For resulting crimes such as murder and rape, it is necessary for the prosecution to prove not only the defendant has done a particularly unlawful act, but also that act has caused the prohibited result. This is known as the ‘chain of causation’. It has been regarded as a question of fact to be determined by jury in the light of judge’s direction as to the relevant law. Stephen Stute opined that the law tends to regard causation in terms of broad generaliazation based on common sense principles. Simester and Sullivan as well suggested that causation is “very often a function of moral eveluations”. In other words, the legal issue of causation has been treated flexibility. There arises an issue to what extent of judicial activism plays a fundamental role in the scope of causation? If a more rigid adherence to traditional view there will be certainty in law which upholds the legitimacy of the English Legal System as well as public confidence; if approach to more flexible view there will be development and reflection of the contemporary political, economical, moral and social values.
Causation can be proved by factual and legal causation. In the Court of Appeal in both cases of Pagett and Chesire, it was opined that factual cause is the mainly one for the jury to decide after it has been determined by the courts that there has been enough evidence left to them. Generally, factual causation will be discussed using the ‘but for’ test. In R v White, the victim drank a beverage that has been put poison by the defendant. However, autopsy evident that she died as a result of heart attack and it had nothing in relation to the poisonous drink. Therefore, the defendant’s act had not caused the victim’s death. The ‘but for’ test was failed. In short, if the victim would have died in the same way at the same time had the defendant not done a particular act, then the defendant cannot be said to be liable.
Criminal Law Team of the Law Comission, Draft Criminal Code: External Elements: Draft Report (2002) states that there may be wide range of “but for” causes, hence, they proposed that the act must take a “substantial and operative contribution to the result”. This is in line with case law such as Pagett where Robert Goff states that the accused’s act need not to be the sole cause of the result but merely a substantial and significant. In Kimsey, it requires the legal cause to be more than “slight or trifling link”. However, the easiest way of escaping from the loop is the defendant arguing there is a novusactus intervenient that render the casual link to be broken. There are a few categories including the escape cases, medical treatment and drug cases. The confusion between whether rigid approach or flexibility for the principle in causation is more obviously shown in drug related cases, in which will be discuss in detail.
The leading case in this area is Kennedy (No2).However, before Kennedy (No2), it is a grey area whether criminal liability should be imposed to drug dealer who supplies drugs to the victim. In Dalby, the defendant had supplied drugs to the victim who eventually died. Walker LJ recognized the difficulty in this case that the act of supplying drugs is not the direct cause of death, though it was an act which made the consequence possible or more likely to occur. He held that the ‘supply of drugs would itself cause no harm unless the deceased had subsequently used it in the form and quantity which was dangerous.’ Similarly in Dias, the court held that a freely informed decision, made by an adult of sound mind to self-inject drugs, would constitute a novusactus intervenient that break the chain of causation. Note that in Dalby the defendant had not prepared the syringe.
However, in Finlay (2003), which has the similar fact, the court came to a different decision that drug supplier is liable for drugs taker’s death. Buxton LJ made reference to Lord Hoffman’s judgment in Environment Agency v Empress Car Company, that the defendant’s act need not necessary be the sole cause of death, but if what the victim had done resulting his death was the ordinary occurrence of the defendant’s act in the eye of jury’s common sense, then it will not break the chain of causation. On the other hand, if such action by victim is so extraordinary it will leave an open finding that the defendant did not bear the liability. This is at certain degree similar to the rationale in R v Roberts, where Stephenson LJ in obited stated that the chain of causation is broken only if the victim did something so daft or so unexpected to a reasonable man. In short, if it was so foreseeable that there is a risk of self-administration, then there is no break of causation. Similar decision with Finlay was reach in R v Rodgers (2003)however; difference in Rodgers was that the defendant had assisted in the administration of drugs, while in Finlay the defendant only supplied the drugs.
These conflicting cases cause confusion over this area, as to whether the drug supplier when supplying drugs to victim is sufficient of actusnoveninteveniens. From Dalby and Dias, the courts showed the making of decision based on general principles and sound legal reasoning, later in Finlay and Rodgersit moved to a morality approach where there should be an obligation imposed on drugs suppliers. This was the transition of which the courts on their discretion moved from strict causation rule to a more flexible one.
Kennedy has clarified the situation in fatal drug self-administration cases. Dennis J Baker in ‘Omission Liability for Homicide Offences: Reconciling R v Kennedy and R v Evans’stated that the House of Lords opined that ultimate harm could not be imputed to the defendant as the deceased’s autonomous fully informed choice broke the chain of causation. Therefore, as long as the deceased is a fully informed adult with a free and voluntary self-injection, the person who supplies the prohibited drug is not guilty. As such, James A and Thirlaway V in a Journal of Criminal Law, titled ‘House of Lords: Manslaughter; Causation: Supply of Drugs’ thought that Rogers and Finlay had been wrongly decided.
This seems that the courts are in a transition from a strict view to a more flexible one based on the notion of free will and individual autonomy. However, in Evans (2009) , the courts held that Evans who gave her sister some drugs and failed to summon help when it was so obvious she had overdose was liable for her death. This does not follow the line of reasoning established in Kennedy (No2), since her sister injected herself in a free, deliberate and voluntary act nevertheless she was guilty of gross negligence manslaughter. The rationale in this case was that A owes a duty of care to B when A creates or contributes to a situation in which he knows or ought to have known to be life-threatening. This is somehow an extent from the principle instead in Miller, but one should remember that Miller was related to criminal damage instead of a more serious crime of manslaughter.
Jonathan Rogers in Death Drugs and Dutygave a possible explanation upon such decision was that it is normal to speak ‘cause’ and ‘contributing to’ interchangeably, therefore one may be held to ‘cause’ a result simply by having ‘contributed’ to it. Another possible explanation is that the policy laid behind such case. Evans is different from Kennedy in that she was aware of the deceased overdose yet she had done nothing. Nevertheless, Evans showed the courts having discretion on determining whether the chain of causation is broken, by leaning more towards to morally responsibility rather than individual autonomy. However, this does not mean that Evans has been wrongly decided, since it seems fair to impose some liability on those who as suggested by Dennis J Baker ‘is present to see that the harm is no longer a mere possibility but an actuality’but fail to summon help.
In conclusion, Reed commented that the recent decisions between Kennedy and Evans are palpably inconsistent over the issue of causation, voluntariness and assistance in drug-abuse injection. Paul Duke in ‘Drug Dealers and Fatal Self-Administration in Australia: A Cause for Concern’as well thought that such inconsistencies evident that the courts have not paid due consideration to the general principles. In fact, Alan Reed in ‘Causation and assisting Drug-abuse Injection’ suggested that ‘the courts have been more concerned about the moral fault attached to drug administration than with strict legal principles’. As such, the statement suggested by Simister and Sullivan that causation is very often a function of moral evaluation is deemed to be not incorrect. However, it is unpractical and unrealistic if the courts strictly follow the legal principles without any adaption to meet current contingencies. Therefore, surely there has to a balancing between the notion of individual voluntariness and morally responsibility, in order to achieve an equilibrium on the issue of causation.
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