3 - Causation

Actus Reus - Causation Elements of Criminal Liability
The Law Bank

Elements of Criminal Liability
Actus Reus - Causation
1
The Law Bank
Objectives
Identify the meaning of the term causation

Describe and give examples of the meaning of
factual causation

legal causation
2
The Law Bank
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.

Person on the left of the Showdown Captain becomes the Showdown Captain for the next
round.

3
The Law Bank
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).
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The Law Bank
The causation dilemma
So you have done an act (or failed to do
an act)

But V does something to make the harm
worse

Or a third party does something to make
the harm worse

Or the medical staff make a mistake
which makes the harm worse

Are YOU still liable?
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The Law Bank
In reality an example
Connor pushes Rhys off the
Empire State Building. Unknown
to him, Tehmoor is firing his gun
out of the window of a room on
the 43
rd
floor. As Rhys falls past
Tehmoors window one of the
bullets hits him, killing him
instantly. Dave hits the floor.

Who is legally responsible for
his death?
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The Law Bank
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.

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The Defendants Act
Pulling someone so
that they fall over

Circumstances
Unlawfully (e.g. so
that they get hurt)
Lawfully (e.g. to avoid
being hit by a car)

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.

The Law Bank
8
Defendants
act
Prohibited
Consequence
Chain of
Causation
DIRECT
CAUSE
Defendant
stabs victim
through the
heart
Victim dies
Chain of
Causation
INDIRECT
CAUSE
Defendant
pushes victim
Victim dies
Chain of
Causation
Victim falls,
hits head and
fractures skull
The Law Bank
9
Defendants Act
Factual
Causation
Stage 1
The But For Test
White [1910]
Substantial Cause
Cheshire [1991],
Jordan (1956) &
Smith (1959)

Need not be sole
or main cause
provided it is A
cause
Pagett (1983)
Legal
Causation
Stage 2
Prohibited
Consequence
The Law Bank

R v White (1910)

But for

What is causation?
This is the last legal step that is taken to establish Ds
legal responsibility for the result.

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Factual Causation

R v Smith (1959)

Operating &
Substantial

Legal Causation
+
The Law Bank
Test yourself
11
Use your understanding so far to
decide if James and Paige are liable
for the deaths in the scenarios below:
Tom has been stabbed forty
times. James comes along and
pricks the end of his finger with
a drawing pin. Tom dies
Paige pulls a knife on Sidney
who runs down the pavement
and hits Rosie. Rosie falls into
the road and is hit by a car and
dies.
But what if .
What if Tom had been stabbed by
forty people, each inflicting one
wound? How would causation
affect their liability?
What if the car that hit Rosie was
speeding down a one way street
the wrong way?
The Law Bank
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?"
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The Law Bank
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.

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The Law Bank
14
R v White [1910] 2 KB 124
The defendant put some poison in his mother's milk with the intention of killing
her. The mother took a few sips and went to sleep and never woke up. Medical
reports revealed that she died from a heart attack and not the poison. The
defendant was not liable for her murder as his act of poisoning the milk was not the
cause of death. He was liable for attempt.

Principle This case established the 'but for' test. i.e would the result have
occurred but for the actions of the defendant? If the answer is yes the defendant is
not liable.
The Law Bank
But For
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The but for
test acts as a
preliminary filter
that eliminates
all unconnected
acts or events
Whats left is 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.
The Law Bank
16
Sandra tells her husband
Tony to start walking to
work as part of an
economy drive.

Tony walks through the
park to work and
encounters Dick, a beggar,
who asks him for 5. Tony
refuses and tells Dick to
get a job.

Angered by Tonys abuse,
Dick attacks Mark, a
passer-by, causing his
death.

Facts
But for Sandras
insistence that Tony walk
to work, would Mark have
died?

But for Tonys abuse of
Dick, would Mark have
died?

But for Dicks attack,
would Mark have died?

No, Sandras decision was
the initiating factor that
started this chain of
events. She is a factual
cause of Marks death.

No, Tonys abuse angered
Dick and led him to attack
Mark thus Tony is a factual
cause of Marks death.

No, Dicks attack leaves
Mark with serious injuries
from which he dies. Dick
is a factual cause of
Marks death

But For
Test
Outcome
The Law Bank
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 Marks death.
Factual causes merely establish a preliminary
connection between act and consequence
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The Law Bank
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
Jordan(1956) & Smith (1959)
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The Law Bank
19
R v Jordan (1956) 40 Cr App E 152
The defendant stabbed the victim. The victim was taken to hospital where he was
given antibiotics after showing an allergic reaction to them. He was also given
excessive amounts of intravenous liquids. He died of pneumonia 8 days after
admission to hospital. At the time of death his wounds were starting to heal.

Principle The victim died of the medical treatment and not the stab wound. As
the medical treatment was 'palpably wrong' and would have 'precluded' a jury from
holding that death was caused by D's action the defendant was not liable for his
death.
The Law Bank
20
R v Smith [1959] 2 QB 35
The defendant, a soldier, got in a fight at an army barracks and stabbed another
soldier. The injured soldier was taken to the medics but was dropped twice on
route. Once there the treatment given was described as palpably wrong. They
failed to diagnose that his lung had been punctured. The soldier died. The
defendant was convicted of murder and appealed contending that if the victim had
received the correct medical treatment he would not have died.

Principle The stab wound was an operating cause of death and therefore the
conviction was upheld.
The Law Bank
Substantial and Operative
Substantial - Means more than
something very trivial, more than
something that the law considers
de minimis.
Operative - An 'operative' cause
does not have to be the sole or
main cause of the specified
consequence provided it is A
cause Benge (1865)
This can be seen by comparing
Jordan above with the case of
Cheshire (1991) and by looking at
Pagett (1983)

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The Law Bank
22
R v Cheshire [1991] 1 WLR 844
The defendant shot a man in the stomach and thigh. The man was taken to hospital
where he was operated on and developed breathing difficulties. The hospital gave
him a tracheotomy (a tube inserted into the windpipe connected to a ventilator).
Several weeks later his wounds were healing and no longer life threatening,
however, he continued to have breathing difficulty and died from complications
arising from the tracheotomy. The defendant was convicted of murder and
appealed.
Principle His conviction was upheld despite the fact that the wounds were not
the operative cause of death. Intervening medical treatment could only be
regarded as excluding the responsibility of the defendant if it was so independent
of the defendant's act and so potent in causing the death, that the jury regard the
defendant's acts as insignificant. Since the defendant had shot the victim this could
not be regarded as insignificant.
The Law Bank
23
R v Pagett (1983) 76 Cr App R 279
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 Conviction upheld. The firing at the police officers caused them to fire
back. In firing back the police officers were acting in self -defence. His using the girl
as a shield caused her death.
The Law Bank
What else can affect the chain of causation?
24
D shouted abuse kicked the door and was
forcing himself in the door of Vs room on the
third floor of a youth hostel. V jumped out the
window to the ground seriously injuring herself.
D wanted to have sex with V who refused so he
stabbed her. She went to hospital but refused a
blood transfusion as it went against her beliefs.
She died.
DD picked up V a hitchhiker DD joked about
robbing V. V jumped out of the car and fell off a
cliff dying.
D stabbed V during a fight in an army barracks.
The paramedics dropped V twice and whilst
resuscitating him managed to reduce his
chances of survival by over 70%. V died.
D and X attacked V on a beach knocking him
unconscious. D went to withdraw money from
Vs account. When he returned V was 100m
away, floating in the water having suffered
other serious injuries and dead.
V was stabbed by D and then taken to hospital.
He was given an antibiotic that he was allergic
to. He was given a second lot and then an
overdose of IV liquids and died 8 days later.
D was on the run from the police and used his
pregnant girlfriend as a human shield. He shot
at the police and they shot back killing the
girlfriend.
D assaulted V and injured one of his fingers. V
was advised to have the finger amputated but
refused and subsequently died.
The Law Bank
Lets take another look
Connor pushes Rhys off the Empire
State Building. Unknown to him,
Tehmoor is firing his gun out of the
window of a room on the 43
rd
floor. As
Rhys falls past Tehmoors window one
of the bullets hits him, killing him
instantly. Dave hits the floor.

Who is legally responsible for his
death?

Prepare a brief to this scenario and reason using at
least one case in your discussion
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The Law Bank
So now try this one
D had lost his daughter and blamed his mother
for having killed her. His mother did not deny her
responsibility and promised to commit suicide.

Eight days later she still had not done it. The
man then came into her hut with a stick and
some rope. He tied the rope to a rafter, made a
noose at the other end, and urged his mother to
"Get up and hang yourself." The woman asked
for something to stand on. The man put a block
of wood under the rope.

He then left the hut and watched his mother get
upon the block of wood, put the noose around
her neck, and kick the block away.

Did the man cause the death of his mother?
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The Law Bank
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 break the chain of causation
Intervening acts fall into three categories:
Acts of the victim
Acts of third parties
Naturally occurring events

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The Law Bank
Victims own 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
defendants initial act is extreme and
unforeseeable

V tries to escape and is injured in the
attempt is D liable for the harm?

Take the following cases with different
outcomes

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The Law Bank
29
R v Roberts [1971] EWCA Crim 4 Court of Appeal
A young woman aged 21 accepted a lift from the defendant at a party to take her to another
party. She had not met the man before and it was 3.00 am. The defendant drove in a different
direction to where he told her he was taking her and then stopped in a remote place and
started making sexual advances towards her. She refused his advances and he drove off at
speed. He then started making further advances whilst driving and she jumped out of the
moving car to escape him. She suffered from concussion and cuts and bruises. The defendant
was convicted of actual bodily harm under s.47 of the Offences Against the Person Act 1861.
He appealed contending that he did not intend or foresee a risk of her suffering actual bodily
harm from his actions and that he did not foresee the possibility of her jumping out of the car
and therefore her actions amounted to a novus actus interveniens.

Principle The chain of causation will be broken only if the victims actions were so daft as
to be unforseeable.
The Law Bank
30
R v Williams & Davis [1992] Crim LR 198 Court of Appeal
The defendants picked up a hitchhiker on the way to Glastonbury festival. The hitchhiker jumped out of the
car when it was travelling at 30 mph, hit his head and died. The prosecution alleged that the defendants
were in the course of robbing him when he jumped out and thus their actions amounted to constructive
manslaughter. The trial judge directed the jury: ... what he was frightened of was robbery, that this was
going to be taken from him by force, and the measure of the force can be taken from his reaction to it. The
prosecution suggest that if he is prepared to get out of a moving car, then it was a very serious threat
involving him in the risk of, as he saw it, serious injury. The jury convicted and the defendant appealed

Principle Conviction was quashed as there was an almost total lack of evidence as to the nature of the
threat. The prosecution invited the jury to infer the gravity of the threat from the action of the deceased.
On the issue of novus actus interveniens Stuart Smith LJ stated: "The nature of the threat is of importance
in considering both the foreseeability of harm to the victim from the threat and the question whether the
deceaseds conduct was proportionate to the threat, that is to say that it was within the ambit of
reasonableness and not so daft as to make it his own voluntary act which amounted to a novus actus
interveniens and consequently broke the chain of causation. It should of course be borne in mind that a
victim may in the agony of the moment do the wrong thing."

The Law Bank
31
R v Marjoram [1999] Court of Appeal
D, a youth inflicted grievous bodily harm by forcing his way into 16 year old Jennifer
Bluett's room on the third floor room in a hostel, causing her - in fear - to jump or
fall (47 feet) to the ground through the window, receiving life-threatening injuries.

Principle D was guilty if such an outcome was foreseeable by a reasonable
person in D's position (whether or not D had actually foreseen it). The reasonable
man did not have to be the same sex and age as the defendant (although in this
case he was the same age) At the time of writing (2004) Ms Bluett is still in a
wheelchair, and has a 3 year-old daughter Isabella. Her civil action for damages
have so far failed.
The Law Bank
Unreasonable actions of a third party
What if D causes V some harm but someone else
does something to harm V. Is D liable for the
harm?

32
The act of a third party will generally break the chain of
causation unless the action was foreseeable:
See Pagett above
The Law Bank
Unreasonable actions of a third party
This includes where D causes V some harm but
medical treatment makes the harm worse or even
kills him.

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R v J ordan (1956)
Doctors did break chain
Treatment Palpably wrong
R v Smith (1959)
Ds actions still
operative and substantial
R v Cheshire (1991)
Ds actions not independent of
original act and likely to be
clear law from now on
The Law Bank
R v Cheshire (1991)
34

1. Did Cheshire succeed in his appeal?

2. Outline the courts decision.

3. Were the doctors to blame?

4. Were the wounds the substantial and operative
cause of death?

5. Why would the courts prefer to blame Cheshire
instead of the doctors?

6. Why is Cheshire significantly different than
Jordan?

The Law Bank
Acts of Third Parties
One final case here are the two joint appeals of
Malcherek and Steel (1981)

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The Law Bank
36
Malcherek & Steel, R v [1981] CA
Two separate appeals were heard together. In Malcherek the defendant had
stabbed his wife. In Steel the defendant was accused of sexually assaulting and
beating a woman over the head with a stone. In both cases the victims had been
taken to hospital and placed on life support machines. The doctors in the respective
cases later switched off the life support machines as both victims were not showing
any activity in their brain stem. The defendants sought to argue that the doctors'
actions constituted a novus actus interveniens which broke the chain of causation.

Principle Convictions upheld

The test of death is where the brain stem has died. Thus at the time of switching off
the machine, the victims were already dead. The doctors could not therefore be the
cause of death.
The Law Bank
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.

37
R v Hayward (1908) R v Holland (1841)
R v Blaue (1975)
The Law Bank
38
R v Hayward (1908) 21 Cox 692
The defendant chased his wife out of the house shouting threats at her. She
collapsed and died. He did not physically touch her. She was suffering from a rare
thyroid condition which could lead to death where physical exertion was
accompanied by fright and panic. Both the defendant and his wife were unaware
she had this condition.

Principle The defendant was liable for constructive manslaughter as his
unlawful act (assault) caused death. The egg shell (thin) skull rule applied. He was
therefore fully liable despite the fact an ordinary person of reasonable fortitude
would not have died in such circumstances.

This is true even where the Defendant has no idea of the condition
The Law Bank
39
R v Holland (1841) 2 Mood. & R 351
The defendant was involved in a fight in which he inflicted a deep cut on the
victim's finger. The victim failed to take care of the wound or get medical assistance
and the wound became infected. Eventually gangrene set in and the victim was
advised to have his arm amputated. The victim refused and died.

Principle The defendant was liable for his death despite the victim's actions in
contributing to his own death.
The Law Bank
40
R v Blaue [1975] 1 WLR 1411 Court of Appeal
The defendant stabbed an 18 year old girl four times when she refused to have
sexual intercourse with him. She was a practising Jehovah's witness and refused to
have a blood transfusion which would have saved her life. The defendant was
convicted of manslaughter on the grounds of diminished responsibility and
appealed arguing that the girl's refusal to accept the blood transfusion was a novus
actus interveniens breaking the chain of causation, alternatively that Holland was
no longer good law.

Principle The defendant's conviction was upheld. The wound was still an
operative cause of death (following R v Smith & R v Jordan) so no novus actus
interveniens and Holland was still good law.
The Law Bank
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.

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The Law Bank
Objectives
Identify the meaning of the term causation

factual causation

legal causation
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True or False
1. Causation helps to prove that the
actions or omissions done by D
resulted in the harm to V
2. It is only the person who inflicts the final
blow who can ever be charged with
murder
3. White was not guilty of murder as there
was no evidence that his poison
contributed to his mothers death
4. There are two types of causation real
and legal causation
5. Something that breaks the chain is
known as a brand new act

43
The Law Bank
Starter Facts, links and odd one out
44

3 - Causation

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Actus Reus - Causation Elements of Criminal Liability

The Law Bank

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