Criminal Law. Mark Thomas
The final factor is that the defendant must remain the ‘operative’ cause of harm. This means that the operation of his act or omission must remain the significant cause of the end result and must not have been superseded by another act, independent of the defendant. Indeed, a defendant may be both the factual and legal cause of the end result, but he may not be held liable if there is an intervening event (an act or an omission) which may ‘break the chain of causation’. In this circumstance, the defendant will no longer be the operative cause of harm. For a detailed account of causation, see Hart and Honoré, Causation in the Law, 2nd edn (OUP, 1985). Intervening acts will be considered now at 2.7.3.
2.7.3New and intervening acts
A break in the chain of causation, also known as a novus actus interveniens or ‘new and intervening act’, will rid the defendant of liability for the consequence of his original act. Although the defendant will remain the factual cause of harm, the intervening act may supersede the blameable element of the defendant’s conduct, thus ridding him of criminal liability for the end result. Remember, though, that he may still be liable for the original act or for an attempt.
The chain of causation may be broken in three distinct circumstances:
•the act of a third party (see 2.7.3.2);
•an act of the victim (see 2.7.3.3); or
• an unforeseeable natural event, sometimes called an ‘act of God’ (see 2.7.3.4).
Lord Hoffmann in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22 stated:
[I]t is of course the causal significance of acts of third parties (as in this case) or natural forces that gives rise to almost all the problems about the notion of ‘causing’ and drives judges to take refuge in metaphor or Latin.
Each of these three circumstances will be considered below. However, it is first essential to consider the general principles that arise when one considers new and intervening acts.
2.7.3.1General principles
According to Goff LJ in R v Pagett (1983) 76 Cr App R 279, an intervening act is one that is ‘so independent of the act of the accused that it should be regarded in law as the cause of the victim’s death to the exclusion of the act of the accused’. Table 2.10 details the most important principles to be aware of, and these principles will be fleshed out below.
Table 2.10Principles of novus actus interveniens
| Principle |
| No intervening act can break the chain of causation if it merely complements or aggravates the effects of the defendant’s initial conduct. |
| Where the defendant’s act is still the ‘substantial and operating cause’ of the result, the defendant may still be liable. |
| The intervening act must be independent of the defendant’s conduct or an unforeseen event which is the immediate and sufficient cause of the end result. |
| The intervening act must be ‘free, deliberate and informed’. |
2.7.3.2Act of a third party
A matter that has come before the courts on a number of occasions is the issue of a subsequent intervention by a third party. As you can imagine, it would be extremely unlikely (and often impossible) for a defendant to break his own chain of causation. In the event that the defendant did break his own chain of causation, he would remain liable for the offence in question, but the focus of the prosecution’s case would shift from the original act to the subsequent act. This is more a matter of evidence than it is of practice or liability. As a result, this section is only concerned with the acts of third parties.
in practice
When considering whether the act of a third party broke the chain of causation, the prosecution may decide that it is appropriate to seek a charge against that third party. However, in problem questions, unless it tells you otherwise, only the liability of the defendant concerned should be considered. The actions of the third party are therefore relevant only to the liability, or lack thereof, of the defendant in question.
As a starting point, it is necessary to set out the test to be applied. According to R v Kennedy (No 2) [2008] 1 AC 269, the act of a third party will only break the chain of causation where:
(a) the third party’s act is ‘free, deliberate and informed’; and
(b) the defendant is no longer the ‘substantial and operating cause’.
Development
Prior to Kennedy (No 2), the law was in a state of flux with contrasting authorities and tests to be applied.
To begin with, the classic pronouncement of the Kennedy (No 2) test in operation today is the case of R v Latif; R v Shahzad [1996] 1 All ER 353. In Latif, the defendants intended to import heroin from Pakistan into the UK. Unbeknownst to the defendants, the drugs were flown to Britain by a British customs officer whilst the defendants were arrested in London. The House of Lords held that the actions of the customs officer broke the chain of causation as his actions of flying the drugs into the jurisdiction were ‘free, deliberate and informed’. Lord Steyn commented that ‘the general principle is that the free, deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is held to relieve the first actor of criminal responsibility’. Importantly, although the defendants were not liable for importing the drugs, they were still liable for attempting to do so.
One can contrast the facts of this case with that of R v Jakeman (1982) 76 Cr App R 223, where the defendant booked suitcases containing drugs onto a series of flights to London. The defendant got cold feet and abandoned the suitcases in Paris. The cases, however, were still sent on to London where the drugs were eventually discovered. Although novus actus interveniens was not an issue in that case, it is clear that the actions of the defendant were still the substantial and operating cause, and no action on the part of the airport officials would break the chain of causation as their actions would not have been ‘free, deliberate and informed’. Jakeman and the more recent case of R v Styles [2015] EWCA Crim 1619 will be discussed in greater detail in Chapter 3.
In 1999 came the controversial authority of Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22 (Empress Cars), which operated in direct conflict with the decision in Latif.
case example
Charge: Polluting controlled waters (Water Resources Act 1991, s 85)
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
House of Lords – Conviction upheld
Point of law: Legal causation in pollution cases
In Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22, the defendant stored oil on its site. During the night, X (an unidentified stranger) released the oil into a watercourse as an act of vandalism. It was learned that the defendant had failed to take precautions to prevent acts of vandalism, or to restrict the subsequent release of fuel from the tap.
The issue before the House of Lords was whether the act of the third party broke the chain of causation.