CAUSATION
Necessary for RESULT CRIMES (those that require a result to be satisifed)
Two types of causation: FACTUAL and LEGAL.
FACTUAL CAUSATION - D must be responsible for the consequence IN FACT
- TEST: “but for” test (R v White)
- – “but for” D’s acts/omissions would the consequence have occurred in the SAME WAY as it did?
- – if NO, D is responsible IN FACT
LEGAL CAUSATION
GR: D act must be the OPERATING AND SUBSTANTIAL cause of the consequence (R v Smith)
Substantial
- There must be a connection between D’s culpable act and the consequence (R v Dalloway; R v Marchant)
- where several causes, D act need not be the sole cause of the consequence (R v Benge) BUT must be more than a trifling cause (R v Kimsey; R v Cato)
Operating
- D act will be operating if no NAI exists.
- Whether a NAI breaks the chain of causation depends on:
- – Rforeseeability, if yes then no break in chain
- – whether the act was free, deliberate and informed, if yes, then will break chain.
- if not sure which one to apply, use common sense approach (R v Girdler)
NB “Thin Skull Rule” - D unable to rely on V’s propensity to suffer greater harm than an ordinary human being, will ALWAYS be responsible for the FULL EXTENT of consequences they caused (R v Hayward; R v Blaue)
INTENTION
Two types of intention, DIRECT and OBLIQUE
DIRECT INTENTION
- always has basic meaning (R v Moloney per Lord Bridge)
INDIRECT/OBLIQUE INTENTION
- ONLY applicable to crimes where intention is the ONLY form of MR, NEVER where recklessness is the only or an alternative form of MR.
- Motive is irrelevant in determining whether D had oblique intent.
- Mere foresight of the probability of an outcome can never amount to oblique intent (R v Moloney cf. R v Matthews and Alleyne)
- TEST (R v Woolin)
- – was the consequence of D’s action a virtual certainty? OBJ
- – If yes, did D appreciate it was a virtual certainty? SUBJ
- – must be YES to both for oblique intent to be formed.
- Typically used for indirect attacks like terrorism etc.
RECKLESSNESS
There are two tests for recklessness, they are however essentially the same. (AG’s Reference (No. 3 of 2003)) indicates that R v G test should be used if not specified.
R v G RECKLESSNESS
A person is reckless if they:
- are SUBJ aware of a risk when committing the offence, AND
- it is OBJ unR to take the risk in the circumstances known to them.
— factors unknown to D should not be considered when determining how R.
CUNNINGHAM RECKLESSNESS (R v Cunningham) A person is reckless if they have foreseen a risk of harm occurring but nevertheless go on to take that risk.
MALICE/TRANSFERRED MALICE
An act is malicious when it is doen intentionally or recklessly as to causing some harm (R v Cunningham)
Doc. of Transferred Malice
- D will still be liable where he intends or is reckless as to committing a crime against one person (eg. aiming to hit A but instead hitting B) but in fact commits it against another, regardless of why they made the mistake (R v Latimer)
- REQ
- – D must possess the same MR required for the originally intended crime. If not the case then the MR cannot be transferred. (R v Pembleton)
OMISSIONS
GR: there is not duty to act to prevent harm (R v William Smith)
EX 1: Contractual Duties (R v Pittwood)
Ex 2: failure to perform a public duty eg police (R v Dytham)
Ex 3: Duty imposed by statute (s170 Road Traffic Act 1988)
Ex 4: where duty of care is voluntarily assumed (R v Nicholls; Stone & Dobinson; R v Ruffell; R v Instan)
Ex 5: Where a special relationship exists, parent/child (R v Gibbins and Proctor), husband/wife (R v Hood)
Ex 6: creation of a dangerous situation (R v Miller; R v Evans)
Ex 7: duty to control others eg passenger in a speeding car (Du Cros v Lambourne)
For any of these exceptions to apply, the following must be proven:
- D was under a legal duty
- D breached that duty
- breach caused the AR of the offence to occur
- D has required MR
- the crime has the capacity to be committed by an omission (R v Lowe)
NOVUS ACTUS INTERVENIENS
NAI can be:
AN ACT OF THE VICTIM
- Refusal of Medical Treatment
- – will not break chain (R v Holland; R v Blaue)
- Escape
- – TEST: was it Rforeseeable V would attempt escape in that way? (R v Mackie)
- – If yes, no NAI. V response can’t be “too daft” (R v Roberts per Stephenson LJ)
- Suicide
- – will not break chain IF the original wound is still the operating and substantial cause of death (R v Dear)
- – not clear whether suicide breaks chain once wound has healed. (R v Kennedy) suggests that it WILL BREAK chain if it is a FREE and DELIBERATE act.
AN ACT OF A THIRD PARTY
- Non-medical situations
- – will only break chain if they are “free, deliberate and informed”, a R act performed for self-preservation will not break chain (R v Pagett)
- Medical Negligence
- – unlikley to be held to break chain, will only do so if it makes original wound merely a PART OF HISTORY (R v Smith) OR is so potent and independent it renders D’s contribution insignificant (R v Cheshire)
AN ACT OF NATURE
- Will only be NAIs if:
- – NOT R foreseeable, AND
- – EXTRAORDINARY
