General elements of liability Elements of a crime ACTUS REUS CAUSATION

AIMS and OBJECTIVES By the end of the session the student will be able to: UNDERSTAND that there has to be a chain of causation linking the crime to the defendant EXPLAIN the tests that apply to both factual and legal causation COMPETENTLY APPLY the tests to given scenarios

CAUSATION In order to prove someone guilty of a crime where a consequence is required (e.g. murder where there has to be a dead body) then it has to be proved that the defendant CAUSED that consequence. Without this, in many circumstances the defendant would be found not guilty.

CAUSATION The defendant’s conduct must be: The FACTUAL cause of the consequence. The LEGAL cause of the consequence. AND there must be no intervening act which breaks the CHAIN OF CAUSATION.

FACTUAL CAUSATION There are two tests to prove factual causation: the ‘but for’ test but for the actions of the defendant, the victim would not have died as and when they did. White (1910). Dalloway (1847). Paggett (1983). the de minimis rule: the defendant’s actions must be more than just a minimal cause of the death but need not be substantial. Kimsey (1996) Jury can be told that instead of using the ‘de minimis’ phrase, there must be “more than a slight or trifling link”.

LEGAL CAUSATION This can be satisfied by proving any of the following: that the original act was an operative and substantial cause of the consequence. that the intervening act was reasonably foreseeable. the thin skull test

Operative and Substantial This is frequently looked at with homicide cases where the original injury must be an operative and substantial cause of the death. It frequently looks at medical treatment creating an intervening act.

Operative and Substantial and Medical Treatment Medical treatment rarely breaks the chain of causation. It needs to be proved that the treatment was so independent of the defendant’s actions that it actually had a greater affect on the consequence than the defendant’s actions thus making the defendant’s actions insignificant.

Operative and Substantial and Medical Treatment Find out the facts of the following cases and discuss the outcomes: Smith (1959) Cheshire (1993) Jordan (1956) In Smith and Cheshire the doctors were trying to save the victim’s lives – they wouldn’t have required treatment but for the defendant’s actions. In Jordan the injuries had virtually healed.

Operative and Substantial and Medical Treatment Smith (1959) Significantly poor medical treatment but original wounds were still operative and substantial so defendant remained liable for the death. Cheshire (1991) Defendant only had to contribute significantly to the death. His actions did not need to be the sole cause. Jordan (1956) Original wounds were nearly healed and victim was given ‘palpably wrong’ medical treatment so the defendant was not liable.

Operative and Substantial and Medical Treatment Following the cases we have just looked at, do you think the defendant will be liable if the victim is on a life support machine which the doctors recommend should be switched off? The case of Malcherek (1981) showed that switching off a life support machine will not break the chain of causation. Defendant stabbed his wife. She was on a life support machine but the doctors said she was brain dead so it was switched off. He was found guilty of murder.

Intervening Acts Causation is like an interlinked chain – think of a necklace or anchor chain. The chain must form a direct between the original act of the defendant and the final consequence. The chain can be broken by another act that occurs between the original act and the consequence = an intervening act. Causation

Intervening Act These can be: an act of a third party. the victim’s own act. a natural and unpredictable event. The intervening act must be sufficiently independent of the defendant’s actions and sufficiently serious to break the chain. Pagett (1983) action of police in returning fire was foreseeable.

Intervening Acts The victim’s own acts have the potential to break the chain of causation unless they are reasonably foreseeable. Roberts (1971) Marjoram (2000) William (1992) The victim’s actions have to be in proportion to the threat.

Thin Skull Test The defendant must take the victim as they find them. If the defendant hits the victim over the head with a blow that would usually cause no real harm but the victim has an usually thin skull and dies then the defendant is liable. Blaue (1975)

CAUSATION In small groups, go through the information on causation and draw up a flow chart of the questions that you would need to answer to decide whether there is factual and legal causation present and whether a defendant will be found liable or not.

CAUSATION Using the flowchart you have drawn up, now apply those questions to the past exam question on the handout to decide whether both factual and legal causation is present.

Problems with Causation The “more than a slight or trifling link” referred to in Kimsey (1996) is very vague. If the victim refuses medical treatment that would save them (e.g. Blaue), should the defendant be liable? The thin skull test means that the defendant is convicted of murder when there was no intention to kill.