Analysis the Main Principles of Causation and Difficulties to Apply them

Introduction

The broad definition we can give of Causation is the acts of the defendant must be in relationship with the result perpetuated. To clarify the definition, we shall analyse it as the causal link between the actions of the defendant and the results of his actions in order to establish an offence. The criminal law established a set of principles that will I will be analysed in 4 different parts. Firstly, Factual Causation, Secondly Legal Causation, thirdly the eggshell skull rule and last but not least the Novus Actus Interveniens. This paper analyses the main principles of causation and how difficult is to apply them.

Factual Causation

The factual causation is the first element that shall be applied in order to establish it. The ‘but for’ test first applied in the case of R v Pagett [1983] . The defendant shot a police officer who was trying to arrest him. The defendant used as a shield a pregnant woman to defence himself from the police officers. The office open shot as a result to kill the pregnant woman. At his trial, the defendant found not guilty of murder but convicted for a lesser offence (manslaughter). The question that judges make was whether the hostage would not have died ‘but for’ the defendants’ actions. In the case the factual causation applied as: If the accused had not fired first, the constables would not have fired consequently the hostage will not have died.

However, there is an exception in the case of R v White [1910] , In that case, the defendant put poison in the victim’s drink, with having the intention to kill her. The victim drunk a couple of drink and get to sleep. The medical evidence showed that the victim died from a heart attack but not for the poisoning. The defendant present to the court evidence to prove his innocence and stated that he did not have the intention to kill her. Therefore, there was no factual causation and consequently no murder. The outcome of this case was that even if the prosecution fails to establish factual causation, then the accused cannot be liable for an offence on that, but he may be still liable for another offence.

In R v Pagett , Goff LJ stated ‘the judge to direct… in simple terms, in accordance with the legal principles which they have to apply. It would then fall to the jury to decide the relevant factual issues which, identified with reference to those legal principles, will lead to the conclusion whether or not the prosecution has established the guilt of the accused of the crime of which he is charged’.

In Attorney General’s Reference (No. 4 of 1980) , the court held that a failure of the prosecution identifying the cause was not relevant to an acquittal. The court provided that the jury shall be satisfied with the fact that each of the defendant’s actions was sufficient to kill, then they shall convict.

Professor David Robertson has established a five-step test for 'but for' causation. First, the injured party identifies the particular loss for which he is seeking damages . Second, the defendant's breach that allegedly caused the loss must be identified . Third , one must imagine the state of the world if the defendant had performed as promised, but with no other changes. Fourth, one must determine whether the particular loss still would have occurred in the hypothetical state of the world identified in step three . The fifth and final step answers the question of whether there was but-for causation based on the conclusion reached in the fourth step.

It is important to view the factual causation from a philosophical approach. L. Green distrusted all tests of causation. He banished the but-for test from the domain of duty-risk analysis because it was an evaluative, not scientific, test . Green felt that causal connection should be focused not narrowly on the substandard aspect of defendant's conduct, but broadly on the defendant's full pattern of behaviour in its environmental context. Green distrusted 'causation' and its connotations that, in the interest of clarifying the task at each stage of the analysis, he excised the word 'cause' from his phrasing of both the causal-relation and scope-of-duty agendas.

In the other hand, Wex Malone disagreed with Green's atomistic view of factual cause and both of Green's causal corollaries. Malone was aware that the but-for test is too frail a reed to support factual causation in every case. The but-for test cannot identify the cause of harm in two broad categories of cases, namely, those involving omissions and multiple sufficient causes.

Legal Causation

The main principle in legal causation known as the test of the beyond de minimis. It means that ‘‘the contribution of the accused to the result is more than minimal.’’ . which means that if the defendant's act is too trivial as a cause of the proscribed result, too remote to be deemed to have contributed to the result, then the defendant cannot be held to have caused so. However, the cause need not be a substantial cause as this constitutes another test.

In R v Hennigan held that a cause which provides more than a minimal contribution, however small, as long as it's miles more than de minimis, will be sufficient to make get up causation. It wants not to be substantial. The test had been confirmed in R v. Cato , where the defendant's management of heroin to his buddy who died of an overdose, notwithstanding he did not, changed into deemed to be a reason greater than de minimis and led the court to convict him of manslaughter. Also, R v. Malcherek : “it need hardly be added that it need not be substantial to render the assailant guilty” concerning the cause of the result.

The main problem arising, in my opinion, is that such check may encompass causes which might be so small of their contribution to the proscribed result, that one may want to hardly ever say that such purpose was sufficient and now not too remote to the consequence. And this will must do with the problem of the courts to draw the road among what is greater than de minimis and what is no longer (see for instance R v. Adams ).

That is why another main test has been established: this is the test of substantial cause. In Canada, the decision in Harbottle v. The Queen applied this test, holding that the cause needs to be the “substantial and integral cause of death” .

Novus Actus Interveniens rule and the eggshell skull rule

The principle of Novus Actus Interveniens is a principle that could break the chain of causation among the act of the defendant and the proscribed result. The liability isn't imposed at the defendant when his chain of causation is broken by means of the voluntary motion of a 3rd party that does avert the act of the accused as a purpose of the proscribed result. Moreover, the actions of the third party should be unconnected with the ones of the defendant and amount to a new reason.

In R v Cheshire the court held that related to remedy causing death, such must be so extraordinary and unusual that it completely overshadows the original wound caused by the defendant, to enable Novus Actus Interveniens to apply. In R v Smiths The Court of Appeal held that after the defendant's original purpose turned into a giant and operative reason of death, the chain of causation would not be damaged and the precept of Novus Actus Interveniens will not practice, therefore.

In R v Pagett it was held that the act of the third party under the principle of Novus Actus Interveniens must be “so independent of the act of the accused that it should be regarded in law as the cause of the victim's death, to the exclusion of the act of the accused”.

You must take your victim as you find them. In Criminal Law, it defined as Thin skull rule. This rule bear on whether the defendant was aware of the condition or not. In Blau [1975] Lawton L. J held that “it does not lie in the mouth of the assailant to say that the victim’s religious beliefs which prevented him from accepting certain types of treatment were unreasonable. So, the refusal of your victim to treatment would not relieve you of liability in the thin skull rule. And so, it would not break the chain of causation.’’

There are also occasions where the defendant asserts that the chain of causation which connect his conduct with the result has been broken by an intervening event, to clarify it intervening event alludes to as ‘Novus actus interveniens ‘. Hart & Honore (1959) interpret Novus actus interveniens as a superseding cause or intervening cause that can break the chain of causality so it can eliminate the liability or reduce the nature of liability of the main actor (principal offender).

Again, in Hart & Honore (1959) gave an example are presented as follow; A throws a cigarette butt into the bushes at the edge of the forest. Unbeknownst to A, B then pours gasoline into the bushes, which causes a forest fire. Is it A’s deed that caused the forest fire when he did not intend to burn down the forest? Of course, A is not responsible for the forest fire; it is B’s intervention that caused the forest fire.

In Novus, Actus Interveniens are applying different tests to decide whether the chain of causation has been broken or not. I will categorise these intervening acts into three which are as follow: Natural Causes; We can define them as events which occurs by an act of god.

The Principle of foreseeability is the reason which will determine whether a naturally occurring event will amount to an intervening act which breaks the chain of causation. A leading case that is a good example where natural events break the chain of causation is R v Hart [1986], where the defendant assaulted the victim and left the victim unconscious. The defendant left the victim on a breach under the high-water mark and the victim eventually drowned. The case led to the Court of appeal which held that the defendant had caused the death. This case shows that the action of the defendant was foreseeable occurrence so it will not break the chain of causation.

The second principle is the act of the third party. The issue of causation arises from the moment there is conduct by a third party. The general rule is that a person is responsible for the actions that do himself but can not be liable for the act from another person. To examine it, I will present a hypothetical example. Let us suppose that A stabs B, and when transported to the hospital, the ambulance gets involved in a car accident with C and the victim dies, then we can say C’s intervention has broken the chain of causation. The unforeseeable of a third party breaks the chain of causation.

The act of the victim is the third principle that will be discussed. The chain of causation in this principle can not be broken unless the victim’s acts are unreasonable. The general rule here also is you take you, victim, as you find it. Two important cases will be discussed here. Firstly, R v Roberts [1971] , where the victim had been given a lift by the defendant, but she jumped out of the car when the defendant began to make sexual advances to her. The victim injured from her actions. The issue, in this case, as if the defendant’s actions was sufficient to break the chain of causation between the sexual advances and the injuries from the victim. Secondly, R v Blaue , where the defendant stabbed his victim four times. The victim was a Jehovah's Witness who refused the blood transfusion that could have saved her. The defendant claimed that her refusal was so unreasonable as to break the chain of causation.

The court rejected this argument saying that, inter alia, those who use violence on other people must take their victims as they find them (referred to as the Eggshell Skull rule). The defendant's appeal was dismissed, and he remained convicted of murder.

Lawton LJ stated: '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 is our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.'.

These 2 cases above present to us how difficult the law on causation can be to understand. The general principles hide numerous hard questions that the courts have to bear in mind. 

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