General Principles: Actus Reus PDF

2 General Principles: Actus Reus LEARNING OUTCOMES When you have completed this chapter, you should be able to: analyse the definition of a crime and understand the concept of actus reus, including the rules of legal and factual causati...

2 General Principles: Actus Reus LEARNING OUTCOMES When you have completed this chapter, you should be able to: analyse the definition of a crime and understand the concept of actus reus, including the rules of legal and factual causation; explain the law relating to acts, omissions and states of affairs. 2.1 Introduction In this chapter, you will begin your focus on the substantive criminal law, including the elements that must be proved by the prosecution to secure a conviction for a criminal offence. There is a Latin phrase that is fundamental to establishing criminal liability, namely actus non facit reum nisi mens sit rea. According to Lord Hailsham, as stated in the case of Haughton v Smith AC 476, this means ‘an act does not make a man guilty of a crime, unless his mind be also guilty’. Consequently, there are usually three key components required for a conviction: (a) guilty conduct by the defendant (actus reus); (b) guilty state of mind of the defendant (mens rea); and (c) absence of any valid defence. Thus, if a person deliberately shoots their neighbour in a dispute over a property boundary, and the neighbour dies, for the offence of murder, the prosecution must prove that the accused killed a person (the actus reus), that they had the necessary mens rea (an intention to kill or cause really serious harm) and there was no valid defence (for example self-​defence if it was submitted that the neighbour was about to assault the accused). Later on in this textbook it will become apparent that sometimes a defendant can be convicted of a crime even though they have no guilty state of mind (for example, strict liability offences), but proving the actus reus of a crime is always essential to securing a conviction. 2.2 General principles of actus reus The actus reus of every offence is different and may be found either in statute or in case law. The actus reus is essentially anything referred to in the definition of an offence other than the state of mind required of the defendant or reference to a possible defence. 9 Criminal Law Examples (1) The offence of criminal damage is established under s 1(1) of the Criminal Damage Act 1971: A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. The actus reus of the offence of criminal damage is therefore: (a) the destruction or damage of property; (b) which belongs to someone other than the defendant. The references in the definition to ‘intention’ and ‘recklessness’ relate to the defendant’s state of mind at the time of the offence and are not therefore part of the actus reus; instead they are the mens rea (state of mind) requirements which are discussed in the next chapter. The statute also includes the phrase ‘without lawful excuse’ and this is a reference to a defence to the crime of criminal damage. (2) The offence of murder is established at common law. The modern definition is as follows: The unlawful killing of a human being with malice aforethought [the intention to kill or to cause really serious bodily harm]. The actus reus of the crime of murder is the killing of a human being. The reference to ‘malice aforethought’ is concerned with the defendant’s state of mind at the time of the killing and is therefore the mens rea. In addition, the use of the word ‘unlawful’ within the definition means essentially ‘without a defence’. 2.3 Types of crimes In most instances, the defendant must do something before they can be said to have committed a criminal offence; in other words, criminal liability requires a positive act by the defendant. However, although this is usually the case, it is not always so. In some cases, the actus reus of an offence may be established by proving that the defendant failed to take action, or even just by proving that a state of affairs (certain circumstances) existed. As a consequence, although the concept of actus reus is commonly referred to as the ‘guilty act’, this is misleading as it may be satisfied in a number of ways. Furthermore, the actus reus of the offence may require additional circumstances to exist and/​or consequences to follow from the defendant’s actions before it is established. For example, for the offence of criminal damage, the defendant must not only do something (destroy or damage property) but also the circumstance must exist that the property belongs to another. The actus reus of an offence will therefore consist of one or more of the following components: (a) an act (or sometimes a failure to act) by the defendant; (b) the existence of certain circumstances at the time of the defendant’s conduct; (c) certain consequences flowing from the defendant’s conduct. 10  General Principles: Actus Reus To identify which of the three elements listed above are needed to establish the actus reus of a particular crime, the relevant legislation should be consulted for statutory offences plus any case law which has interpreted that provision; for common law offences (established by case law), judgments of the court will assist. 2.3.1 Conduct crimes A conduct crime usually involves an act (although it may also include an omission to act in certain situations, as will be seen later in this chapter). For most offences, the actus reus is defined so that it requires conduct on the part of the accused. To be criminally liable, the defendant must act in a particular way and an example of such an offence is perjury under s 1 of the Perjury Act 1911. The offence is satisfied if the defendant willfully makes a statement under oath that they know to be untrue. This may be regarded as a ‘pure’ conduct crime because it is the defendant’s behaviour rather than the result itself that is criminalised, so it would make no difference whether the false evidence had any impact on the outcome of the trial or not. 2.3.2 Result crimes Where an offence is described as a result crime, it is not enough that the defendant acts in a specific way; certain consequences must follow from that behaviour before the actus reus of the offence is established. Thus, for the offence of criminal damage, the property must be damaged or destroyed; and for murder, the defendant must have caused the deceased’s death. If this element of causation cannot be established, the actus reus of the result crime is not proved. Causation issues will be considered in more detail later in this chapter. Although offences may be labelled as ‘conduct crimes’ or ‘result crimes’, this is not always helpful as there is often an overlap. For example, an assault occasioning actual bodily harm requires conduct (such as a punch) but also a ‘result’, namely some harm to the victim. Furthermore, an offence may be described as a conduct crime, because the defendant must behave in a certain way, but also certain circumstances need to exist before the actus reus of the offence is established. An example is the offence of rape. The defendant’s conduct is penile penetration of the vagina, anus or mouth, but the actus reus is only established if it is also proved that, at the time, the other person did not consent. The circumstances of the lack of consent must be proved as well as the penetration. 2.3.4 States of affairs crimes Some offences do not require any conduct at all. They are defined so that the actus reus is satisfied simply by the existence of a state of affairs, or a particular set of circumstances. The effect is that the defendant may be liable even though they had no control over the situation. For example, in R v Larsonneur (1933) 97 JP 206 a French citizen was deported from Ireland to England against her will. She was convicted of an offence of being found illegally in the United Kingdom despite the fact she had no choice in the matter. The actus reus of the offence in this case was established by the defendant being ‘found’ in the United Kingdom after leave to enter the country had been refused. The defendant of course had no control over her presence here: she had been delivered to the port of Holyhead by the Irish police and handed over to the authorities whereupon she was charged with this offence! It would be difficult to sustain an argument that the defendant’s conduct in this case was voluntary in the usual sense of the word. This case demonstrates that, in rare instances, the defendant does not actually have to do anything to be convicted. If they are found to be in a particular situation and that is enough to satisfy the actus reus requirements of an offence, the defendant will be liable even though they were not responsible. 11 Criminal Law Example Naomi is at a local bar, celebrating the start of the weekend. Because she is driving home, she only drinks orange juice but, unknown to Naomi, one of her colleagues adds vodka to her drink. At the end of the evening, Naomi gets into her car, which is parked on the road outside, but is so affected by the alcohol that she cannot even get the key into the ignition. She is approached by a police officer, breathalysed and found to be above the legal limit for driving. Although Naomi has done nothing except sit in her car, she is guilty of an offence under s 4(2) of the Road Traffic Act 1988, which makes it a crime to be in charge of a motor vehicle on a road or other public place while unfit to drive through drink or drugs. This is because the actus reus is complete as soon as Naomi gets into the car, as s 4(2) is a state of affairs offence. The justification for such offences is public policy; it is regarded as more important to prevent drunken or drugged motorists from driving than being concerned with unfairness to a particular individual. Such offences are, however, the exception rather than the rule. They are known as offences of absolute liability and are very unusual. In summary, therefore, it is essential to check the definition of an offence to identify all the elements of the actus reus. These could include conduct by the defendant, the existence of certain circumstances and/​or certain results occurring, or even in rare cases that a state of affairs existed at the time of the offence. 2.4 Liability for omissions In most cases, a defendant in a criminal case will have taken positive steps in relation to a particular crime; for example, a person who uses a key to scratch the side of a car commits the actus reus of criminal damage. Similarly, in most murder cases, a defendant has stabbed, shot or beaten the victim to death. However, as mentioned earlier, it is sometimes possible to establish the actus reus of a criminal offence where the defendant has failed to do something: in other words, they are criminally liable for a failure or omission to act. There are many statutory offences which incur liability in these circumstances, for example in road traffic situations, including failing to stop at a red light or after an accident. There are also offences that cannot be committed by omission, such as burglary, theft, robbery and rape. This is because all these crimes require a positive act by the defendant: for example, it would be impossible to accuse a man of rape without his active participation in sexual intercourse as this is an essential element of the offence. 2.4.1 General rule In England and Wales there is no general duty recognised by the criminal law upon a person to intervene and help someone in trouble. The effect of this is that, for example, a stranger is under no obligation to save a child drowning in a puddle even though they could easily have done so, without any risk to themselves. 12  General Principles: Actus Reus Example Patricia is walking along a pavement one cold snowy evening when she sees a young woman slip on some ice and fall into the road, knocking herself unconscious. Patricia decides to do nothing to help, despite realising the danger from any passing traffic. The woman is run over by a car and dies from her injuries. Although Patricia certainly has a moral responsibility to try to help the woman, she does not incur any criminal liability by her failure to do so. To counter the harshness of the general rule, various exceptions to this principle have developed which allow the defendant to be found criminally liable for their omission. 2.4.2 Exceptions to the general rule Traditionally, there are four recognised types of situation under the common law in which a person can commit the actus reus of a crime by failing to act. 2.4.2.1 Special relationships Where there is a special relationship between the defendant and the victim, the defendant could incur criminal liability for failing to act. In the case of R v Gibbins and Proctor (1918) 13 Cr App R 134, the defendants were convicted of murdering a 7-​year-​old child who died of starvation. The first defendant, Gibbins, was the child’s father. The court held that, as a parent, he had a duty to care for his child. He had failed to do so and was therefore said to have committed the actus reus of murder –​he had killed a human being by his omission to feed the child. The second defendant, Proctor, was not the mother of the child but, nevertheless, she was convicted of murder due to her failure to provide food. The court said that she had assumed a duty towards the child by choosing to live with the father and by receiving house-​keeping money from him. There was therefore a close relationship with the child which placed a duty on Proctor to act to care for them. Her failure to do so established the actus reus of murder. What would have happened if Proctor had simply cohabited with Gibbins but had not received house-​keeping money: would she still have a special relationship with the child? The answer to this question is not clear, but a look at some other cases suggests that the answer may be yes, although much would presumably depend on the particular facts of a case. 2.4.2.2 Voluntary assumption of care Although it is unsurprising that the existence of a close relationship may give rise to a duty to act between parents and children, or between spouses, this principle extends further than might, perhaps, be expected. It includes those situations where a person voluntarily undertakes to care for another who cannot care for themselves, whether due to infancy, mental illness or physical disability. In R v Stone and Dobinson QB 354, the two defendants took in Mr Stone’s sister, Fanny, to live with them. Fanny was an eccentric who suffered from anorexia. Her physical condition deteriorated and she became bed-​ridden. The two defendants had physical and mental difficulties of their own and did little to assist Fanny, who eventually died of blood 13 Criminal Law poisoning caused by infected bed sores. The defendants were charged with her manslaughter (causing her death), the prosecution arguing that they had failed to take proper steps to care for Fanny when they were under a duty to help her. Both defendants were convicted. The reasoning given by the court was that a duty applied because Fanny was a blood relation to Stone, as she was his sister. Furthermore, both defendants had assumed a duty to act because Fanny was living in Stone’s house and they took (limited) steps to try to care for her. The court accepted that they had made occasional but ineffectual attempts to help Fanny, for example by leaving her food and trying to get medical help. However, their failure to properly care for Fanny meant they had caused her death and were therefore liable for manslaughter. This decision has been heavily criticised as the potential implications are wide ranging. For instance, does it mean there is a duty to care for all blood relations such as elderly parents, adult siblings and so forth? We may be under a moral duty to do so, but most people would be surprised to discover that they could face criminal charges for causing the death of a relative if, for instance, there was a family rift and they totally ignored a parent in need of care. Does the court’s decision mean a duty to act applies in relation to anyone who stays in our home? What about short-​term visitors? In the case of Dobinson, she seems to have been punished for her ineffectual attempts to care for Fanny: would she have been better off if she had totally ignored her and done nothing? The full reasoning of the court is to be found in the judgment of Lane LJ: At the close of the Crown’s case, submissions were made to the judge that there was no, or no sufficient, evidence that the appellants, or either of them, had chosen to undertake the care of Fanny. That contention was advanced by counsel for the appellant before this court as his first ground of appeal. He amplified the ground somewhat by submitting that the evidence which the judge had suggested to the jury might support the assumption of a duty by the appellants did not, when examined, succeed in doing so. He suggested that the situation here was unlike any reported case. Fanny came to this house as a lodger. Largely, if not entirely due to her own eccentricity and failure to look after herself or feed herself properly, she became increasingly infirm and immobile and eventually unable to look after herself. Is it to be said, asks counsel for the appellants rhetorically, that by the mere fact of becoming infirm and helpless in these circumstances, she casts a duty on her brother and Mrs Dobinson to take steps to have her looked after or taken to hospital? The suggestion is that, heartless though it may seem, this is one of those situations where the appellants were entitled to do nothing; where no duty was cast on them to help, any more than it is cast on a man to rescue a stranger from drowning, however easy such a rescue might be. This court rejects that proposition. Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; Mrs Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in by mid-​July. It was not disputed that no effort was made to summon an ambulance or the social services or the police despite the entreaties of Mrs Wilson and Mrs West. A social worker used to visit Cyril. No word was spoken to him. All these were matters which the jury were entitled to take into account when considering whether the necessary assumption of a duty to care for Fanny had been proved. 14  General Principles: Actus Reus This was not a situation analogous to the drowning stranger. They did make efforts to care. They tried to get a doctor; they tried to discover the previous doctor. Mrs Dobinson helped with the washing and the provision of food. All these matters were put before the jury in terms which we find it impossible to fault. The jury were entitled to find that the duty had been assumed. They were entitled to conclude that once Fanny became helplessly infirm, as she had by 19 July, the appellants were, in the circumstances, obliged either to summon help or else to care for Fanny themselves. The judgment of Lane LJ suggests that the defendants in Stone and Dobinson might have escaped liability if they had done nothing at all to help Fanny. There appears to be no general liability towards one’s relatives or persons staying at your home: it was the assumption of a duty towards Fanny by both defendants arising out of their ineffectual attempts to care for her that led to criminal liability. It is apparent from this case that the role of caring for others should not be undertaken lightly because, if done badly enough, criminal liability may result if death or injury occurs. However, an individual is not required to do a great deal to comply with their duty and absolve themselves of such responsibility. All that Stone and Dobinson needed to do in the situation in which they found themselves was to summon help, such as an ambulance or social services. 2.4.2.3 Cross-​over between special relationship and voluntary assumption of care The category of persons who may be held to have a special relationship with a victim, so as to be liable for failing to act, is still unclear. The only point which can be made with any certainty is that a parent has a special relationship with their minor child and is under a duty to act. As far as other relationships are concerned, a sensible conclusion would seem to be that a special relationship is formed if one assumes a duty to care for the victim, for example, by accepting payment or accommodation in return for caring for an individual, or perhaps where one invites a person, unable to care for themselves, to permanently live as part of one’s family. It may seem unjust that liability arises simply because the victim is a blood relative or because the defendant has offered limited hospitality to them, and the law is by no means clear in this area. Indeed, in the case of R v Ruffell 2 Cr App R (S) 330, it was held that a defendant who assumed a duty of trying to revive a friend who took drugs was correctly convicted of manslaughter of that friend when he failed to care for him properly. There is one area of special relationships that causes particular difficulties. Imagine that you have assumed a duty of care towards a family member who is terminally ill and who tells you that they do not want you to take steps to help them as they wish to be left to die. If you follow your relative’s instructions, could you face criminal liability for their death because you failed to act? This situation occurred in the case of R v Smith Crim LR 251. Here, the defendant was charged with the manslaughter of his wife, who died after giving birth to a still-​born child. There was evidence that the wife had told her husband not to seek medical attention and he had respected her wishes. By the time the wife changed her mind and the defendant called the doctor, it was too late to save her life. The trial judge instructed the jury that, in deciding whether the defendant had been released from his duty to act to help his wife by her specific directions, they should consider her state 15 Criminal Law of health. If she was capable of making rational decisions, it might be reasonable for the defendant to respect her wishes (so as not to be liable). If, however, the wife was so ill that she had lost the ability to make such decisions, it might be reasonable to override her wishes, whatever she said. In this case the jury were unable to reach a decision and so the defendant walked free, but the words of the trial judge suggest that, if the victim is capable of deciding their own fate, the defendant could be released from any duty to act established by the common law. Another interesting point to come from the case of Smith is the apparent acceptance that there is a special relationship between husband and wife, and this category can therefore possibly be added to the list above. Note, however, that Smith is only a first instance decision and the higher courts have not ruled on this issue. The other case that assists in determining when a defendant is released from a duty to act is that of Airedale NHS Trust v Bland 1 All ER 821. Tony Bland was one of the victims of the Hillsborough football stadium disaster and he suffered catastrophic injuries after being crushed in the stadium. He was diagnosed as being in a persistent vegetative state, meaning that the part of his brain which governed conscious thought had been destroyed. He had been in this condition for over three years when his doctors, with the support of his parents, applied to the court for permission to discontinue medical treatment and artificial feeding. Doctors and medical staff are under a duty to care for their patients, either under the special relationship criteria or more likely under a contractual duty (see below), but the doctors argued that this duty should cease if it was felt not to be in the best interests of the patient. Tony Bland was assessed as having no quality of life or any prospect of improvement, so that both the doctors and Tony’s parents considered it was not in his best interests to continue to sustain his life artificially. In this case, the court accepted the medical evidence that the injuries suffered by Tony meant there was no prospect of any further conscious existence and granted permission to discontinue treatment and feeding. Tony died shortly afterwards. The decision of the court is important for many reasons: (a) The House of Lords (now the Supreme Court) confirmed that doctors should seek court permission before withdrawal of life-​sustaining treatment such as artificial feeding, although in Frenchay Healthcare NHS Trust v S 2 All ER 403, the Court of Appeal accepted that there may be emergency situations where prior approval is impracticable. (b) The judges in Bland also confirmed that if a patient has refused life-​saving treatment, for example for religious reasons, not only is a doctor released from their duty to act but they would be committing a criminal offence of assault if they did. This view would seem to endorse that of the trial judge in R v Smith above. (c) Lastly, it is clear from Bland that the court was only concerned with omissions to act; there is still no legal right for a doctor to take positive steps for the purpose of ending a patient’s life, for example by deliberately administering an overdose of medication to a terminally ill person. In addition to there being criminal liability for failing to act if there is a special relationship between the defendant and the victim, there are other situations where liability may arise and these are discussed next. 16  General Principles: Actus Reus 2.4.2.4 A contractual duty to act If a contract of employment specifies certain obligations to act, a failure to comply with these can lead to criminal liability. Such a duty to act arises, for example, in the contracts of medical staff (to care for their patients), of the emergency services (to take all reasonable steps to maintain the safety of the public) and people such as lifeguards at local swimming pools (to act to ensure the safety of those who use the pool). Liability for failure to act in accordance with contractual obligations was considered in R v Pittwood (1902) 19 TLR 37. In this case, the defendant was a railway worker who was employed to guard the gate at a level crossing. One of his contractual duties was to open and close the gate so people could pass safely. He failed to close the gate on one occasion and a person was killed by a train. The defendant was convicted of manslaughter. He was contractually obliged to act to protect members of the public and was therefore liable in criminal law for his failure to act (or more accurately, in this case, for the consequences of his failure to act, as he was prosecuted and convicted for causing the death which followed). In modern society, people employed as carers or healthcare professionals are contractually bound to act and could be liable for a homicide offence if they fail to take steps to prevent those in their care from suffering harm. Example Sandra is a care worker who is employed by Great Care Ltd. She is responsible for visiting a number of elderly patients during the day. However, Sandra is rather lazy and often misses out those who are suffering from dementia as she knows they will not be able to inform on her. Muriel is 86 years of age and is scheduled to receive two visits a day to ensure that she eats and drinks properly. However, Sandra fails to attend many of these appointments and, as a consequence, Muriel dies of dehydration. Because Sandra is under a contractual duty to care for Muriel, she is liable under the criminal law for her omission. 2.4.2.5 Creation of a dangerous situation Thus far, we have identified three situations where the criminal law can prosecute someone for their omission. A more recent development is the duty that arises if a person creates a dangerous situation. If the defendant does something that endangers the victim and they are aware of it, they are under a duty to take reasonable steps to prevent the harm from occurring. Example Dhruv parks his car on a hill but forgets to put on the handbrake. As he walks away, he realises his omission but, because he is in a hurry, he does not return to the car. He walks past two children playing outside their house a little further down the hill. A few minutes later the car rolls down the hill and hits one of the children, killing them. Dhruv caused the child’s death by failing to put on the handbrake, but only if Dhruv is under a duty to act can he be held criminally liable. 17 Criminal Law In this situation, because Dhruv has created a dangerous situation by failing to apply the handbrake, the law imposes a duty on him to take steps to remove the danger. However, Dhruv is only required to return to the vehicle and pull the handbrake on; it is his failure to do this that leads to criminal liability. In R v Miller 1 All ER 978, the defendant was a squatter who lay on a mattress in his squat, began to smoke a cigarette and fell asleep. He awoke to find that the lighted cigarette had fallen onto the mattress causing it to smoulder. Instead of taking steps to remedy the situation, Miller simply got up, moved to another room and went back to sleep! The house caught fire but fortunately the defendant was able to escape. He was subsequently charged with causing criminal damage to the property. Miller argued that he could not be convicted as he had not actually done anything. He conceded that he had failed to act but submitted that there was no criminal liability for such an omission. The House of Lords disagreed. Upholding his conviction for criminal damage, the judges stated that the defendant had created a dangerous situation by smoking in bed and, having realised this, he was then under a duty to take steps reasonably available to him to prevent further damage. What steps will be reasonable will obviously depend on the circumstances in which the defendant finds themselves. Awaking to a small fire, Miller might have been expected to tackle the problem himself (if such action posed no danger to him), but if he had woken to find the house already ablaze, he may only be required to telephone the fire service after escaping. It is important to note that the criminal law does not expect people to be heroes in these types of situation, simply to take reasonable steps to remedy the dangerous situation that they have created. 2.5 A statutory duty to act In addition to the common law exceptions to the general rule that a defendant is not liable for an omission, there are various situations where a legislative provision imposes a duty on individuals to act in a certain way in a given set of circumstances. Parents must care for their children under the Children Act 1989; and car drivers must stop after being involved in an accident (Road Traffic Act 1988, s 170). The statute also provides that a failure to act in accordance with these provisions will result in criminal liability. 2.6 Differences between statutory and other duties to act There are a number of differences between failing to comply with a statutory duty to act and failing to comply with other duties to act, for example, contractual duties and special relationships. In particular, the penalties imposed by the courts are often quite different. Failing to act when required to do so under a statutory provision will usually lead to prosecution for the omission itself, for example, failing to stop at a red light. The penalties often consist of a fine and possible endorsements on one’s licence if it relates to a driving offence. Failing to act when there is a duty to do so imposed by contract or by a special relationship will usually result in criminal prosecution for the consequences of that omission. If the consequence is the death of a person, as in the cases of Pittwood and Stone and Dobinson referred to above, a conviction of murder or manslaughter can lead to a lengthy term of imprisonment being imposed. 18  General Principles: Actus Reus There are those who consider that the way in which breaches of contractual obligations are prosecuted is unfair. Although it may be correct to hold someone criminally liable in these circumstances, they should (perhaps) be charged with an offence of ‘failing to comply with a contractual duty’ rather than with an offence which reflects the consequences of that failure. For example, Pittwood should have faced a charge of failing to close the crossing gate rather than a charge of manslaughter for causing the death of the victim. If this had been done, so that he had been prosecuted for the omission to act (as happens with most cases of failing to comply with a statutory duty) rather than for an offence which reflected the consequences of his failure to act (a charge of manslaughter), the sentence imposed by the court following his conviction would have been considerably lower and he would have avoided the criminal label of being a ‘killer’. 2.7 Voluntary acts Generally, where the actus reus of an offence requires conduct on the part of the defendant, whether an act or omission, liability will only accrue where the conduct is willed. All this means is that the defendant’s movements must be voluntary rather than a reflex action or an act over which they have no control. It would be illogical if a person who, for example, fainted on a crowded train and fell onto someone while unconscious was prosecuted for an assault. In the case of Hill v Baxter 1 QB 277, the court gave the example of a person being attacked by a swarm of bees whilst driving and said that they would not commit the actus reus of the offence of careless driving if they lost control of their vehicle as their actions would not be voluntary. Similarly, if when cutting a piece of birthday cake, the defendant’s hand is grabbed by one of the party guests and the knife, while still in the hand of the defendant, is then plunged into the chest of the victim, there will be no voluntary act and no liability for assault. Where the defendant alleges that their conduct was involuntary, they may be advised to plead the defence of automatism. Automatism can be successfully argued only if the defendant is blameless. So, for example, if the defendant, when driving home from work, suffers an attack of cramp resulting in them losing control of their vehicle and colliding with another car, the defendant will not have committed the actus reus of careless driving because their actions were involuntary and they were not to blame. But what if the defendant was driving home after completing a night shift at work and they lose control of their vehicle as a result of falling asleep? Would they be guilty of a driving offence as a result of the subsequent collision? Here the defendant’s actions may still be involuntary, but in this example it can be argued that the defendant was partly to blame –​upon feeling tired they should have stopped their vehicle and rested –​and so the defendant could be guilty of careless driving. 2.8 Causation In this section, the concept of causation will be discussed. Causation applies to result crimes because, as part of establishing actus reus, the prosecution must also demonstrate that the accused’s act or omission actually caused the prohibited consequence. Examples (1) Daria stabbed Vera (conduct) leading to Vera’s death (result). (2) Deshi failed to seek medical help for his daughter (omission) so that the child died (result). 19 Criminal Law In both these examples, the act or omission led directly to the victim’s death so that, in legal terms, the defendants caused the deaths. Indeed, in most cases, it will be easy for the prosecution to demonstrate that the defendant caused a consequence so as to incur criminal liability. However, there are occasions when the issue is less clear and the courts have spent some time analysing problems of causation in criminal cases. Two tests have been developed to determine causation, and both must be established before the actus reus of a result crime can be made out. It is important to emphasise that causation is an element of the actus reus and should be dealt with as such, rather than as a separate entity or as part of the mens rea. In this chapter, the issue of causation is discussed in the context of homicide, but note that it may arise in any result crime as the general rule is that a defendant is criminally liable only if they can be shown to have caused, both in fact and law, harm to the victim. 2.8.1 Factual causation Factual causation is the principle that the defendant cannot be considered to be the cause of an event if the event would have occurred in precisely the same way without the defendant’s act or omission. Thus, the first test to be satisfied is whether the defendant, as a matter of fact, caused the victim’s death (or other prohibited consequence). The question to be asked here is: ‘But for the defendant’s conduct, would the victim’s death have occurred in the way that it did?’ If the answer is ‘no’, factual causation will be established. If the answer is ‘yes’ or ‘maybe’, for example, if there was more than one cause of death, other matters will need to be considered before causation can be proved. Example Dan shoots Jimmy, a healthy 25-​year-​old, at point blank range and kills him instantly. Dan has caused Jimmy’s death as a matter of fact and the ‘but for’ test is easily satisfied: but for Dan’s act, Jimmy would not have died as and when he did. In the case of R v White 2 KB 124, the defendant poisoned his mother’s drink intending to kill her. Although she suffered a fatal heart attack after drinking a small amount of the liquid, medical evidence confirmed that her death occurred from heart failure unconnected to the poisoned drink. The defendant’s actions did not contribute to his mother’s death, and so he was not liable for causing it. Clearly, everyone must die at some time; however, for factual causation to be established, the defendant’s act (or omission) must accelerate the death. The courts have held that the acceleration of death must be ‘significant’. In R v Cheshire 3 All ER 670, the Court of Appeal confirmed that ‘significant’ here simply meant ‘more than negligible’. This is for the jury to decide as a question of fact, but a day or two can be sufficient to establish factual causation. Example Harriet suffocates her mother who is terminally ill with only a few days left to live. Although the success of applying the ‘but for’ test may be less obvious here, because Harriet’s mother had ‘days’ to live when she was killed, it is likely that factual causation would be satisfied. 20  General Principles: Actus Reus Smith and Hogan (Criminal Law, 14th edn) provide an example of what would be ‘negligible’ acceleration: D and V are roped together mountaineers. V has fallen over a one thousand foot precipice and is dragging D slowly after him. D cuts the rope and V falls to his death five seconds quicker than both V and D would have fallen. Any acceleration of death is killing but factors that produce a very trivial acceleration may be ignored. D’s act is not a sufficiently substantive cause of V’s death. However, although this test provides some assistance in deciding whether the defendant is guilty, it is of limited value. If all the prosecution has to demonstrate is factual causation, because the test is so wide, it could catch people who in reality have only a very tenuous connection with the victim’s fate. Example Lilian arranges to go shopping with her friend, Mimi. As Mimi is walking down the high street to meet Lilian, she is knifed by a stranger and subsequently dies. Although it would be unfair to say that Lilian caused Mimi’s death, if the factual causation question is applied (but for Lilian’s action would Mimi have been killed?) the answer would be that she did cause the death. If Lilian had not invited Mimi to go shopping, she would not have been in the high street and been stabbed. Therefore, but for Lilian’s actions, Mimi would not have died. Figure 2.1 Factual causation FACTUAL CAUSATION But for D’s conduct would the result have occurred? Yes No D has not factually D has factually caused the caused the result – result and is criminally no criminal liability liable if legal causation can also be established Clearly, it is wrong for a person to be held responsible for all consequences of their conduct on a never-​ending basis. The law has to draw the line somewhere, and it is for this purpose that the principle of legal causation was introduced. 2.8.2 Legal causation Satisfying the test of factual causation is only the first hurdle. To establish causation in criminal law, the prosecution must also prove that the defendant was the legal cause of 21 Criminal Law death. Specifically, the defendant’s conduct must be a substantial and operating cause of the consequence. Figure 2.2 Legal causation CAUSATION But for D’s conduct, would the result have occurred? No Yes Causation in fact established Causation in fact not established – no actus reus Was D’s conduct an operating and substantial cause of the result? Did it contribute significantly? Yes No Legal causation established unless Causation in law not there is an intervening event which established – no breaks the chain of causation actus reus Over time, the principle of legal causation has been developed by the judges in a somewhat piecemeal manner. Hence there are a number of cases that illustrate how legal causation operates in practice, including the effect of events that happen after the defendant’s involvement, but which have an impact on the final outcome. As such, legal causation is a combination of different rules, not all of which will be relevant to every situation. 2.8.2.1 The consequence must be attributable to a culpable act or omission The rationale behind this legal principle is that, to attract sanctions under the criminal law, a person must be blameworthy in some way. This means that legal causation will only be established if the result was due to the defendant’s action. In the case of R v Dalloway (1847) 2 Cox CC 273, the defendant was negligently driving a horse and cart without holding the reins when a child ran in front of the cart and was killed. The jury was directed to convict for manslaughter only if they were satisfied that holding the reins would have saved the child. The jury acquitted, presumably being of the view that even though there was a culpable act, it did not cause the child’s death which could not have been avoided. 2.8.2.2 The culpable act must be a more than minimal cause of the consequence The prosecution must prove that the accused’s contribution to the death of the victim is more than trivial or minimal. A defendant will be the legal cause of the consequence only if their conduct was the ‘operating and substantial cause’ of that result –​R v Smith 2 QB 35 22  General Principles: Actus Reus (which is considered later in this chapter) and R v Malcherek and Steel 2 All ER 422. Lord Lane gave judgment in the Malcherek case as follows: There is no evidence in the present case that at the time of conventional death, after the life support machinery was disconnected, the original wound or injury was other than a continuing, operating and indeed substantial cause of the death of the victim … There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death. The defendant’s appeal was refused on the basis that their actions continued to be an operating cause of the victim’s death. 2.8.2.3 The culpable act need not be the sole cause There may be multiple causes of the particular result and it does not matter that the defendant’s act was just one of these. This is a principle that has long been established in case law. In R v Benge (1865) 4 F & F 504, the defendant was a foreman of a track-​laying crew and, as a result of misreading the train timetable, the track was up at a time when a train was due. The resulting accident caused death. Although the signalman and train driver were also at fault, the defendant could not rely on this to avoid liability. More recently, in the case of R v Pagett (1983) 76 Cr App R 279, the defendant held his girlfriend hostage and then used her as a human shield when the police fired back at him. He was found guilty of manslaughter and the Court of Appeal commented that: … in law, the defendant’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act (or omission) contributed significantly to that result. The effect of these principles is demonstrated in the next example. Example Ibrahim and Rayyan stab Nabeel who dies of his injuries. (1) The medical evidence establishes that both inflicted fatal wounds. In this instance, legal causation is clear and both defendants are guilty of murder. (2) The medical evidence indicates that no single stab wound caused Nabeel’s death, but it is proved that both defendants hurt Nabeel causing him serious injury. Although neither the the injury inflicted by Ibrahim nor that inflicted by Rayyan would, on its own, have caused Nabeel to die, the combination of injuries inflicted in the two attacks does kill him. In this instance, both defendants have caused death as the injuries inflicted by each of them contributed significantly (meaning ‘more than negligibly’) to the death of Nabeel. In summary, the effect of this rule is that, just because there are multiple causes of a particular result, liability is not precluded; more than one person may be liable for homicide or other result crimes. 23 Criminal Law 2.8.2.4 Taking the victim as the defendant finds them On occasion, the victim will have an unusual physical or mental state or belief which contributes to their death. The judges have adopted a robust approach to these cases, and defendants take their victims as they find them. If the victim is suffering, for example, from a serious heart condition or refuses medical treatment because of religious beliefs where such treatment could have saved them, the defendant has to answer for the consequences that follow, even if these are completely unforeseeable. If a defendant happens to choose a frail victim, or one with firm beliefs on medical treatment which lead to the refusal of such treatment, that is their bad luck. The authority for this proposition is R v Blaue 1 WLR 1411. In this case, the defendant stabbed a woman who refused a blood transfusion because of her religious beliefs. The victim died of the injuries inflicted by the defendant, although medical evidence suggested that a blood transfusion would have saved her life. The defendant was said to have caused the woman’s death and was convicted of manslaughter. On appeal against conviction, Lawton LJ said: … those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man … … 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. This issue was also considered in R v Watson 2 All ER 865. The defendants had thrown a brick through the window of the home of an 87-​year-​old man who suffered from a serious heart condition. When the man awoke to find the defendants in his home, they verbally abused him and he died 90 minutes later of a heart attack. The defendants were convicted of manslaughter. On appeal, the Court of Appeal (although allowing the appeal on a different ground) confirmed that, if the jury were properly directed, it was open to them to decide that the defendants had caused the victim’s death. This principle is sometimes referred to as the ‘eggshell skull rule’ on the basis that if the accused taps the victim on the head with a ruler using force that would normally only lightly bruise, but in this case break’s the victim’s skull because it is particularly soft, the defendant should not escape the consequences of their act. 2.8.3 The chain of causation must not be broken Defendants have sometimes tried to argue that the link between their act and the result (usually death) has been broken by an intervening act or event. This may be referred to by its Latin name of novus actus interveniens, which translates to ‘a new and intervening act’. The effect of an intervening act that breaks the chain of causation is that the defendant will not be the cause of the result and will be absolved of liability for it. Often you will see this referred to as an argument that the chain of causation has been broken. This aspect of legal causation is left to the jury to decide as a matter of common sense but, to assist them in their deliberations, various guidelines have emerged from Appeal Court decisions. These are likely to be of relevance in three situations: (a) where the victim acts in a particular way; (b) where an act by some other person intervenes between the defendant’s conduct and the end result; and (c) where some event occurs between the defendant’s conduct and the end result. Each of these will be considered in turn. However, in general terms, the argument that the chain of causation has been broken will not succeed if the court decides: (a) that, despite there being an intervening event, the injuries inflicted by the defendant were still an operating and substantial cause of death; or 24  General Principles: Actus Reus (b) if there was an intervening act or event, this was foreseen or foreseeable. Here, the court must decide whether it was foreseen by the defendant or foreseeable by the reasonable person that such an event was likely to occur in the normal course of events. 2.8.3.1 Victim’s acts The general rule is that if the victim does something after the initial act or omission of the accused but before the consequence occurs, and that intervention is ‘free, deliberate and informed’ (voluntary), then legal causation will not be established. However, although this principle remains valid, it will rarely apply in practice. For example, if a victim decided not to get medical help and died of their injuries, the defendant would almost certainly remain liable as their conduct contributed significantly to the victim’s demise. Alternatively, the court may find that the victim suffered from a mental condition which influenced their decision, in which case the ‘thin skull’ rule would apply. There are two important potential exceptions to the general rule, these being where the victim tries to escape and where they commit suicide. ‘Escape’ cases When determining the impact of the victim’s escape, the court will consider how foreseeable the victim’s response was. In R v Roberts (1971) 56 Cr App R 95, the victim jumped out of a moving car as a result of the defendant’s unwanted sexual advances. The defendant was held liable for an assault occasioning actual bodily harm despite the injuries having been caused in part by the victim’s own conduct. This is an example of what are referred to as ‘fright and flight’ cases. The chain of causation is not broken here because the victim’s act is not free, deliberate and informed; effectively, they have been forced into the situation. However, a defendant will not always be liable for the consequences of a victim’s escape. In the case of Roberts, Stephenson LJ stated that if the victim’s act was ‘so daft as to make it [the victim’s] own voluntary act’ then the chain of causation would be broken. Example Junaid has accepted a lift home from Yonis whom he met at a pub. On the way, Yonis threatens Junaid that if he does not pay £10 towards the petrol, he will slap him. Junaid is afraid of Yonis, so he opens the car door while they are travelling at 50 miles per hour along a busy road and jumps out. Junaid is hit by a vehicle that is following Yonis’ car and dies of head injuries which he sustained during the escape. This response would not be regarded as reasonably foreseeable in the circumstances as it is an excessive reaction to the threat. In summary, when determining the issue of causation, the court will take into account: (a) whether the escape is within the range of reasonable responses to be expected of a victim in that situation; (b) if the victim’s response is proportionate to the threat; or (c) whether it is so ‘daft’ as to be a voluntary act; and (d) the fact that the victim is acting in ‘the agony of the moment’ without time for thought or deliberation. 25 Criminal Law Suicide In some cases, the impact of the victim’s suicide may be covered by the principle that the defendant must take their victim as they find them, as discussed earlier in the chapter. However, this issue was revisited in a recent case. In R v Wallace EWCA Crim 690, the defendant threw sulphuric acid upon her partner, Mark van Dongen, whilst he was asleep. His injuries were horrific, including full thickness burns to 25% of his body. He was in a coma for four months, lost the sight in one eye and most of the sight in the other, his lower left leg had to be amputated and he was paralysed –​at one point, only being able to move his tongue. After developing further complications, the victim applied for euthanasia, which is legal in Belgium, and his wish was granted. The Court of Appeal rejected the defence argument that the actions of the doctors broke the chain of causation and that the act of voluntary euthanasia was a free, deliberate and informed decision sufficient to count as an intervening event. The judges stated that the question was whether it was reasonably foreseeable that the victim would commit suicide as a result of his injuries. All the circumstances should be taken into account to determine whether voluntary euthanasia fell within the range of reasonable responses that might have been expected from a victim in his situation. Although in this particular case the jury found the defendant not guilty of murder, in principle, voluntary euthanasia does not necessarily break the chain of causation. 2.8.3.2 Third party intervention An act by a third party may qualify as an intervening event sufficient to break the chain of causation if it is a voluntary one that contributes to the result. If successfully pleaded, the original defendant is not liable for the death at all. This may cover a variety of situations where someone other than the accused or the victim acts. An example would be an ambulance driver who crashes their vehicle while driving the victim of a stabbing to hospital, resulting in the victim’s death. This is an area where the law has developed over time, but the general principle can be summarised thus: A defendant will not be liable if a third party’s intervening act is either free, deliberate and informed, or is not reasonably foreseeable. In the case of Pagett (see above), the victim’s death was caused by the action of the police officer in firing at the defendant. Here, the officer’s response was not free, deliberate and informed as he was acting instinctively in self-​defence; and it was reasonably foreseeable in the circumstances because the defendant was shooting at the officer at the time. As a consequence, the police officer who shot the victim was absolved of all criminal liability. Furthermore, because his action did not break the chain of causation, the defendant, who used his girlfriend as a human shield, was found guilty of causing her death. 2.8.3.3 Intervening events Thus far we have considered the effect of an intervening act by the victim or a third party, but what if a natural event intervened to become the immediate cause of a victim’s death. For example, a defendant shoots their victim in the legs and runs out of the building, just before it is demolished by an earthquake. The victim dies of crush injuries from the collapsing building. In this situation, the defendant would have a much better chance of arguing that the chain of causation between their act and the death of the victim had been broken, because it is not reasonably foreseeable that an earthquake would occur. There is no direct binding authority on this point, presumably because such things rarely happen, but the general view is that the same ‘reasonable foreseeability’ test would apply. 26  General Principles: Actus Reus Examples (1) Charis argues with Bonnie and strikes her, leaving her unconscious by the side of a stream. The injury is not sufficiently serious to cause death. Although it is a sunny afternoon, there is a sudden thunderstorm and the stream becomes swollen with flood water. Bonnie drowns. Charis is not liable for Bonnie’s death because the flooding is (objectively) not foreseeable. Consequently, it will break the chain of causation. (2) Charis argues with Bonnie and strikes her, leaving her unconscious on the beach. The tide comes in and Bonnie drowns. Charis would be liable for Bonnie’s death by drowning as the tide coming in is a natural event that is reasonably foreseeable. The chain of events may also be broken by events other than natural ones, for example, where the victim is left in a house that is subsequently blown up in a gas explosion. 2.8.3.4 Causation in cases of medical negligence One particular area where the law has developed in relation to causation is that of medical negligence. There have been several cases in which defendants have argued that a victim has died not because of their actions, but because of negligent treatment by the medical profession. Effectively, the defendant is arguing that it was the poor medical treatment (intervention by a third party) that caused death and broke the chain of causation and thus the defendant should be absolved from liability. Example Josephina attacks Kirit who suffers an injury to his leg as a result of the attack. He is taken to hospital where a junior doctor wrongly gives Kirit a dose of antibiotics to which he is allergic. Kirit’s medical notes clearly indicate that he suffers from this allergy, but the doctor fails to spot this. Kirit dies as a result of an allergic reaction to the medication. It is clear that Josephina satisfies the ‘but for’ test of factual causation: if she had not injured Kirit, he would not have been a patient at the hospital and would not have suffered the negligent medical treatment. Turning to legal causation, the question to consider is whether the chain of causation has been broken. Josephina will argue that the injury inflicted by her to Kirit’s leg was not an operating and substantial cause of death. Furthermore, that it was not foreseen by her, nor reasonably foreseeable, that Kirit would receive negligent or bad medical treatment. She would therefore submit that the chain of causation between her initial act and the subsequent death of Kirit has been broken by the intervening event of the poor medical treatment. It is fair to say that, although some jurors might be persuaded by such an argument, equally, others would still want to hold Josephina criminally liable for Kirit’s death. In order to avoid an easy escape by a defendant who is, after all, responsible for putting the victim in the hospital in the first place, the courts have developed a line of authorities to deal with such situations. 27 Criminal Law In R v Jordan (1956) 40 Cr App R 152, the victim died in hospital eight days after being stabbed by the defendant who was convicted of murder on the ground that he had caused the victim’s death. There was, however, evidence that the victim had been given poor medical treatment in hospital and that, at the time of his death, the initial wound inflicted by the defendant had largely healed. On appeal, the defendant’s conviction was quashed. The Court of Appeal held that the medical treatment received by the victim was ‘palpably wrong’. Indeed, he actually died of broncho-​pneumonia as his lungs became waterlogged due to the large quantities of liquid which was given intravenously. The view of the Court was that where death followed from normal medical treatment used to deal with an injury inflicted by the defendant (presumably, for example, where death occurred from complications following surgery necessitated by the original injury), death could be regarded as having been caused by the defendant; but where the treatment was ‘not normal’, the same inference could not be drawn. The decision in Jordan was clearly generous to the defendant and is an extreme example limited to its facts. Later cases, although not overruling Jordan, have been anxious to stress that it was ‘an exceptional case’ and have developed tests which are much more likely to secure the conviction of the defendant who caused the initial injuries. In R v Smith 2 QB 35, the victim died at an army medical centre shortly after being stabbed by the defendant. There was evidence that the medical treatment the victim received had been ‘thoroughly bad’ and might have affected the victim’s chances of recovery. On appeal against a conviction for murder, the defendant argued that the trial court had not properly addressed the question of causation, specifically the defendant’s claim that the medical treatment given had acted as an intervening event to break the chain of causation between the defendant’s act and the subsequent death of the victim. The appeal was dismissed by the Courts-​Martial Appeal Court (broadly speaking, the military equivalent of the Court of Appeal). In his judgment, Lord Parker CJ set out the following guidance in determining whether the defendant could be said to have caused the victim’s death: … if, at the time of death, the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death did not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. It is established law that the defendant’s conduct need not be the sole or main cause of death as long as it is a substantial cause, with ‘substantial’ simply meaning ‘more than minimal’. Lord Parker CJ, in Smith, was clearly following this line of reasoning. In medical treatment cases, following Smith, the defendant will find it difficult to argue a break in the chain of causation if the injury they inflicted is still operating at the time of death. As a result, even cases of quite serious medical negligence may not be enough to enable the defendant who inflicted the initial injury to escape liability. 28  General Principles: Actus Reus This point was demonstrated in the leading authority on this topic, namely R v Cheshire 1 WLR 844. In this case the defendant shot a man who underwent surgery, including a tracheotomy, as a result of the gunshot wounds. The victim died two months later due to scar tissue at the tracheotomy site obstructing his breathing. The defendant argued that he should not be responsible for the victim’s death, as the negligent medical treatment broke the chain of causation. This issue was considered by the Court of Appeal and Beldam LJ gave the judgment, extracts of which are set out below: When the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the defendant that it could be regarded in law as the cause of the victim’s death to the exclusion of the defendant’s acts … … In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the defendant was the cause of death … the defendant’s acts need not be the sole cause or even the main cause of death it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the defendant unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant. It is clear from the words of Beldam LJ that the Court of Appeal would be extremely reluctant to allow a defendant to escape liability because of poor medical treatment received by the victim except in the most exceptional cases. This applies whether the victim’s death is due to positive (and wrong) action by doctors or by their inaction. The only point that can be made with certainty, therefore, is that the test established in Cheshire will be applied by the court where a question of causation falls to be determined in a medical case, and that the court will decide cases on the particular facts. Example Continuing with the example (above), Josephina would escape liability for causing Kirit’s death only if the court found that the poor medical treatment he received was so independent of Josephina’s acts and, in itself, so potent in causing death that Josephina’s contribution to Kirit’s death was regarded by the court as insignificant. The court would require evidence on matters such as how serious was the initial injury inflicted by Josephina, how long Kirit had been in hospital when the negligent treatment was administered and how near he was to a full recovery in deciding, according to Cheshire, whether Josephina caused his death. However, it seems unlikely that Josephina would be successful in arguing a break in the chain of causation. Finally, how do the rules of causation apply where the defendant attacks a victim who then cannot receive medical treatment for a pre-​existing condition because of the injuries inflicted by the defendant? 29 Criminal Law This situation was considered by the Court of Appeal in R v McKechnie Crim LR 194. In this case, the defendant attacked his victim causing them to suffer severe head injuries. On admission to hospital, doctors discovered that the victim suffered from a duodenal ulcer. A medical decision was made that, because of the head injuries, it would not be possible to operate on the ulcer. The victim died five weeks later when the ulcer burst. The defendant was found to have caused the victim’s death and was convicted of manslaughter, a decision upheld by the Court of Appeal. The defendant had argued that he was not responsible for the ulcer and, as that had killed the victim, he could have no liability for the death. The Court of Appeal confirmed that the chain of causation between the defendant’s attack and the victim’s death was intact because the assault had prevented an operation on the ulcer which would have saved the victim’s life. The decision not to operate had been reasonable and it was not ‘so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death’. This decision is consistent with the principle that a defendant must ‘take their victim as they find them’, considered at 2.8.2.4 above. It appears therefore that in cases of medical treatment, the courts are inclined to place great emphasis on the ‘but for’ test to hold the defendant liable. Only in very extreme cases will poor treatment break the chain of causation between the defendant’s act and the victim’s death. 2.8.4 Overview It is clear that, in order to establish the actus reus of murder, the prosecution must be able to prove both factual and legal causation. Set out below is a diagram which provides an overview of the principles that apply to legal causation and the acts and events that may break the chain of causation, so the defendant is no longer criminally liable for the result. Figure 2.3 Legal causation and intervening acts LEGAL CAUSATION The consequence The culpable act must be The culpable act D must take their must be attributable a MORE THAN MINIMAL need NOT be the victim as they find them: to a CULPABLE ACT cause of the consequence SOLE cause EGG SHELL SKULL rule The CHAIN OF CAUSATION must not be broken Yes INTERVENING EVENT? No Maybe Third party intervention if free, Medical Reasonably Unforeseeable ‘Daft’ Victim’s negligence deliberate and informed OR foreseeable events escapes suicide (usually) not reasonably foreseeable escapes 30  General Principles: Actus Reus 2.9 Summary This concludes our examination of the basic principles relating to the actus reus of an offence. The specific actus reus requirements of individual crimes will be covered as they arise, but remember that, usually, the actus reus is only part of the definition of the offence that has to be proved against a defendant. In most instances, the prosecution must also establish that the defendant had a guilty mind at the time they committed the actus reus. (a) To be criminally liable, the defendant must satisfy all the elements of the actus reus for the particular crime. (b) The actus reus of an offence may involve an act or an omission (conduct crimes); certain consequences being caused (result crimes); or the existence of surrounding circumstances (state of affairs crimes). (c) The general rule is that there is no criminal liability for an omission to act, but there are exceptions, namely statutory duty, contractual duty, special relationship, voluntary assumption of care and duty to avert a danger created. (d) Causation must be proved as part of the actus reus for result crimes. For factual causation, it must be established that ‘but for’ the defendant’s conduct, the result would not have occurred as and when it did. Legal causation requires the defendant’s conduct to be a more than minimal cause of the result, so that it is an operating and substantial cause of the outcome. (e) If the chain of causation is broken by an intervening event, the actus reus will not be established. Such events include: an unforeseeable escape; a voluntary act by a third party; negligent medical treatment that was ‘so independent of the defendant’s act’ and ‘so potent in causing death’ that the contribution made by the defendant was rendered insignificant; and events that are not reasonably foreseeable. (f) The eggshell or thin skull rule states that the defendant must ‘take their victim as they find them’. Next, you should attempt the activity to test your understanding of the legal principles that apply to actus reus. ACTIVITY Timothy pushes Elizabeth who falls backwards and hits her head on a stone fireplace at her home. Elizabeth is knocked unconscious and Timothy decides to leave her lying on the floor. Later, a fire breaks out and Elizabeth is burnt to death. PART 1 Could Timothy be said to have caused Elizabeth’s death? In considering your answer, first apply the ‘but for’ test to determine factual causation. If you decide that Timothy did, as a matter of fact, cause Elizabeth’s death, would you expect him to be prosecuted for an offence relating to homicide; in other words, it is just for him to face criminal liability for Elizabeth’s death? Note that even if causation is satisfied, Timothy is unlikely to be guilty of murder as he lacks the relevant criminal state of mind and the appropriate charge would be manslaughter. 31 Criminal Law COMMENT Factually, applying the ‘but for’ test, Timothy could be said to have caused Elizabeth’s death. Even if there is no evidence that the injuries he inflicted would have been sufficient to cause death or that Timothy was in any way responsible for the fire, if he had not knocked Elizabeth unconscious, she would have been able to escape. Hence, ‘but for’ Timothy’s act, Elizabeth would not have died as and when she did. PART 2 There is no direct link between Timothy’s act and Elizabeth’s death, so could he try to escape liability by submitting that the test for legal causation has not been satisfied, thus absolving him of responsibility? COMMENT If the principles established in Malcherek and Steel are applied, the injury Timothy inflicted on Elizabeth does not appear to have been a substantial and operating cause of her death which was brought about by burning. However, he will remain liable if the intervening event, the fire, does not break the chain of causation. PART 3 Whether the outbreak of the fire breaks the chain of causation will depend upon whether it is a foreseeable event. In what circumstances would it be more likely that this test would be satisfied? COMMENT In the absence of any further information, it does not appear that Timothy foresaw, or that a reasonable person would have foreseen, that a fire would break out at Elizabeth’s home, and therefore the test of legal causation would not be satisfied. As a consequence, Timothy could not be convicted of any charge relating to the causation of Elizabeth’s death. He is more likely to be found to have caused Elizabeth’s death if, for example, as he left the house, Timothy saw a cigarette burning a hole in the sofa near to where Elizabeth was lying. Such information would suggest that it was foreseeable, at least to a reasonable person, that a fire would break out. 32