1. Causation Essay Exemplar <br />The rules and principles of causation not only provide fair practical solutions to the problems of criminal liability but also are founded on sound moral principles. <br />Discuss this statement using references to decided cases to illustrate your answer. [50 marks] <br />Actus reus is the physical element of a crime where it must be proven that the defendant has acted in a way, omitted to act or found themselves in a state of affairs which is deemed unlawful. In establishing actus reus in result crimes (where a consequence of the D’s actions must be proven) the prosecution must show that the D’s conduct was the factual and legal cause of that consequence and that there was no intervening act (Novus Actus Interveniens) that has broken the chain of causation. All three stages of the establishment of causation cannot be proven, it has not been proved that D caused the consequence and therefore D cannot be held liable. <br />Factual Causation <br />Factual causation demands application of the ‘sin qua non’ or ‘but for’ question. The defendant can only be found guilty if the consequence would not have happened ‘but for’ their conduct. The case of Pagett is illustrative of this. Here the D took his pregnant girlfriend from her home by force and then held her hostage. When the police called upon him to surrender her, he used her as a human shield and fired shots at the police. When the police returned fire the girl was killed. The court held that ‘but for’ Pagett’s actions, she would not have died and therefore he was guilty of unlawful and dangerous act manslaughter. This rule would appear to provide a practical solution to a situation where it was the police officers bullet that killed the victim, but only as a result of being forced into action by the defendant’s actions. Not only is it practical, it is based upon sound moral principles. It would be immoral to find the police officer liable in this context and to let Pagett escape liability. On the other hand it would be unfair to allocate blame if there is no connection between the defendant and the offence and the law takes account of this using the ‘but for test’. <br />A contrasting case were factual causation was not established in the case of White. In this case the defendant put cyanide into his mothers drink with the direct intention to kill her. Before she could drink from the glass the mother died of an unrelated heart attack. Applying the ‘but for’ test it was found that D was not the factual cause of his mothers’ death and therefore not liable for her murder, but of her attempted murder. Although the law did not allow the defendant to escape ALL liability, it could not be established that he factually caused the death. <br />LEGAL CAUSATION <br />This is closely associated with moral responsibility. The question is whether the result can fairly be said to be the fault of D. In Marchant and Muntz D1 gave instructions to D2 to drive an agricultural vehicle with a grab attached (consiting of nine spikes) on a public road. V, a motorcyclist approached at high speed colliding with the vehicle which was stopped waiting to make a turn and was impaled. The D’s were convicted of dangerous driving and evidence indicated that a guard could have covered the spikes. However the court of appeal held that a guard would not have prevented the collision and the collision at speed would have resulted in catastrophic injuries guard or not. It was therefore unfair to say that the D’s had caused V’s death. <br />As in Pagett discussed above, there may be more than one act contributing to the consequence, and not all acts may have been the defendants. In this case the rule is that the defendant can be guilty if his conduct was more than a minimal cause of the consequence. This is referred to as the de minimis principle and in the case of Kimsey it was stated that it would be acceptable to tell the jury that there must be ‘more than a slight or trifling link’. Their acts need not be a substantial cause as long as it is operating and significant. (Cheshire). <br />The acceleration principle states that D’s acts will be considered a cause if it has accelerated V’s death. It is no defence to say that V was dying of a fatal disease anyway. (Adams). <br />CHAIN OF CAUSATION <br />The chain of causation refers to the direct link between the defendant’s conduct and the consequences. If an intervening act occurs after the defendant’s act or omission that is sufficiently separate from the defendant’s conduct, it may break the chain of causation. It would of course be unfair and immoral to hold a defendant liable for death when s/he only caused minor injuries to the victim. An example illustrative of this would be of a defendant who broke the nose of V who then died as a result of fatal head injuries caused by a car crash on the way to hospital. Yes, the V would not have been in a car going to hospital ‘but for’ the D’s actions, however the intervening act was major and sufficiently separate. This seems both a fair and moral principle. A closer look at case examples may however highlight some unfairness stemming from the rules surrounding the chain of causation. <br />The chain of causation can be broken in several ways: by the actions of third parties (like the police in Pagett above); by medical negligence and by the victims own actions. <br />THIRD PARTY ACTIONS <br />In the case of Pagett, the actions of the police did not break the chain of causation as they were deemed to be reasonably foreseeable in the circumstances. This may be so but is it fair if the defendant did not himself foresee these actions. Surely holding his pregnant girlfriend in front of him was indicative of Pagett’s belief that the police would NOT return fire. <br />MEDICAL NEGLIGENCE <br />The leading authority in the area of medical negligence in the context of the chain of causation and intervening acts is that of Cheshire. In this case D shot V in the thigh and stomach and V received major surgery. V developed serious breathing difficulties and was given a tracheotomy. Rare complications left by the tracheotomy resulted in the death of V two months after the shooting and the complications were not diagnosed by the doctors. The original wounds had virtually healed by this time and were not longer life threatening. Despite this, the Court of Appeal held that the prosecution only had to prove that D’s acts contributed to the death, they need not be the sole cause or even the main cause, provided they contributed significantly. D was held to be liable for V’s death. It was also stated in Cheshire that medical treatment would not break the chain of causation unless it was so independent of his acts, and in itself so potent in causing death, that the contribution of D is made insignificant. <br />A similar test was applied in Smith where it was held that if D’s actions were still an operating and substantial cause of death they could be held liable. This was despite medical negligence reducing the chances of recovery of V by 75%. It can be seen that the test in Cheshire of significant rather than substantial widens the ambit of D’s liability even further. The fairness of this principle is questionable. The policy stance adopted by the court seems to uphold the rights of the medical profession to undertake their duties without fear of prosecution. It is arguably fair and morally correct that D is held responsible for the death of a V that they put in hospital anyway. The medical profession who step in to save V should not be held responsible morally. However, it could be argued that the rule is one of mere practicality; that it is easier to hold D liable and place blame there than admit the negligence of a member of a profession that the public needs to trust and to rely upon. <br />In the case of Jordan medical treatment deemed ‘palpably wrong’ did break the chain of causation. It seems that the negligent administration of a drug which the V was allergic to was sufficiently independent from D’s actions. It must be noted however that such administration in an emergency situation where the doctors are unaware of an allergy would not break the chain of causation. It is also worth noting that the case of Jordan is rarely followed by the Courts and that the case of Cheshire is the leading authority. <br />It has also been established in the case of Malcherek and Steel that the switching off of life support by a doctor when it has been established that V is brain dead does not break the chain of causation. This decision is certainly based upon sound moral principles. It would be grossly unfair for D to escape liability where he has caused the V so much harm that they are on life support machine. The doctors are not ending a life, they are merely taking support away that is keeping a brain stem dead patient breathing.<br />ACTIONS OF THE VICTIM <br />D may even be held liable where the victim refuses medical treatment or makes their wounds worse through self neglect. <br />The ‘thin skull rule’ dictates that the defendant should ‘take his victim as he finds him’, therefore where the victim has something unusual about their physical or mental state which makes their injury more serious, the defendant will be liable for the more serious injury. If the victim has an unusually thin skull which means that a blow to the head would cause more injury to them than any other victim, D must take his victim as he found him, despite being unaware, and is liable for the more serious injury. <br />A case illustrating this area of the law of causation is that of Blaue. Here the V was stabbed by D after refusing to engage in sexual activity with him. She later refused medical treatment (a blood transfusion) on the grounds that she was a Jehova’s Witness (her religious beliefs). She died and it was held that D should take her as he found her and he was liable for her death. It can be argued that D should only have been charged with wounding with intent (s.18 of the Offences against the person Act) not her death. This offence carries a maximum sentence of life and so a suitable punishment could have been imposed whilst recognising the V’s actions as contributory to her own death.<br />Similarly in the case of Holland, D deliberately cut the finger of V. The finger became infected and V was advised that it should be amputated. He refused until it was too late and he died from the amputation. In 1841 when the case was decided the surgery was very primitive and the decision may have been justified, but should it be today? Surely D is liable for causing actual bodily harm, but not death. <br />In the case of Dear where V made their own wounds significantly worse by not having them attended to and in fact opening the wound further, D was still held to be liable as the wound inflicted by him was still an operating and significant cause. This decision seems unjust as V effectively decided to commit suicide. However it could be argued that D had intended to cause death or serious injury by slashing V and severing an artery and so should therefore be found liable. <br />If a victim acts in a totally unforeseeable and disproportionate way in reaction to the D’s actions then they may break the chain of causation. If however V acts were ‘within the ambit of reasonableness and not so daft as to make his own act a new and voluntary one’ then their acts would not break the chain of causation. (Williams). <br />In the case of Roberts, V jumped out of a car travelling between 20-40 miles per hour to avoid the sexual advances of the D. These actions were held to be reasonable and proportionate to the threat and the D was held liable for her injuries sustained as a result. <br />Similarly in Marjoram the D’s were found guilty of inflicting serious harm on a V who was forced to ‘jump’ out of a window as a result of their abuse and threats of violence. His means of escape was both reasonable and proportionate. These scenarios are referred to ‘fright or flight’ scenarios. It is arguably unfair to allow the jury to decide what is reasonably foreseeable in these circumstances. What is reasonably foreseeable and proportionate to a jury member in a court room may not be to D or V at the actual time. <br />To conclude and referring back to the discussion point at hand it would seem that the rules and principles of causation do, in most cases, provide a practical solution to problems of criminal liability. Whether they are morally sound is questionable in relation to placing blame on a defendant where a victim effectively commits suicide in the refusal of treatment or via self neglect, or where the medical profession act in a grossly negligent manner. It could be argued that the decisions of the cases discussed are based on public policy rather than morals. Conversely the principles make it very difficult for a defendant who has intended to cause a victim some harm to escape liability. This is almost certainly a positive outcome and results in those people who pose a threat to a civilised society being reprimanded, in the main, in an appropriate manner. <br />