The doctrine of causation as we understand it is applied by the courts to determine the existence of a link or causal chain between the defendant’s conduct and a particular result prohibited by law. For instance, the question of whether the accused’s conduct of inflicting serious stab wounds on his victim caused the death of his victim is addressed by the courts, relying on not just legal principles but also moral assessments as to whether such a defendant is to be considered the factual and legal cause of the harm suffered by the victim.
As Simester asserts: Principles of causation ‘articulate the paradigm route by which ascriptive responsibility for those occurrences can be attributed to D.’ (Simester 2017, p.416).
How is causal responsibility for criminal liability assessed and justified by the courts? As we shall see, the courts in drawing from moral and ethical considerations when determining criminal responsibility are disinclined to merely rely on a non-normative, ‘mechanical’ approach to the application of legal principles.
As Simester observes, academics today tend to apply ‘a two – step inquiry ’ beginning with a ‘non-normative’ or factual test for causation which sets the preliminary stage for inquiring whether the particular harm suffered by the victim would not have occurred ‘but for’ the defendant’s conduct.
The second line of analysis is ‘normatively sensitive, in that it is informed by morally salient considerations, including novus actus doctrines.’ ( Simester 2017, p418).
As Wilson argues, ‘abandoning the causing of harm as a focus for criminal responsibility , would, however, ignore a major retributive concern.’ (Wilson, p.102).
It is arguable that retributive forms of justice dispensed by the courts for harm caused to society are guided not only by the need to vindicate the rights of victims of crime but to do so in a way that is morally and legally justifiable. Thus a paradigmatic approach that incorporates the novus actus doctrine is applied to consider whether variables such as medical negligence, victim’s refusal to accept life saving medical treatment and foreseebility of harm suffered by the victim act to break the causal link.
Michael Moore argues that ‘justice is achieved only if the morally responsible are held liable to punishment’ and ‘if moral responsibility depends in part on causal responsibility then ‘cause’ in law must mean what it means in morality.’ ( Moore, p.5) Thus, we note that the causal framework provides the instrument in criminal law by which one ascertains the moral and therefore the legal responsibility of individuals for harm caused to another.
As Wilson notes, ‘having a causal requirement allows to put on record how the victim was wronged , and reflect the extent of the harm done in punishment’ ( Wilson, p. 102). It is arguable that the calibration of justice in contemporary criminal justice systems reflect the doctrine of proportionality underpinning the just deserts theory on punishment: the idea that the punishment should fit the crime.
Principles of Legal Causation
The archetypal case of R v Smith 1959 is illustrative of a finding of causation which is non- normative in that ‘It rests on a finding about the physical facts of the matter.’ ( Simester, p. 419). Thus the facts of Smith account for the court’s decision. The fact that the stab wound to the victim’s lung was serious was evidenced by the uncontrollable bleeding that had not ceased at the time of the victim’s death.
Lord Parker found that the wound that punctured the victim’s lung was the operating and substantial cause of his death notwithstanding the fact that the victim had been dropped twice and had been deprived of an immediate blood transfusion. Here, one may argue that the stab wound in itself was an immediate and direct cause of death, sufficient to kill the victim. As such, ‘we can ignore questions about whether any other actor in the drama was a novus actus interveniens: other causes can only be concomitant ones.’ (Simester, p. 419).
What exactly does the term ‘substantial’ cause mean? One reading of the term suggests that it means ‘simply more than minimal’ (Horder, p.126) as inferred from cases such as Cato 1976 in which the Court of Appeal stated that a legal cause would be one that ‘was outside the de minimis range, and effectively bearing upon the acceleration of the moment of the victim’s death.’ (R v Cato (1976) 62 Cr App R 41).
The case of Smith 1959 could be contrasted with Jordan 1956 where the court found that ‘palpably wrong treatment’ was provided by the hospital to the victim whose wound had ‘practically healed.’ As a matter of common sense and logic, an attribution of the cause of death of the victim to Jordan could not have been supported since the wound inflicted by him on the victim no longer played any part in causing death, and was merely ‘part of the history’ or the ‘setting’ in which a second overwhelming cause of death exists. ( Smith 1959 applied).
Novus Actus Interveniens
Existing between the spectrum of cases where an unbroken causal chain remains between the defendant’s conduct and the harm suffered by the victim, and those where the defendant’s conduct is relegated to the background facts, lies those problematic cases where novus actus interveniens or a new intervening voluntary act of a third party is argued to arise. Wilson argues that ‘one way of explaining this rule is that it is an example of the general principle that the defendant will only be responsible for harms occurring within the risk created by the defendant’s act.’ (Wilson, p. 112) .
A case in point is Rafferty 2007 where the Court of Appeal held that ‘the drowning of (V by the others)…was so completely different from the injuries for which Rafferty was responsible, that it overwhelmed those injuries and destroyed any causal connection between them and the death of V.’ ( Wilson p.113) .
As Simester argues ‘C causes E whenever there is a continuing physical reaction chain from C to E ….doing so allows us to acknowledge a form of causation that is not amenable to being defeated by a novus actus interveniens.’ (Simester, p.426). It is arguable however, that such a ‘continuing physical reaction chain’ was absent on the facts of Rafferty where the accused left the scene of the initial assault of the victim leaving the other assailants to drag the victim to the sea and drown him.
Moore notes that “To intervene between defendant’s act and his victim’s harm, an event must not itself be the product of defendant’s act. If it is such a product, then the event is merely part of the mechanism or means by which defendant’s act caused the harm; it is not an intervention preventing such causation by defendant.
Hart and Honoré give this example: ‘’a defendant who culpably pushes his victim to the ground is not liable for that victim’s death when the victim is killed on the ground by a falling tree. The falling tree, in such a case, intervenes between defendant’s push and the victim’s death.
By contrast, if the defendant’s push caused the victim to stagger into a rotten tree, and the impact caused the tree to fall and kill the victim, the defendant is held to have caused the death. While the tree’s falling was subsequent to the defendant’s act of pushing, it was not causally independent of the push and so does not constitute an intervening cause.” ( Moore, p.237)
The emphasis placed by the Criminal law on the need for a free and deliberate intervention of a third party unconnected to the defendant’s conduct to introduce a novus actus interveniens was affirmed by the House Lords in the case of Kennedy 2008. The following principle stated by Hart and Honore in their work ‘Causation in the law’ (1985) was cited:
“The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.”
The House of Lords were of the view that the victim in that case ‘freely and voluntarily administered the injection to himself knowing what it was’ thereby undermining the argument that Kennedy had administered the injection to him or had acted in collaboration or ‘concert’ with him to administer the injection.
This is argued to be the case since the victim, who had been handed the syringe by Kennedy, could have chosen to do a number of things with it, including discarding the syringe. Further, evidence was not forthcoming that Kennedy had coerced or exercised some form of duress on the victim in way that indicated the death of the victim was ‘part of the mechanism or means by which defendant’s act caused the harm (Moore, p.237).
Causation and Responsibility An Essay in Law, Morals, and Metaphysics
Michael S. Moore, 2009
Simester, A.P. Law Quarterly Review, 2017, Vol.133, pp.416-441.
Wilson W. , Criminal Law, 2017, Pearson, 6th Edition.