 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. Guilty

Substantial and Operative • Substantial - Means more than something very trivial, more than something that the law considers de minimis. Contrast a deep cut and a pin prick (both constitute wounds). • Operative - An 'operative' cause does not have to be the ‘sole or main’ cause of the specified consequence provided it is A cause – Pagett (1983) • This can be seen by comparing Cheshire above with the case of Jordan (1956) and by looking at Pagett (1983)

R v Jordan (1956) Case Law Causation - medical treatment not novus actus interveniens- unless medical treatment palpably wrong D stabbed V, and V died from bronchopneumonia in hospital about a week later when the original wound was healing well. New evidence not available at the trial indicated that the bronchopneumonia was probably caused by B's unusual reaction to terramycin (which had been given even after his allergy had been discovered) and/or by an excess dose of intravenous fluids. Principle – The medical treatment was 'palpably wrong' and would have 'precluded' a jury from holding that death was caused by D's action. Not Guilty of Murder

R vPagett (1983) Case Law Causation -multiple causes, not sole cause but significant contribution To avoid arrest, the defendant used his pregnant girlfriend as a shield and fired at armed police. The police returned fire, hitting and killing the girl. The defendant was held to be the legal cause of death despite causing no physical injury himself as he set in motion the chain of events that led to death and it was foreseeable that the police would return fire. Principle –It was held that the defendant’s act need not be the sole cause, or even the main cause of death provided it is a cause in that it ‘contributed significantly to that result’. Guilty

Intervening Acts - novus actus interveniens • Sometimes the sole cause of death or injury can seem to be a completely independent act. • This is know by the Latin novus actus interveniens or an intervening act. • Intervening acts fall into three categories: • Acts of the victim • Acts of third parties • Naturally occurring events

Victim’s Act • The general rule of causation is that the defendant is liable for the foreseeable consequences of his actions • Therefore the victim may break the chain of causation if his reaction to the defendant’s initial act is extreme and unforeseeable • Take the following cases with different outcomes

R v Roberts (1972) Case Law Causation -intervening acts, victim’s reaction, escape cases Facts - The defendant interfered with the victim’s clothing whilst she was a passenger in his car. She jumped from the moving vehicle and sustained serious injuries in the fall. The defendant denied causing these injuries but his conviction was upheld as it was foreseeable that the victim would attempt to escape and could be injured in doing so. Principle –The chain of causation will be broken only if the victim’s actions were ‘so daft’ as to be unforseeable. Guilty

R v Williams (1992) Case Law Causation -intervening acts, victim’s reaction, escape cases Facts - The victim jumped out of a moving car because he alleged that there had been an attempt to steal his wallet. Principle –Because this was held to be an unreasonable reaction under the circumstances , and disproportionate to the threat, it was held that the chain of causation had been broken by the victim’s intervening act. The defendant was not liable for the victim’s injuries. Not guilty of the injuries to victim

The ‘Thin Skull Rule’ • Roberts makes it clear that only extreme acts will break the chain of causation and relieve the defendant of liability. • This must be considered in conjunction with the ‘thin skull’ rule. • The 'thin skull' rule says that the defendant must take his victim as he finds him. Therefore, even if injury or death is not reasonably foreseeable the law still considers the defendant liable if the victim suffered from some physical or mental condition that made him or her vulnerable.

R vBlaue (1992) Case Law Causation – novus actus interveniens- death occurring from V’s own actions does not break causation – think skull rule Facts - D stabbed an 18-year-old woman V and punctured her lung. At the hospital, V was told she would need a blood transfusion to save her life, but refused this as contrary to her religious beliefs (she was a Jehovah's Witness). She died next day. Principle –It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This principle clearly applies to the mental as well as the physical characteristics of the victim, and the courts will rarely make a judgement as to whether the victim's response was reasonable. Guilty of manslaughter (diminished responsibility)

The ‘Thin Skull Rule’ • The ‘thin skull’ rule is also called the ‘egg shell skull’ rule. • It is called the 'thin skull rule' in appreciation that if you knock a person to the ground who has such a skull, the defendant should be liable. It is not the victim's fault that he was not blessed with a more substantial skull.

Acts of Third Parties • This mainly takes the form of intervention by doctors or medical staff. • We have already seen the key cases here namely Jordan (1956) D stabbed V, who died eight days later in hospital and the medical treatment was 'palpably wrong’ and Cheshire (1991) where V was shot, received bad medical treatment, but this treatment was not 'papablywrong.’ • Think also about the case of Smith (soldier) above • One final case here are the two joint appeals of Malcherek and Steel (1981)

R vMalcherek and Steel (1981) Case Law Causation – medical treatment not novus actus Facts - D stabbed his wife who was taken to hospital and put on a life support machine. She suffered two heart failures and after ten days had irretrievable brain damage. The doctors switched off the machine. Principle –The doctors' decision did not break the chain of causation; D's act could be regarded as the cause of V's death. Guilty

Objectives • Identifythe meaning of the term causation • Describeand give examples of the meaning of factual causation • Describe and give examples of the meaning of legal causation

Elements of Criminal Liability