Causation is essentially the casual relationship between conduct and result and is an important aspect of the actus reus of an offence. There needs to be an unbroken and direct chain of causation between the defendant’s act and the consequences of that act.
There must be a novus actus interviniens that breaks the chain of causation else there will be no criminal liability for the resulting consequence. There are two types of causation, factual and legal. The causation concerning R v Kennedy is one of Legal Causation, in specific, the Novus Actus Interviniens. The definition being ‘A novus actus interveniens is an intervening act or event that takes over as the new ‘operative’ cause, relegating the defendant’s actions to the realms of the history of the case.’
The importance of a novus actus interviniens has been confirmed in R v Kennedy. Simon Kennedy had prepared a syringe of heroin for Marco Bosque. Bosque injected himself and died shortly after. Kennedy was charged with supplying a class a drug and manslaughter, and convicted on both charges.
Therefore in order to view the impact of R v Kennedy, case law before and after must be analyzed.
Before Kennedy, criminal liability imposed on persons supplying drugs to another, who subsequently died, was a grey area of uncertainty. In R v Dalby , the defendant who supplied lawfully obtained prescription drugs to the deceased was not convicted of manslaughter. Waller LJ held that the defendant’s ‘supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous’ and it was the deceased’s self-injecting which was the direct cause of death, not the defendant’s act of supply. Similarly in R v Dias , the voluntary consumption of the drugs by the deceased amounted to a new intervening act and the chain of causation had therefore been ruptured. It should also be noted that the defendant here had prepared the syringe whereas the defendant in Dalby did not.
Yet, a similar case with an opposing result is one of R v Finlay . The defendant had prepared a syringe and given it to the deceased who injected herself, consequently the defendant was convicted of manslaughter. The reasoning was framed around the case of R v Roberts, Stephenson Lj stated, obiter, that the chain of causation would only be broken where the victim ‘does something so daft’or so unexpected that no reasonable man’ would foresee it. As per Buxton LJ in Finlay, ‘the defendant produced a situation in which the deceased could inject and in which the injection by her into herself was entirely foreseeable’ .
Not only this, the judge relied on the case of Empress car , the defendant had produced a situation in which the victim could inject herself, in which her self injection was entirely foreseeable and in which self injection could be not regarded as something extraordinary. Although the Court of Appeal upheld the judges’ analysis and dismissed the appeal, it was wrong to do so.
It’s decision conflicted with the rules of personal autonomy and informed voluntary choice.
Kennedy has since clarified the situation in fatal drug self-administration cases. The critical question asked by the Court was whether mere supply of a drug was an act causative of the drug taker’s death, given that the drug taker had injected himself. The House of Lords held that ‘the ultimate harm could not be imputed to the defendant as [the deceased’s] autonomous fully informed choice broke the chain of causation’ Thus, where a person supplies a prohibited drug to another who then self-administers that drug and dies, the person who supplied the drug will not be found guilty, provided the deceased is a fully informed adult who freely and voluntarily self-administered the drug. This however ‘is only concerned with unlawful act manslaughter’ and it may be that the drug supplier will be held liable for gross negligence manslaughter.
This has occurred within a more recent case of R v Evans the appellant was convicted of gross negligence manslaughter along with her mother in relation to the death of her 17-year-old sister, Carly Townsend who died of a heroin overdose.
It was held that the judge was wrong to leave the jury to decide the issue of duty of care. The existence, or otherwise, of a duty of care or a duty to act, is a question of law for the judge: the question whether the facts establish the existence of the duty is for the jury. However, the misdirection did not render the conviction unsafe. The appellant’s duty of care arose not out of her familial relationship, nor from her actions in seeking to care for Carly, but from her supplying the heroin. She had in effect created a dangerous situation and failed to take action to reduce the risk by summoning medical assistance, which would have saved her.
However, this contradicts previous case law. Such as in the case of R v Khan where there was a failure to call for aid after an overdose, but in neither case was it held that a drug supplier does owe a duty of care to his customer’
It therefore seems inconsistent with case law that Evans was successfully convicted. The duty of care found in Evans was based on the fact that Evans ‘created or contributed to the creation of a state of affairs which [she knew], or ought reasonably [to have known], [became] life threatening’ and a duty to act by taking reasonable steps to save her sister had thus arisen. This reasoning is somewhat flawed. Firstly, it does not seem fair to hold that Evan’s negligent omission caused her sisters death because there is no sufficient causal link between Evans’ act of supply and her sister’s death. Secondly, it seems harsh to impose a duty of care on Evans merely because she helped her sister to create a dangerous situation for herself. Doing so completely overlooks the fact that the sister made the voluntary and independent choice to self-inject.
Therefore, the case of Kennedy has impacted cases from then on because the House of Lords ruled that adults of sound mind are to be treated as autonomists, the victim acted voluntarily, freely and in an informed manner. Thus a novus actus interviniens has occurred, although as I’ve discussed defendants can be found criminally liable for gross negligence manslaughter.
On a personal note, I believe this the idea of an autonomous person with a sound mind should be held accountable for their actions is correct. But for example, the case of R v Khan , the victim being an age of 15 years old, the fact the convictions were quashed seriously conflicts with my moral compass. But I realize this is purely because of the age of the victim. Therefore, overall I believe R v Kennedy’s impact on causation has been one of beneficial, as it reinforces the principle of autonomy.
However, I can also see why my view would be disapproved. As it could be argued that it is in the public interest to hold those who drug traffic to be held liable. As it would give the families of the victims a sense of justice and it would also deter drug trafficking because of the severity of the sentencing, in this case, liable for homicide.
Maxim actus non facit reum nisi mens sit rea means that the guilty act on its own will not make a person criminally liable unless it was done with a guilty state of mind. The majority of crimes are brought about by a mixture of actions and are referred to as the guilty acts these represent the physical elements of a crime (actus reus).The mental elements are the thoughts or guilty state of mind (mens rea).
If actus reus and mens rea are known and there is no valid defence, the defendant will be found guilty. It is the task of the prosecution to demonstrate together the actus reus and the mens rea of the offence beyond a reasonable doubt to the agreement of the judge and jury. If the proof is not found then the defendant will be acquitted.
The actus reus covers all the exterior elements of an offence and consists of conduct, circumstances, and consequences. These are divided into two categories: Conduct crimes and Result crimes
Conduct crimes consist of conduct and circumstance and are those in which the actus reus is concerned with prohibited behaviour in spite of its consequences, an example of this would be to drive when you have been disqualified.
Result crimes are those where the guilty act requires proof that the conduct caused the outlawed consequence, for example, the actus reus of criminal damage is that the property owned by another person is damaged, and another example is the act of killing someone or committing murder.
As result crimes are concerned with causing the consequences the prosecution must show that it was the defendant’s behaviour that caused the result or circumstances to occur, they have to provide a clear, unbroken causal link. Causation requires a two stage test:
Factual causation, the defendant’s act must be a sine qua non of the prohibited consequence. This simply means that the consequence would not have occurred without the defendant’s actions.
R v.White (1910) 2 KB 124(CA) this case deals with ‘but for’ test. The test establishes multiple factual causes of death.
Legal causation can be established by showing that defendant’s act was an operating and substantial cause of death. It may not be the sole or main cause but it must make a significant contribution.
R v. Cheshire (1991) 1WLR 844 (CA),
R v. Pagett (1983) 76 Cr App R 279 (CA).
R v. Smith (1959)
Legal causation also deals with fault, assigning blame, and responsibility. The defendant will be liable for the all foreseeable consequences or results of their actions.
R v. Roberts (1972) 56 Cr App R 95 (CA),
R v. Marjoram (1999) (CA).
There is no liability in criminal law for omissions unless that failure to act was whilst you are under a duty to act. The duty to act can arise in several ways:
Duty arising from statute for example s.170 (4) of the Road Traffic Act 1998 places a duty on the driver involved in an accident to report it to the police or provide details to of the other people involved.
Contractual duty, if someone fails to so something under a legally binding contract that they are contracted to do they may be criminally liable if any harm or injury occurs as a result of their failure to act. R v. Pittwood (1902) 19 TLR 37 (Assizes) concerned a duty to act, contract
Parental duty to act and a duty towards family members, this is a common law duty that members of a family owe to each other to care for each other’s welfare. R v. Gibbins and Proctor (1918) 13 Cr App Rep 134 concerning duty to care, R v. Harris and Harris (1993)
Reliance or voluntary assumption of care, R v. Stone and Dobson (1977) CA
Supervening fault or dangerous situation, this is where the defendant does nothing to avert a dangerous situation resulting from their conduct. R v. Miller (1983) 1 All ER 978 in relation to situation created by the defendant.
The mens rea deals with the guilty state of mind. There are two states of mind which either together or separately can form the necessary mens rea for a criminal offence. These are Intention and Recklessness.
Direct intention is where the defendant’s purpose is to cause death, mens rea of murder is the intention to kill or cause grievous bodily harm.
Indirect intent which is also known as oblique or foresight intent is where the unlawful consequence as a result of the defendant’s conduct is foreseen by the defendant as virtually certain although it’s not the defendant’s purpose. R v. Woollin (1999) 1 AC 82 (HL) oblique intention, virtual certainty.
Recklessness is where the defendant takes an unjustified and unreasonable risk.
There are two known types of recklessness, subjective and objective. The law tends to concentrate on subjective tests.
R v. G (2004) 1 AC 1034 (HL) subjective recklessness, criminal damage
R v.Cunningham (1957) 2 QB 396 (CA) subjective recklessness and interpretation of malicious. The Cunningham test applies to all offences other than criminal damage.
Coincidence of actus reus and mens rea
When the defendant commits the actus reus of an offence, for liability to occur it must be shown that they also had the correct mens rea at the time the actus reus was committed. The guilty act and guilty state of mind must coincide.
Problems have cropped up where the actus reus has been performed, then the mens rea comes into play, and also where the mens rea is present first and then the actus reus follows
In order to overcome these problems the courts have used several approaches in order to secure a conviction where the actus reus is complete prior to the mens rea being present, and with the mens rea occurring before the actus reus. The approaches that they have used are called continuing acts and a chain of events.
Continuing act is where the actus reus is committed over a period of time and the mens rea is present at some point during it commission.
Fagan v. Metropolitan Police Commissioner (1969)1 QB 439 (DC)
The defendant accidentally stopped his car on a policeman’s foot, (actus reus) when he realised this he didn’t take it off (mens rea).It was a continuous act as he had actus reus when he ran over his foot and this only stopped when the car was moved and then the mens rea when he refused to move it. The defendant was subsequently found guilty of assault.
R v. Kaitamaki (1985) AC 147
He penetrated the victim (actus reus) and when he realised she objected to the penetration he did not withdraw at which point mens rea was present. It was held that the actus reus of rape was a continuing act, and when he realised she objected he formed the mens rea the actus reus was still continuing and so there was coincidence. The defendant was found guilty of rape.
R v. Miller (1983) 2 AC 161 (HL)
The defendant fell asleep on a mattress in a house whilst smoking a cigarette. When he woke up he noticed that the mattress was smouldering he left it and decided to go to another part of the house. He made no attempt whatsoever to stop the damage and due to this the house caught on fire. The act which caused the (actus reus) dropping of the cigarette happened when the defendant was asleep and the (mens rea) recklessness, damage to property occurred when he awoke. It was held that the defendant’s failure to do anything about putting the fire out was the actus reus and this coincided with the appropriate mens rea.
Chain of events
This is the second approach that deals with the mens rea occurring before the actus reus. The defendant will be found to be criminally liable if the guilty act and guilty state of mind are present even if they do not coincide during the series of events.
R. v Church (1966) 1 QB 59 (CA)
The defendant took the victim to a van in order to have sex with her. The victim made fun of him so the defendant knocked her unconscious (mens rea). The defendant believed she was dead so he threw her into a river in order to get rid of the victim. The victim then died (actus rea). The defendants conduct was viewed as a series of acts designed to cause GBH or death. The actus reus and mens rea were present during the chain of events. The defendant was found guilty of manslaughter
R v. Thabo Mali (1954) PC (South Africa)
The defendants took the victim to a hut and beat him over the head intending to kill him. They believed they had killed him so they rolled him over a cliff. The victim did not die from the beating or being rolled of the cliff but died of exposure. It was held that the actus reus and mens rea was present throughout. The actus reus consisted of a series of acts and the mens rea was present at some time during the chain of events. They were found guilty of murder.
R v. Le Brun (1991) CA
The defendant knocked the victim (his wife) unconscious. Whilst he was moving her she knocked her head on the kerb and this fractured her skull. She later died of the injury. It was held that the original unlawful act and the act causing death (actus reus) and the (mens rea) were all part of the same chain of events. The defendant was found guilty of manslaughter.
My own example
I’m employed as a female plasterer on a building site. After finishing work one evening and on my way home I realised that I had left something behind, so I head back too the site. The site has never been secured properly and the workforces have been complaining about this for some time. Whilst back on site a stranger approaches me and threatens to cause me some harm. As he is coming towards me I deliver a powerful kick into his stomach which causes him to fall back and trip over an item on the floor. He bangs his head on the ground and I also use my hawk to batter him over the head several times to ensure he does not get up again in a hurry. There is a great deal of blood on the floor and he does not appear to be breathing. I feel that he may be dead. I drag his body too the back of the worksite and hide it amongst some very tall weeds. I go back to the area where the blood is, clean up, and then leave the site. This example illustrates how the actus reus and mens rea are all part of the same chain of events and were present throughout
Common assault does not involve physical contact. It is an offence under s39 of The Criminal Justice Act 1998.
The actus reus of common assault is when the defendant causes the victim to apprehend (expect) immediate unlawful violence. This can be carried out by conduct, deeds, menacing silence, words, or a failure to act.
R v. Ireland (1998) AC 147 (HL)
The defendant made several silent calls to the victims, these occurred during the evening. They eventually suffered from psychiatric illnesses (depression, stress, anxiety). The House of Lords decided that words can amount to an assault and that silence calls could be seen as communicating a threat. The defendant was found guilty of assault.
R v. Constanza (1997) 2 Cr App R 492(CA)
The defendant stalked the victim by following her home, turning up to her home address uninvited, writing offensive words on her front door, making several silent phone calls and sending her over 800 letters. The last letter was hand-delivered and this led to the defendant being found guilty of assault. The victim suffered psychiatric illness as a result of the defendant’s actions.
The mens rea of common assault is the intention to cause apprehension of immediate violence or subjective recklessness as to the assault.
Battery involves the use of physical force. The actus reus of battery is the infliction of force or violence, this includes slight touching.
The actus reus is made up of three elements which consist of direct and indirect physical contact, non-consensual and physical contact.
R. v Haystead (2000) 3 All ER 890 (DC) This case concerns indirect contact.
The defendant punched a mother holding her baby. The baby dropped and the defendant was convicted of battery on the baby.
Battery requires non-consensual touching, the victim can consent to contact (express) or contact is implied, day to day contact. Battery deals with minor physical contact resulting in minor injuries for example grazes, minor bruising, slight cuts, and black eyes.
Collins v Wilcox (1984) 1 WLR 1172 (DC) this case gave examples of implied consent, agreed back slapping, seizing a hand in friendship and jostling on the underground.
The mens rea of battery is exactly the same as assault, intention to make physical contact or subjective recklessness as to such contact.
Unlawful malicious wounding or causing grievous bodily harm with intent is the most serious of all the non-fatal offences and is found in s18 OAPA 1861. Section 18 covers GBH by omission.
The actus reus is that the defendant must have unlawfully wounded a person or caused grievous bodily harm. It involves deep repeated cuts, minor cuts, bones penetrating the skin. Serious injury includes mental injury and most recently the transmission of diseases.
R v. Ireland, Burstow (1998) AC 147 (HL)
As in Ireland above. Both defendants stalked the victims with unwanted attention for over 3 years. The victims suffered from psychiatric injuries as a result of the ongoing acts. The house of lords in both cases concluded that harm to a person’s mind that amounted to a recognised medical condition would fall under the category of ‘bodily harm’.
R v Dica (2004) QB 1257 (CA)
The defendant who was HIV positive had unprotected sex with several women. The defendant was fully aware that he was infected but he did not inform the victims of his condition. The court of appeal accepted that a person could be liable for recklessly infecting another person with HIV.
The mens rea of GBH with intent is that the defendant must have intention to wound or cause GBH. Recklessness as to causing GBH or wounding (malice) and intention to resist or prevent arrest.
Strict Liability offences are those in which the defendant may not have intended or known about the consequences of their actions or the circumstances. The defendant does not need to have a guilty state of mind in relation to all parts of the actus reus (guilty act). Strict liability cases make up half the cases appearing before the courts.
Defences for strict liability are those that are applicable to actus reus.Â Defences that are probably relevant to actus reus include automatism and duress and also foreseeability is quite important as well.
Strict liability offences are mainly created by statute and regarded as ‘regulatory offences’ and ‘public safety/public interest offences’. The offences that are covered are quite extensive and include parking offences, road traffic offences, health and safety, dangerous drugs, dangerous weapons, sexual offences, environmental pollution, possession and the control of dangerous and non-dangerous animals.
Sweet v Parsley (1970) HL This case is an important case on strict liability where the need for mens rea in most criminal cases was spelt out and where it was suitable for the presumption for mens rea to be dispensed with.
Harrow LBC v. Shah (2000) 1 WLR 83 (DC) The defendant was found guilty of selling a lottery ticket to a young person under the age of 16. The defendant was unaware of the person’s age when selling the ticket.
R v Marriot (1971) the defendant was found guilty after police searched his home and found a tiny amount of cannabis on a knife. His defence told the court that he had not been aware of what the substance on the blade was, he appealed against the decision and was still convicted. It was held that the accused was guilty if he knew that there was a substance on his knife even if he did not know what the substance was.
R v Deyemi (2007) CA the defendants were caught with a stun gun, which they believed to be a torch. It was held that the prosecution only had to prove that they possessed the stun gun, and the stun gun was forbidden by the act. The prosecution did not have to prove that the defendants knew that it was an illegal weapon
Alphacell v Woodward (1972) HL the defendants were charged with causing pollution to a river. The pollution occurred as a result of a pipe becoming blocked from their factory and the waste product entered a nearby river.
FJH Wrothwell v Yorkshire Water Co. (1984), the defendant who was the director of the companyÂ carelessly poured 12 gallons of herbicide into drains. These drains led into a river.
Smedleys v Breed (1974) AC 839 A big manufacturer of tinned peas was convicted under the Food and Drugs Act (1955) (now Food and Safety Act 1990) when some tins were found to contain a caterpillars
The arguments in favour of strict liability are:
They help to prevent environmental pollution
People may be prevented from owning unlawful weapons and drugs
The public is protected against unsafe structures
Helps to encourage people to really improve standards so they will not be prosecuted for committing a criminal offence