Elements of Criminal Liability
Actus Reus - Causation
Elements of Criminal Liability
Actus Reus - Causation
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Elements of Criminal Liability
Actus Reus - Causation
Objectives
• Identify the meaning of the term causation
• Describe and give examples of the meaning of
factual causation
• Describe and give examples of the meaning of
legal causation
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Elements of Criminal Liability
Actus Reus - 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.
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Elements of Criminal Liability
Actus Reus - Causation
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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Elements of Criminal Liability
Actus Reus - Causation
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.
The Defendant’s Act
Pulling someone so
that they fall over
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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.
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Elements of Criminal Liability
Actus Reus - Causation
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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Elements of Criminal Liability
Actus Reus - Causation
‘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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Elements of Criminal Liability
Actus Reus - Causation
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
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Elements of Criminal Liability
Actus Reus - Causation
‘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.
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Elements of Criminal Liability
Defendant’s
act
Actus Reus - Causation
DIRECT
CAUSE
INDIRECT
CAUSE
Defendant
stabs victim
through the
heart
Defendant
pushes victim
Chain of
Causation
Chain of
Causation
Prohibited
Consequence
Victim dies
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Victim falls,
hits head and
fractures skull
Chain of
Causation
Victim dies
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Elements of Criminal Liability
Actus Reus - Causation
Defendant’s Act
Stage 1
Factual
Causation
The ‘But For’ Test
White [1910]
Substantial Cause
Cheshire [1991]
Stage 2
Legal
Causation
Need not be sole
or main cause
provided it is A
cause
Pagett (1983)
Prohibited
Consequence
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Elements of Criminal Liability
Actus Reus - Causation
Facts
But For
Test
Outcome
Vikki tells her husband
Neil to start walking to
work as part of an
economy drive.
But for Vikki’s insistence
that Neil walk to work,
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.
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.
But for Neil’s abuse of
Dick, would Mark have
died?
No, Neil’s abuse angered
Dick and led him to attack
Mark thus Neil is a factual
cause of Mark’s death.
Angered by Neil’s abuse,
Dick attacks Mark, a
passer-by, causing his
death.
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But for Dick’s attack,
would Mark have died?
No, Dick’s attack leaves
Mark with serious injuries
from which he dies. Dick
is a factual cause of
Mark’s death
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Elements of Criminal Liability
Actus Reus - Causation
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
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Elements of Criminal Liability
Actus Reus - Causation
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)
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Elements of Criminal Liability
Actus Reus - Causation
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
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Elements of Criminal Liability
Actus Reus - Causation
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
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Elements of Criminal Liability
Actus Reus - Causation
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)
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Elements of Criminal Liability
Actus Reus - Causation
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
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Elements of Criminal Liability
Actus Reus - Causation
R v Pagett (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
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Elements of Criminal Liability
Actus Reus - Causation
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
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Elements of Criminal Liability
Actus Reus - Causation
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
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Elements of Criminal Liability
Actus Reus - Causation
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
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Elements of Criminal Liability
Actus Reus - Causation
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
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Elements of Criminal Liability
Actus Reus - Causation
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.
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Elements of Criminal Liability
Actus Reus - Causation
R v Blaue (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)
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Elements of Criminal Liability
Actus Reus - Causation
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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Elements of Criminal Liability
Actus Reus - Causation
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 'papably wrong.’
• Think also about the case of Smith (soldier) above
• One final case here are the two joint appeals of
Malcherek and Steel (1981)
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Elements of Criminal Liability
Actus Reus - Causation
R v Malcherek 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
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Elements of Criminal Liability
Actus Reus - Causation
Objectives
• Identify the meaning of the term causation
• Describe and give examples of the meaning of
factual causation
• Describe and give examples of the meaning of
legal causation
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