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the King’s Peace - excludes alien enemies in time of war [historically] killing to take place within a year and a day - repealed by Law Reform (Year and a Day) Act 1996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 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.