unlocking causation

8/20/2019 Unlocking Causation

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Actus Reus and Causation (Summary)

The Latin phrase 'actus reus’ or “Conduct” is used as a convenient shorthand fordescribing all the physical elements that go to make up different criminal offences.

The physical element

The majority of criminal offences considered in this textbook require as a starting point

some physical element on the part of the defendant (D). recisely !hat that physical

element is depends on the criminal offence.

To give some examples"

# $urder and manslaughter require% in most cases% that D does an act !hich causes thedeath of the victim (&)

# 'attery requires that D applies unla!ful force to the body of the victim. The crime of

malicious !ounding requires that D does some act !hich cuts the skin of the victim

# Theft requires that D appropriates property !hich belongs to another person

onduct and consequences

*ou !ill see that die physical element in murder actually sub+divides into t!o elements"

an act (conduct) and death (consequence).

The act part could be% for example% aiming a gun at & and pulling the trigger, stabbing

& !ith a knife, strangling & !ith a piece of cord, pushing & from the top of a tall building.

The consequence that must follo! from Ds act% namely the death of &% is also part of

the physical element.

-n most cases death follo!s fairly s!iftly after Ds act but% in some cases% there may be a

delay of minutes% hours% days or even longer. as D caused &s death if he strangles her%

leaving her in a coma as a result of hypoxia (loss of oxygen to the brain) from !hich she

eventually dies six months later/ -t is impossible to give a definite ans!er to this

question, it is a question of fact for a jury.o!ever% there are a number of legal principles !hich exist to help a jury in such cases

and these !ill be examined belo!.

0ith malicious !ounding% the conduct and consequence could be regarded as

inseparable" the act of stabbing or slashing at & !ith a knife% broken bottle% etc

(conduct) must cause &s skin to be cut (consequence).

-n battery% the physical element requires conduct (applying force to &s body) but there

is no consequence requirement..

Theft is another example" there is a conduct element (D must appropriate% !hich means

to assume rights over% property) but there is no consequence requirement.

Circumstances

1ome criminal offences require certain circumstances to exist in addition to the conduct2

consequence elements.


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3ne of the physical elements required in rape is that & must not have consented. This is

a circumstance that must exist at the time D penetrates &s vagina% anus or mouth% and

!ithout it there is no crime. 1imilarly% in theft% in addition to the conduct element of

appropriating% there must be property that belonged to another at the time of the

appropriation. D% a vagrant% might assume rights of o!nership over an old% !orn+out

shoe that he finds lying in the street% but this !ould probably not be enough to satisfy allthe physical elements in the crime of theft% as it is likely that the shoe has been

abandoned and hence is o!nerless.

The physical element alone is not a crime

Look again at the conduct elements of the crimes above.

-n none of the cases does it automatically follo! that D has committed a crime.

-n most rape cases% the conduct element is penetration of &s vagina or anus by Ds

penis% !hich are% generally speaking% perfectly la!ful activities (subject to & having

attained the age of consent% !hich in 4ngland is 56 (1exual 3ffences (7mendment) 7ct

8999)).

-n theft% the conduct element is appropriating property% an act !hich does not imply any

!rongdoing. -f you are reading this book !hilst sitting at a desk in a library% you are

appropriating the seat and the desk because you are assuming rights of o!nership over

them (albeit temporarily). 0hat prevents this performance of the physical element from

amounting to a criminal offence is% in some cases% the lack of other physical elements.

Thus% for D to use his penis to penetrate &s vagina% anus or mouth is% generally

speaking% not the crime of rape% because & consents. -n other cases% all the physical

elements (!hether conduct% consequences and circumstances) may be present% but still

the crime may not be committed because the mental element of the crime is missing.

Thus% in order to commit theft% it is necessary that D has the intention to permanentlydeprive the o!ner of their property and that D !as dishonest. 1omeone sitting

innocently at a library desk does not have either the requisite intent nor the dishonesty.

There are exceptions to this rule% ho!ever. 1ome criminal offences may be committed

!ith no% or a very little% mental element.

These crimes are kno!n as absolute or strict liability offences% and !ill be examined

later on in the module

Causation

1. Consider whether the "chain of causation" would be broken in the following

example:

V had been taken to hospital having been poisoned by D, his wie. !t the hospital V

is treated by Dr "oung, an ine#perienced doctor who is also very tired having spent

the previous $% hours on duty. Dr "oung prescribes an antidote or the poison but,

in his tired and conused state, tells the nurse to ad&inister a dose 1 ti&es stronger

than re(uired. V suers a &assive heart attack and dies.

0hen D is charged !ith any result crime% the ro!n must prove that his acts or

omissions caused the prohibited consequence.

:or example% in murder or manslaughter it is necessary to prove that D% by his or her

acts or omission (see next !eek;s materials) % caused &s death.

-f & dies because of some other cause% then the offence has not been committed even

though all the other elements of the offence% including the &ens rea, are present. D may

of course be liable for attempt instead )*hite 8 ?' 58@, see belo! and see


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hapter 6 for discussion of attempts).

1imilarly% if D is charged !ith causing grievous bodily harm !ith intent% contrary to s

5A of the 3ffences 7gainst the erson 7ct (377) 5A65% the ro!n must prove that

Ds acts or omissions caused & to suffer serious injuries. The issue of causation is for

the jury to decide. The judge should direct them as to the elements of causation% but it is

for them to decide if the causal link bet!een Ds act and the prohibited consequence has been established.

Bsually it !ill be sufficient to direct the jury )per Cobert off LE in +agett

rim LC F=F)" simply that in la! the accuseds act need not be the sole cause% or even

the main cause% of the victims death% it being enough that his act contributed

significantly to that result. 0hen a problem arises% as occasionally happens% then it is

for the judge to direct the jury in accordance !ith the legal principles !hich they have

to apply.

There are t!o main principles"

# the jury must be satisfied that Ds conduct !as a factual cause of &s death or injuries# the jury must also be satisfied that Ds conduct !as a legal cause of &s death or

injuries.

Factual causation

This is determined using the but for test, that is% it must be established that the

consequence !ould not have occurred as and !hen it did but or Ds conduct. -f the

consequence !ould have happened any!ay% there is no liability.

The leading example of this is *hite 8 ?' 58@.

D put potassium cyanide into his mothers drink. e had direct intent to kill% in order

to gain under her !ill. Later & !as found dead% sitting on the sofa at her home.7lthough she had drunk as much as a quarter of the poisoned drink% medical

evidence established that she had died of a heart attack% not poisoning. -n any event

D had not used enough cyanide for a fatal dose.

D !as acquitted of murder" he had not caused her death. (e !as% ho!ever%

convicted of attempted murder.)

:actual causation on its o!n is insufficient for liability.

To give one !ell+kno!n example% if D invites & to his house for a party and% on the !ay

there% & is accidentally run over and killed% D !ould not face prosecution for any formof homicide. 7lthough D has caused &s death as a matter of fact% there is no actus reus

of either murder or manslaughter.

The missing element is legal causation.

Legal causation

:actual causation alone is not enough.

-t is essential that legal causation is established as !ell. This is again a question for the

jury" the question is !hether the consequence (death% serious injury% as the case may be)

can fairly be said to be Ds fault.

-n an early case% Dalloway (5A@G) 8 ox 8GF% D !as acquitted because% although &s

death !ould not have occurred but for Ds driving a horse and cart over him% the jury

!as not convinced that D !as to blame.


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714 4H7$L4

Dalloway (18!) " Co# CC "!$

D !as driving a horse and cart !ithout holding the reins% !hich !ere lying loose on

the horses back. 7 child% &% ran in front of the cart% !as struck by one of the !heels

and killed. D !as charged !ith manslaughter but the jury acquitted. -t appeared fromthe evidence that% even if D had been holding the reins% he could not have stopped

the cart in time.

ence the death !as not Ds fault.

This principle !as seen in Marchant and Muntz %"&&$' 407 rim 89==, 5

0LC @@8% a case of causing death by dangerous driving.

&% a motorcyclist% impaled himself on a metre+long spike (called a tine) attached to thefront of an agricultural vehicle being driven on a public road. There !as no suggestion

that Ds driving !as dangerous, rather% the allegation !as that simply having the vehicle

on the road at all !as dangerous. 7lthough D !as convicted% the ourt of 7ppeal

quashed the conviction.

4xpert evidence at trial indicated that the spike could have been Icovered by some sort

of guard% but rigson E concluded that even had such a guard been in place% it !ould

not have prevented the collision.

The consequences to anyone striking a tine or the guard at speed !ould have been very

severe% if not fatal (emphasis added). -n other !ords% D had not caused &s death.

inimal causes may e discounted

-f Ds act or omission provides only a minimal contribution to &s death or injuries% then

it may be discounted under the de &ini&is principle (the la! ignores trivialities).

erkins and 'oyce in Cri&inal aw (Frd edn% 5=A8) give the follo!ing example% !here

& has suffered t!o stab !ounds from different defendants"

1uppose one !ound severed the jugular vein !hereas the other barely broke the

skin of the hand% and as the life blood gushed from the victims neck one drop ooJedfrom the bruise on his finger . . . metaphysicians !ill conclude that the extra drop of

blood hastened the end by the infinitesimal fraction of a second. 'ut the la! . . . !ill

conclude that death be imputed only to the severe injury in such an extreme case as

this.

-t is sometimes said that Ds act must be a substantial cause of death, this probably

states the case too favourably for D. 0hat is required is that Ds act provides something

more than minimal contribution.

Thus% in imsey %1**+> rim LC FK% a case of causing death by dangerous driving% the

trial judge told the jury that they did not have to be sure that Ds driving !as the

principal% or a substantial cause of the death% as long as you are sure that it !as a cause

and that there !as something more than a slight or trifling link.


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3n appeal% it !as argued that it !as !rong to say that Ds driving did not have to be a

substantial cause. The ourt of 7ppeal dismissed the appeal, reference to substantial

cause !as not necessary and moreover might encourage the jury to attach too much

importance to Ds driving. Ceference to more than a slight or trifling link !as

permissible and a useful !ay of avoiding the term l de &ini&is .

ultiple causes

Ds act or omission need not% therefore% be the sole or even the main cause of &s death

or injuries. -t is sufficient that Ds act or omission provides a more than minimal cause.

3ther contributory causes may be the acts of others% or even of & themselves.

Actions of third parties

The early case of -enge (5A6K) @ : : K9@ provides a good example.

D% the foreman of a track+laying cre!% misread the rail!ay timetable% so that the track

!as up at the time the train !as due. e realised his error% and placed a signalman !ith

a flag K@9 yards up the line% although statutory regulations specified a distance of atleast 5%999 yards. o!ever% the train driver !as not keeping proper lookout and failed

to stop. 1everal deaths !ere caused.

Thus% the deaths !ere a combination of"

# Ds misreading of the train timetable

# the signalmans failure to stand @69 yards further up the line

# the train drivers failure to keep a proper lookout.

Mevertheless% the jury !ere directed to convict D if they !ere satisfied that his conduct

mainly or substantially caused the deaths (they !ere so satisfied% and D !as convicted).

7 slightly different approach is required in cases !here Ds act or omission triggerssome further act y a third party% and it is the latter act or omission !hich is the

immediate cause of death.

D is clearly a factual cause of death% but to !hat extent can D also be regarded as the

legal cause/

The leading case is !agett !here off LE said that% !here the third partys act is a

reasonable response to Ds initial act% the chain !ill not be broken. D did not escape

liability !here a third party% forced into reasonable self+defence by D% inadvertently

caused &s death.

714 4H7$L4

!agett %1*8$' Crim LR $*$

1everal police officers !ere trying to arrest D for various serious offences. e !as

hiding in his first+floor flat !ith his 56+year+old girlfriend% &% !ho !as pregnant by

him. D armed himself !ith a shotgun and% against her !ill% used &s body as a

shield. e fired at t!o officers% !ho returned fire, three bullets fired by the officers

hit &. 1he died from the !ounds. D !as convicted of manslaughter, his appeal !as

dismissed.

-t is crucial that the question of causation is left to the jury to decide.


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-f it is not% convictions may be quashed.

7 good example is #atson %1*8*' 8 7ll 4C A6K D !as convicted of manslaughter on the

basis that his act of burgling &s home had triggered a fatal heart attack =9 minutes later.

o!ever% Ds conviction !as quashed on the ground of causation" the heart attack mayhave been caused by the arrival of the police or council !orkmen to board up the

!indo!. There is no! a considerable body of case la! on the application of these

principles to cases !here the third parties are medical personnel dealing !ith injuries

inflicted by D. These cases raise special considerations of public policy and !ill be dealt

!ith separately belo!.

Actions of the ,ictim- fright or flight

-n some cases% & brings about his o!n death or injuries through attempting to escape

from a threat (!hether real or imagined) posed by D.

o!ever% D may remain responsible for those outcomes. The courts have devised a test!hich involves establishing a chain of causation bet!een Ds original act or omission

and &s ultimate death or injury.

• -f &s actions in trying to escape from a threat posed by D are regarded by the

jury as daft (or unexpected or unreasonable) then the chain is broken and D

escapes liability.

• -f &s actions are not regarded as daft then D remains liable.

The question of daftness% !hich is one for the jury to ans!er% is particularly important

in cases !here D contends that & has misinterpreted his act or omission and (possibly in

a state or confusion and2or panic) has overreacted. Mar$oram %"&&&' rim LC FG8

provides a recent example.

714 4H7$L4

Mar$oram %"&&&' Crim LR $!"

D% !ho had been shouting abuse and kicking &s hostel room door% forced open the

door% at !hich point & fell% or possibly jumped% from the !indo!. & sustained serious

injury in the fall.

D maintained that he had broken do!n the door because he had heard the !indo! being

opened and had intended to rescue & from !hat he thought !as a suicide bid.

Mevertheless% D !as convicted of inflicting grievous bodily harm% contrary to s 89

377 5A65.

The ourt of 7ppeal dismissed Ds appeal. The jury !ere entitled to find that &s

reaction to having D forcing open their door !as not daft.

1imilarly% in Corbett %1**+' rim LC K=@% the ourt of 7ppeal rejected Ds appeal that

& had overreacted and upheld his manslaughter conviction.

D had punched and head+butted &% !ho had run off% tripped and fallen into the path of

a passing car. D argued on appeal that it should have to be proved that !hat happened

!as the natural consequence of Ds act.


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The ourt of 7ppeal% ho!ever% confirmed that the jury had been properly directed that

only by a daft reaction by & !as capable of breaking the chain.

The criterion of &s reaction being daft stems from oberts rim LC 8@8% in

!hich D !as convicted of assault occasioning actual bodily harm (contrary to s @G377 5A65) after the girl passenger in his car jumped out after he allegedly had tried

to remove her coat.

e appealed on the ground that causation had not been established.

The ourt of 7ppeal dismissed the appeal. 1tephenson LE said"

The test is" !as the natural result of !hat said and did% in the sensethat it !as something that could reasonably have been foreseen as the consequence of

!hat !as saying or doing/ . . . -f of course does something so NdaftN ... or so

unexpected . . . that no reasonable man could be expected to foresee it% then it is only in

a very remote and unreal sense a consequence of assault% it is really occasioned by

a voluntary act on the part of !hich could not reasonably be foreseen and !hich

breaks the chain of causation bet!een the assault and harm or injury,

-f the jury agrees that &s reaction !as daft and the chain of causation broken% it is

common to refer to this reaction using the latin term 'novus actus interveniens%

literally ne! intervening act.

Thus% in the !ords of 1tuart+1mith LE in #illiams and Da%is %1**"' 8 7ll 4C 5AF"

conduct be something that a reasonable and responsible man in Ds shoes !ould

have foreseen . . . The nature of the threat is of importance in considering . . . the

question !hether &s conduct !as proportionate to the threat% that is to say that it !as

!ithin the ambit of reasonableness and not so daft as to make it his o!n voluntary act

!hich amounted to a novus actus interveniens and consequently broke the chain of

causation.

714 4H7$L4

#illiams and Da%is %1**"' " All R 18$

D and 4 had given a lift to a hitchhiker% &. 7fter some five miles% & opened a rear door

and jumped out to his death. The ro!n alleged that & had leaped out to escape being

robbed. The defendants !ere convicted of robbery and manslaughter.

The ourt of 7ppeal quashed the latter convictions because of a lack of any direction on

the question of causation.

The jury should have been asked !hether &s reaction in jumping from the moving car!as !ithin the range of responses !hich might be expected from a victim placed in the

situation in !hich & !as. The jury should also have been told to bear in mind the fact

that in the agony of the moment he may act !ithout thought and deliberation.


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The accused must ta/e the ,ictim as they find them

D cannot complain if & is particularly susceptible to physical injury% eg haemophilia

causing death% or brittle bones leading to !orse injuries.

-n Martin (18$") K 58A% arke E said" -t is said that !as in a bad state of

health, but that is perfectly immaterial% as% if !as so unfortunate as to accelerate her

death% he must ans!er for it.

-t !as accepted in &owers (18!) 58 ox 6=8 that% because children are particularly

susceptible to fright and shock% D may frighten a child to death. D violently assaulted a

young girl !ho !as holding &% a four+month+old baby% in her arms. The girl screamed%

frightening & so much that it cried until its face turned black. & died a month later and

D !as convicted of manslaughter.

The implication of this ruling !as that it !ould not be possible to frighten an adult to

death.

o!ever% this implication !as rejected in /ayward (5=9A) 85 ox 6=8.

714 4H7$L4

'ayward (1*&8) "1 Co# CC +*"

D% in a state of violent excitement% !as heard to say that he !as going to give his !ife

something !hen she returned home. 0hen she did so% an argument ensued and D

chased her from the house using violent threats. 1he collapsed in the road and died.

$edical evidence !as such that she !as suffering from an abnormal condition that

might be exacerbated by any combination of physical exertion !ith strong emotion or

fright. The trial judge directed the jury that proof of death from fright alone% caused by

some illegal conduct such as the threats of violence% !ould suffice.

The principle that D must take their victim as they find them is not confined to pre+

existing physical or physiological conditions.

-n (laue %1*!0' F 7ll 4C @@6% it !as extended to religious beliefs. La!ton LE said"

-t has long been the policy of the la! that those !ho use violence on other people must

take their victim as they find them. This in our judgment means the !hole man% not just

the physical man. -t does not lie on the mouth of the assailant to say that the victims

religious beliefs !hich inhibited him from accepting certain kinds of treatment !ereunreasonable.

The question for decision is !hat caused her death.

The ans!er is the stab !ound. The fact that the victim refused to stop this end coming

about did not break the causal connection bet!een the act and death.

714 4H7$L4

(laue %1*!0' $ All R +

D had approached his female victim% &% and asked for sex. 0hen she refused he


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produced a knife and stabbed her four times% one !ound penetrating a lung. 1he !as

admitted to hospital and told that a blood transfusion !as necessary to save her life. 7s

she !as a Eehovahs 0itness (to !hom blood transfusions are regarded as contrary to the

teachings of the 'ible)% she refused and died !ithin a fe! hours of internal bleeding.

$edical evidence indicated she !ould have survived had she accepted the transfusion.D !as charged !ith murder% but !as convicted of manslaughter (the jury having

accepted his plea of diminished responsibility"). 3n appeal against that conviction% he

argued that her refusal !as unreasonable and broke the chain of causation. This !as

rejected.

uestion

1uppose & had been stabbed in a remote place and had died before medical assistance

could reach her. Then Ds liability !ould certainly have been manslaughter. 0hy should

D be allo!ed to escape a manslaughter conviction on the ground that & declined

medical assistance/

Self2neglect

-f & mistreats or neglects to treat his injuries% this !ill not break the chain of causation.

-n a very early case% #all (18&") 8A 1tate Tr K5% D% the governor of a 'ritish colony !as

convicted of the murder of &% a soldier !hom he had sentenced to an illegal flogging of

A99 lashes% even though & had aggravated the injuries by drinking spirits in hospital.

$acDonald L' said that D !as not at liberty to put another into such perilous

circumstances as these% and to make it depend upon o!n prudence% kno!ledge%

skill or experience% !hether he escaped liability or not.

-n a slightly later example% 'olland (181) 8 $ood C FK5% D cut & on the finger !ith

a piece of metal. The !ound became infected% but & ignored medical advice that he

should have the finger amputated or risk death. The !ound caused lockja!% and

although the finger !as then amputated% & died.

The trial judge directed the jury that it made no difference !hether the !ound !as

instantly mortal% or became so by reason of & not seeking medical help. The jury

convicted.

7lthough medical science has advanced hugely since the early nineteenth century% it is

still no ans!er to a homicide charge that & refuses treatment. D must accept that & may

be irrational% stupid or afraid of hospitals.

/olland !as in fact follo!ed in -laue in the 5=G9s and the principles can be seen in use

in the most recent case% Dear %1**+' rim LC K=K.


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714 4H7$L4 O++++++++++++++++++++++++++++++++++++++++O++++++++++++++++++++++++++++++++++++++++++

Dear %1**+' Crim LR 0*0

D had slashed at & several times !ith a 1tanley knife% severing an artery. & died from

blood loss t!o days later. 7t his trial for murder% D pleaded provocation% claiming that

he had only just discovered that & had been sexually interfering !ith his (Ds) 58+year+old daughter. (rovocation/)

7n alternative defence !as that the chain of causation had been broken in that & had

committed suicide by either (a) deliberately reopening the !ounds% or (b) the !ounds

having reopened themselves% from failing to take steps to staunch the blood flo!. The

judge directed the jury that they !ere entitled to find D guilty of murder if &s !ounds

remained an operating and substantial cause of death.

The jury convicted.

edical treatment

7 number of cases have arisen !here doctors have been accused of causing death.

The cases divide into t!o types"

5. 0here doctors are treating patients !ith naturally occurring diseases% and

administer drugs to alleviate pain (palliative care). -f a side+effect of this

treatment is to accelerate death% should the doctor face liability for homicide

(murder or manslaughter% depending on the doctors &ens rea0.

8. 0here doctors are treating patients !ho have been rushed in for emergency

surgery having (typically) been stabbed or shot by D. The treatment is imperfectand the patient dies.

1hould (a) the doctor face liability for the death, (b) the doctors mistreatment relieve D

of liability for the death/

3here doctors are pro,iding patients 4ith palliati,e care

)dams %1*0!> rim LC F6K !as a case involving a doctor !ho% in treating a terminally

ill patient% may have contributed to her death through the administration of drugs. 3n

trial for murder% the trial judge directed the jury that it did not matter that the victims

death !as inevitable% nor that her days !ere numbered. e said% -f her life !ere cut

short by !eeks or months it !as just as much murder as if it !as cut short by years.

o!ever% he !ent on to say"

That did not mean that a doctor !ho !as aiding the sick and dying had to calculate in

minutes% or even in hours% and perhaps not in days or !eeks% the effect upon a patients

life of the medicines !hich he administers or else be in peril of a charge of murder. -f

the first purpose of medicine% the restoration of health% can no longer be achieved there

is still much for a doctor to do% and he is entitled to do all that is proper and necessary to

relieve pain and suffering% even if the measures he takes may incidentally shorten life. . .

.

3here doctors pro,ide medical mistreatment

T!o question !ere posed above.


11/15

The first question% is !hether doctors !ho inadvertently (as opposed to deliberately)

mistreat patients during surgery resulting in death may themselves face liability for

homicide% % specifically the section on gross negligence manslaughter (see in particular

the case )domako*.

The ans!er to the second question% !hether medical mistreatment provided to the

victims of gunshots or stab !ounds may relieve the original perpetrator of liability% is%generally speaking% no.

-n +mith ,&homas* %1*0*' 8 P' FK% Lord arker E said"

-f at the time of death the original !ound is still an operating cause and a substantial

cause% then the death can properly be said to be the result of the !ound% albeit that some

other cause of death is also operating. 3nly if it can be said that the original !ounding is

merely the setting in !hich another cause operates can it be said that the death did not

result from the !ound. utting it another !ay% only if the second cause is so

over!helming as to make the original !ound merely part of the history can it be said

that the death does not flo! from the !ound.

714 4H7$L4

+mith ,&homas* %1*0*' " 5 $0

D !as a 'ritish soldier. During the course of a barrack+room fight he stabbed &% another

soldier% t!ice !ith a bayonet. 3ne of the !ounds had pierced a lung. & eventually died of

a haemorrhage (internal bleeding) but% before his death% the follo!ing had occurred"

(a) another soldier carried & to the medical station and dropped him + t!ice,

(b) the medics% !ho !ere under pressure% failed to realise that & had suffered serious

injuries because D had been stabbed in the back,

(c) the medics gave him treatment !hich% in the light of this% !as described as thoroughly

bad and might !ell have affected chances of recovery. D !as convicted of murder

at a court+martial% and the ourt+$artial 7ppeal ourt dismissed his appeal.

-n Cheshire %1**1' F 7ll 4C 6G9% 'eldam LE proposed a ne! test% asking not !hether

the !ound !as still operating but rather !hether Ds act or omission could still be said

to have contributed significantly to &s death. 7pproaching the same question from the

opposite direction% he indicated that only if the medical treatment could be classed asindependent of Ds original act% !ould D escape liability.

This ne! test is very important as it allo!s the jury to impose liability on D even in

cases !here & survives% perhaps on a life+support machine% for a long enough time after

the original assault such that the gun shot !ounds or stab !ounds have healed.

'eldam LE said"

need not be the sole cause or even the main cause of death% it being sufficient that

his acts contributed significantly to that result.


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4ven though negligence in the treatment of !as the immediate cause of his death%

the jury should not regard it as excluding the responsibility of unless the negligent

treatment !as so independent of acts% and in itself so potent in causing death% that

they regard the contribution made by acts as insignificant.

'eldam LE also suggested that it !as only in the most extraordinary and unusual casethat medical treatment !ould break the chain of causation. e said that Treatment

!hich falls short of the standard expected of the competent medical practitioner is

unfortunately only too frequent in human experience for it to be considered abnormal in

the sense of extraordinary.

714 4H7$L4

Cheshire %1**1' $ All R +!&

3n =th December% D and & got into an argument !hich culminated in D shooting &

t!ice !ith a handgun% in the thigh and stomach. The second !ound !as the moreserious and required an extensive bo!el resection in hospital. Cespiratory problems then

ensued% necessitating a tracheotomy. 'y Ath :ebruary% ho!ever% & !as recovering%

although he began to complain of breathing difficulties. &arious doctors !ho sa! him

around this time thought that his respiratory problems !ere caused by anxiety. -n fact

his condition deteriorated rapidly on the night of 5@th :ebruary and he died of cardio+

respiratory arrest% as a result of his !indpipe becoming narro! and eventually

obstructed, a rare but not unkno!n side+effect of the tracheotomy.

'y this time% the gunshot injuries had healed to the point !here they !ere no longer life+

threatening. D !as convicted of murder% and the ourt of 7ppeal upheld the conviction.

'eldam LEs test in Cheshire has been follo!ed since.

-n Mellor %1**+> 8 r 7pp C 8@K% &% a G5+year+old man% !as attacked by a gang

including D. & !as taken to hospital suffering facial bruising and complaining of chest

pain and a pain in his right shoulder. e died in hospital t!o days later. D tried to avoid

liability by claiming the hospital failed to give & sufficient oxygen in time% as a result of

!hich & had developed bronchopneumonia (the medical cause of death).

o!ever% the ourt of 7ppeal upheld Ds conviction of manslaughter. 1chiemann LE

noted that% !here the victim of a violent assault does not die immediately% supervening

events are quite likely to occur !hich may have some causative effect leading to the

victims death. e listed some examples" a delay in the arrival of the ambulance, a delay

in resuscitation, &s reaction to medical or surgical treatment, the quality of medical%

surgical and nursing care.

-n all cases% ho!ever% 1chiemann LE said that it !as a question for the jury to decide%

bearing in mind the gravity of the supervening event% !hether the injuries inflicted bythe defendant remained a significant cause of death.


13/15

-t should be pointed out that the operating and substantial factor test% first devised in

&ith in the 5=K9s% has never been overruled% so it !ould not be a misdirection for a

judge in an appropriate case to refer to it.

-ndeed in Malcherek +teel %1*81' 8 7ll 4C @88% the ourt of 7ppeal used the same!ords.

o!ever% it seems that% follo!ing the more recent Cheshire and 2ellor, trial judges

today are more likely to ask juries to consider !hether the original injuries inflicted by

D have made a significant contribution to &s death.

-n #arburton - 'ubbersty %"&&+> 407 rim 68G% the ourt of 7ppeal confirmed

that the la! as stated in Cheshire and 2ellor !as correct% namely did the acts for !hich

the defendant is responsible significantly contribute to the victims death/

The cases above all emphasise that it is ultimately a question for the jury to decide. They

allo! for the possibility that medical mistreatment could be so extreme as to relieve D

from liability for &s death.

3n ordan (1*0+) @9 r 7pp C 5K8% this possibility duly occurred.

The case remains unique% but that is not to imply that it is !rongly decided. 4very rule

has an exception and% if the rule is that generally speaking hospital mistreatment does

not absolve D of liability% this is the exception to it.

-ndeed% in -laue, La!ton LE distinguished 4ordan on the ground that it !as a case

decided on its o!n special facts and in 2alcherek, teel, !hich !ill be discussed belo!%the ourt of 7ppeal described 4ordan as a very exceptional case. *ou !ill note that

neither court stated that 4ordan !as !rongly decided.

714 4H7$L4

ordan (1*0+) & Cr App R 10"

D had stabbed & !ith a knife% the !ound penetrating the intestine in t!o places. & !as

rushed to hospital !here the !ound !as stitched. 4ight days later% ho!ever% he died% and

D !as convicted of murder. 3n appeal% fresh evidence !as adduced !hich sho!ed that%

at the time of &s death% the !ound had mainly healed. Doctors had given & a drug calledterramycin to prevent infection% but he had sho!n intolerance to a previous injection.

Defence experts described this treatment as palpably !rong. :urthermore% large

quantities of liquid had been administered intravenously% !hich had caused &s lungs to

become !aterlogged. This !as also described as !rong by the defence doctors. 7s a

result of the !aterlogging% & developed pulmonary oedema !hich led inevitably to

bronchopneumonia% !hich !as the medical cause of death.

The ourt of riminal 7ppeal quashed Ds conviction" if the jury had heard this evidence%

they !ould have felt precluded from saying that they !ere satisfied that death !as

caused by the stab !ound.

Life support machines

7 particular problem concerns victims of violence !ho have been placed on life+support

machines. -f there is no prospect of recovery% and the doctors s!itch off the machinery%


14/15

ho! (if at all) does this affect Ds responsibility/

-n 2alcherek, teel, it !as argued on appeal that in just such a case it !as the doctors

!ho had caused death.

The ourt of 7ppeal rejected the argument% describing it as biJarre. Lord Lane E said"

0here a medical practitioner adopting methods !hich are generally accepted comes

bona ide to the conclusion that the patient is for practical purposes dead% and that such

vital functions as exist + for example% circulation + are being maintained solely by

mechanical means% and therefore discontinues treatment% that does not prevent the

person !ho inflicted the initial injury from being responsible.

714 4H7$L4

Malcherek %1*81' " All R ""

3n 86th $arch% $alcherek stabbed his estranged !ife% % nine times. 1he !as admitted

to hospital% !here over 1 5 litres of blood !ere removed from her abdominal cavity.

1he seemed to be recovering% but on 5st 7pril she suffered a pulmonary embolism. er

condition deteriorated% and her heart stopped. During open+heart surgery a massive

blood clot !as removed% at !hich point her heart restarted. o!ever% F9 minutes had

elapsed and severe brain damage had been caused% from !hich she never recovered. The

doctors carried out five of the six tests recommended by the Coyal ollege for

establishing brain death (omitting the gag reflex test)% and on the strength of this

s!itched off the life support. 1he !as certified dead on Kth 7pril.

714 4H7$L4

Steel %1*81'" All R""

3n 59th 3ctober% 1teel attacked 0% a random stranger% in the street. e battered her

about the head !ith a large stone% causing severe head injuries% and left her for dead. 1he

!as rushed to hospital and placed on life support immediately. o!ever% she never

recovered consciousness% and the system !as !ithdra!n t!o days later after four of the

six Coyal ollege tests proved negative (the corneal reflex + !here the eyeball is

touched !ith cotton !ool + and the vestibulo+ocular + !here ice+cold !ater is dripped

into the ear + tests !ere omitted). 1he !as certified dead on 58th 3ctober.

Thus% both victims had life+support equipment s!itched off after some% but not all% of

the Coyal ollege tests indicated brain death.

0ith the equipment s!itched off% the victims ceased breathing% their hearts stopped and

conventional death% that is% cessation of heartbeat% occurred.

$alcherek and 1teel !ere both convicted of murder% at 0inchester and Leeds ro!n

ourts respectively. The ourt of 7ppeal% !hich heard both cases together% rejected both

appeals.

The same principles apply if & is not brain dead but is in a persistent vegetative state(&1).

-n )iredale /'+ &rust % (land (1**$) (discussed above)% Lord off said that in

discontinuing treatment a doctor !as simply allo!ing the patient to die in the sense that


15/15

he desisting from taking a step !hich might prevent his patient from dying as a

result of his pre+existing condition.

unlocking causation

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