Criminal Law

Murder & Causation

What’s Actus Reus again?

Any crime may require one or more as elements:

physical conduct – e.g. appropriating property [in theft] producing a consequence – e.g. causing death [in murder] possibly status – e.g. being member of proscribed organisation [terrorism

legislation]

Prosecution may have to prove one or more of:

an act maybe failure to act or simply status

committed in legally relevant circumstances and (maybe) a prohibited result

Homicide Homicide: family of offences linked by D causing

death:

murder - requires intent to kill

voluntary manslaughter - although intent to kill, reduced through circumstances:

• diminished responsibility: s.2 Homicide Act 1957• provocation: s.3 HA57

involuntary manslaughter - no intent to kill but blameworthy conduct - e.g. grossly negligently

other:

• infanticide: victim is under 1 year old

• causing death by dangerous driving : s.1 Road Traffic Act 1988

‘Actus reus’ in Homicide

unlawfully killing a reasonable person who is in being and under the King’s Peace, the death following within a year and a day (Coke) - shortened to causing death act must be unlawful

the soldier or executioner may have right to lawfully kill

end-of-life decisions by doctors. Do they have the right to lawfully kill?

• Charlotte Wyatt - October 2004• Airedale NHS Trust v Bland [1993] 1 All ER 821• Re A [2000] 4 All ER 961 - conjoined twins

doctors guilty of murder? Or are acts ‘lawful’ or is this (Re A) a defence? of necessity?

The Act in Homicide

victim must be a person in being:

Malcherek 1981 – no brain stem activity – does original injury or decision to switch off life support cause death? Was V already dead? Court avoids issue – D’s act was operating and substantial cause

foetus:• not a life in being but see Abortion Act 1967

• AGs Ref 3/94 1997 – stabbed mother, premature baby who died after birth. House of Lords hold D guilty of manslaughter.

also killing under the King’s Peace - excludes alien enemies in time of war

[historically] killing to take place within a year and a day - repealed by Law Reform (Year and a Day) Act 1996

The Act in Homicide Key element is killing another:

the defendant must be shown to have caused the death of the victim

White 1908 - D does his best to poison mother but does he actually do it?

Causation: general requirement Does D cause V’s death? But:

Causation is not peculiar to homicide - dealing with a general principle of criminal law:

s.18 Offences against the Person Act - D must cause grievous bodily harm

s.15 Theft Act 1968 - obtaining property by deception (the deception must cause the victim to hand over the property)

strict liability - can play a part even here

Gosney 1971• no indicating signs as D comes onto dual carriageway - drove on wrong side of road –

careless driving?

Causation - factually

Does D’s contribution cause the result?

first: factually

‘but for’ or ‘sine qua non’ principle - result would not have occurred without D’s act

• Dalloway 1847 – driving cart without hands on reins – child runs in front – would have died anyway

irrelevant that D’s act is not the only cause

• Benge 1865 – railway maintenance negligent – irrelevant that TPs also negligent

• Pagett 1983 - V used as human shield by D and shot by PC

Causation: legal aspects Factual causation is necessary but not sufficient

second: legal aspects:

substantial: D’s act more than minimal cause: Hennigan 1971• only necessary for prosecution to show D’s dangerous driving was a cause of the accident

and was more than de minimis; not necessary to show that it was a 'substantial' cause

ordinary hazard: D might subject V to normal risk but not increase that risk - does not legally cause result

• Bush 1880 puts V into hospital where catches fatal illness

• Boswell 1973 Crim LR 307 chases onto electrified rail – here increasing risk

Causation: legal aspects legal aspects (cont):

need not be direct: D need not touch the V

• Watson 1989 – verbal abuse of elderly victim by burglar

• Towers 1874 – assaults girl holding baby – baby convulsions and dies

• Halliday 1889, Mackie 1973, – V dies seeking to escape assault

take victim as you find them:

• Hayward 1908; Blaue 1975 - V might suffer from weak heart or egg shell skull

Causation: key principle

Key principle:

if D has factually caused the result, has also legally caused it if a reasonable person would have foreseen that consequence

Roberts 1972 - V’s seeks to escape from moving car - act of escaping was unreasonable but not so unreasonable as not to be foreseeable

Pagett 1983 – V used as human shield by D and shot by PC

Williams 1992 – gave lift to V – tried to rob – V jumps from moving car. Was it within the range of responses which could be expected? (Trial judge fails to give direction on causation – conviction quashed)

Breaking the chain:causation

Roberts 1972 and Williams 1992 - in either, does V’s action break link between D’s conduct (threat) and the consequence (injury)?

• Look at causation as a chain: is there any intervening act that breaks that chain so as to remove D from responsibility?

Breaking the chain: the victim Novus actus interveniens - breaking the chain of causation

Victim’s actions:

Roberts 1972, Williams 1992 and escape cases

• compare Blaue 1975 - is principle of foreseeability in conflict with ‘taking your victim as you find her’?

• Dear 1996 – V opens wounds caused by D

Kennedy 1999 Crim LR 65 - hands syringe of heroin to V - convicted - but is there causation?

• Dias 2001 – D supplies but V injects heroin Causation is matter of fact for jury – distinguish A injecting B with supplying B – but latter

may still cause death where encouragement? Also Rogers 2003, Finlay 2003

Breaking the chain: third parties

Novus actus interveniens - breaking the chain of causation

TP’s actions: where intervention is voluntary act of responsible actor, this can relieve D of responsibility

problems where TP’s actions contribute to result

Breaking the chain: third parties

In Smith 1959, V is dropped and receives poor medical treatment. Does not break the chain of causation:

at time of death, original wound was still operating and substantial cause - see also Malcherek 1981

Compare with Jordan 1956 where original wound had healed and V died of intolerance to terramycin

Causation

Smith and Jordan can be reconciled on grounds of ‘operating and substantial cause’.

But consider: Cheshire 1991 where V dies 2 months after shooting and

because of rare complication, narrowing of windpipe. Conviction was affirmed

Pagett 1983 where V is shot by police

‘Principled tests’ are no more than a veil under which decisions are ultimately based on policy considerations.