Criminal Liability

1. Criminal Liability Causation

2. Lesson Objectives • I will be able to state the meaning of causation • I will be able to distinguish between factual and legal causation

3. The problem of causation • The actus reus of a crime is the defendant’s guilty act. The rules of causation are applied to decide whether the defendant's guilty act caused the required consequence in the definition of a particular crime – i.e. for murder, the defendant’s act must have caused the death of the victim • If the defendant's act does not cause the particular offence then there is no criminal liability

4. Crimes can be categorised as ‘conduct’ or ‘action’ crimes, where the act is the actus reus and the consequences are immaterial, or ‘result crimes’, where the actus reus must produce a particular consequence such as death or a particular type of harm. • In many cases causation is not an issue. Where it is less clear, the prosecution must prove both factual and legal causation.

5. Factual causation • The defendant can only be guilty if the consequences would not have happened ‘but for’ his act. • White (1910) – there was no factual cause of death because the actual cause was natural and not affected by the defendant’s act. • A different way of stating the test is to ask whether the prohibited result would have occurred if the defendant had not acted. • If the prohibited result would still have occurred, even without the defendant’s actions, then something other than the defendant’s actions caused it and the factual causation is not present. • The principle can also be seen in an unusual way in Pagett (1983) • Pagett (1983) – this is an unusual result of the ‘but for’ test, but it is quite logical

6. Legal Causation • Once it is established that there is factual causation, the prosecution must also prove legal causation. This is so that there is little chance of the conviction of a truly innocent person. • The link between the act and the consequence is known as the chain of causation, which must remain unbroken if there is to be criminal liability. • Legal causation is the ‘operating and substantial cause’ test to find the link between the defendant's act and the criminal consequence • E.g. you invite your friend over and they are stabbed on the way round. It wouldn’t have happened but for you asking them, however, it is not the operating and substantial cause of their wounds.

7. The original injury must be the operating and substantial cause. This can be illustrated by 2 cases involving medical intervention. • It should be noted that, in medical intervention cases, there is a degree of sympathy for the doctors, who will be considered to have caused the injury or death only if the treatment is seriously incorrect.

8. Jordan (1956) – the test here is whether the medical treatment was ‘palpably (obviously) wrong’ • Smith (1959) – here the original act was the operating and substantial cause of the consequence • Cheshire (1991) – in this case the actual cause of death was not seen as independent of the original act, so there was legal causation

9. Intervening acts or events • Sometimes the sole cause of the death or injury seems to be a completely independent act. • This is known as novus actus interveniens – or new act intervening. This breaks the chain of causation. • Malcherek (1981) – when the doctors switched off the life support machine of the victim, this did not break the chain of causation

10. Take your victim as you find him(think skull rule) • The general principle is that you take your victim as you find him; in other words, the law does not take into account any particular characteristics of the victim. • In Watson (1989), it did not matter that the victim was an old man; if he was therefore more likely to suffer a heart attack, then that was a risk the defendant must take. • Blaue (1975) – here the victim’s religious beliefs led to refusal of possible life-saving treatment. This is an example of the principle of take your victim as you find him

11. The victim’s own act • If the defendant causes the victim to act in a foreseeable way, then the victim’s own act will not break the chain of causation. This depends on whether the victim's conduct is reasonable or unreasonable. • Roberts (1971) – the victim’s own act was reasonable so there was causation • Williams (1992) – the victim’s own act might be unreasonable and so break the chain of causation. The victim thus caused their own injuries • It should be remembered that a victim may, in the agony of the moment, do the wrong thing.