Criminal Law. Mark Thomas
us consider the following example which may assist in our understanding.
example
Jack pricks Jill’s finger with a pin. The pin-prick breaks both layers of the skin (the dermis and epidermis) and causes Jill to bleed. Andy then stabs Jill in the chest. Jill is taken to hospital but dies a few hours later.
Both Jack and Andy have wounded Jill. According to Moriarty v Brooks (1834) 6 C & P 684, a wound is a break in both layers of the skin. Both Jack and Andy have done exactly that but on varying levels of severity. However, Jack’s conduct in pricking Jill’s finger will be deemed insignificant and trivial (in relation to murder) despite its status as an effective wounding. Andy’s conduct is substantial whilst Jack’s conduct is likely to be excluded as de minimis. As such, Andy will be liable for Jill’s death, whereas Jack will not.
Multiple or ‘concurrent’ causes
There may be circumstances (as in the above example) where the defendant is not the only cause of harm. More often than not, multiple defendants faced with criminal liability will attempt to pass the blame (see R v Benge (1865) 4 F&F 504). This is often referred to as a ‘cut-throat defence’ and occurs when one defendant blames the other for the end result. Remember from above that the defendant, in order to be liable, need only be ‘more than a minimal’ cause of the end result.
What exactly does ‘more than a minimal’ cause mean though in such a scenario? Goff LJ in R v Pagett (1983) 76 Cr App R 279 reasoned that
the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result. (emphasis added)
According to the Court of Appeal in R v Hennigan [1971] 3 All ER 133, so long as the defendant’s contribution was ‘substantial’, he could be liable for an offence. The Court did not wish to lay down a precise figure or limit on what conduct would be ‘more than a minimal’; however, the trial judge did suggest that one-fifth of the blame was sufficient to attribute liability to the defendant. Whilst Lord Parker CJ referred to the trial judge’s example of apportioning blame as ‘unfortunate’, the Court did not expressly reject the use of figures to assist a jury. Importantly, this does not mean that if a defendant is less than one-fifth to blame, he will not be considered a substantial cause. In all cases, the defendant must simply be more than merely a negligible or minimal cause. Hennigan was subsequently followed in R v Notman [1994] Crim LR 518 where the Court of Appeal held that anything more than a ‘de minimis’ contribution will suffice. The most recent statement on contribution cases can be found in R v Warburton and Hubbersty [2006] EWCA Crim 627 where Hooper LJ held that:
the test for the jury is a simple one: did the acts for which the Defendant is responsible significantly contribute to the victim’s death.
Figure 2.5Understanding substantial cause
2.7.2.3Blameable cause
The next concept to consider, and often the hardest for students to grasp, is that the defendant must be the ‘blameworthy’ cause of the end result. Naturally you may think that if the defendant caused the act, then clearly he is blameworthy. However, it is not as simple as that. When we speak of blameworthiness, we are concerned with whether the blameworthy conduct caused the end result, as opposed to whether the act or conduct was itself blameworthy.
A defendant’s actions may be blameworthy in that they are unlawful or illegal; however, unless that blameworthy conduct actually caused the end result, the defendant is not the blameable cause for the purposes of legal causation.
Let us look at the classic example of blameworthiness in order to ascertain its meaning.
case example
Charge: Gross negligence manslaughter
Case progression: Assize Court – Not guilty
Point of law: Whether a defendant’s blameworthy conduct was the cause of the end result
In R v Dalloway (1847) 2 Cox CC 273, the defendant, whilst driving a cart and horse on a highway, allowed the reins to lie on the back of the horse, as opposed to keeping control of them. Such conduct was negligent on the part of the defendant. The victim, a small child, ran out into the road only a few yards ahead of the cart and was struck. The victim died. The defendant was charged with gross negligence manslaughter.
The court held that although the defendant’s conduct was negligent, he could not have stopped the cart in time to save the victim had he had control of the reins.
Dalloway is the classic authority that the defendant is not liable for an offence unless his blameworthy conduct was the cause of the end result. Essentially, there must be an element of ‘fault’. Emphasis is therefore best placed on whether the end result occurred because of the blameworthy conduct – in Dalloway, because of the defendant’s negligent driving. Where that is not the case, the defendant cannot be said to be the blameworthy cause.
In recent years, however, the appellate courts have questioned whether this requirement for fault is necessary at all. Although the following cases all revolve around driving offences, they are entirely relevant to the broader concept of legal causation.
case example
Charge: Aggravated vehicle taking (TA 1968, s 12A)
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Whether fault was necessary to convict a defendant
In R v Marsh [1997] 1 Cr App R 67, the defendant stole a car and was involved in an accident. The victim survived but was severely injured. The defendant was charged with and convicted of aggravated vehicle taking in the Crown Court.
On appeal, the Court of Appeal faced the question of whether fault was required in an offence worded as ‘owing to the driving of the vehicle, an accident occurred by which injury was caused to any person’. The Court ruled that fault was not an element of the offence. Laws LJ held that the only relevant requirement of the offence was that the driving of the vehicle alone should have been the cause of the accident.
The Court of Appeal was not concerned with the manner of the driving. It ruled that once the basic offence of taking the vehicle had been committed, no further element of fault was required. All that was required was for the defendant to be driving the car on the road at that time. As can be appreciated, this sounds entirely contrary to R v Dalloway.
A similar issue arose in the case of R v Williams [2011] 3 All ER 969. Another driving offence, this case concerned the offence of driving when unlicensed, disqualified or uninsured, contrary to s 3ZB of the RTA 1988.
case example
Charge: Driving when unlicensed, disqualified or uninsured (RTA 1988, s 3ZB)
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Whether fault was necessary to convict a defendant
In R v Williams [2011] 3 All ER 969, the defendant was driving through Swansea, without a licence or insurance, when a pedestrian crossed the central reservation and stepped in front of his car. The accident was entirely the fault of the pedestrian and could