ACTUS REUS

The actus reus in criminal law consists of all elements of a crime other than the state of mind of
the defendant. In particular, actus reus may consist of: conduct, result, a state of affairs or an
omission.



Conduct - the conduct itself might be criminal. Eg. the conduct of lying under oath represents
the actus reus of perjury. It does not matter that whether the lie is believed or if had any effect
on the outcome of the case, the actus reus of the crime is complete upon the conduct.

Examples of conduct crimes:

Perjury
Theft
Making off without payment
Rape
Possession of drugs or a firearm

Result - The actus reus may relate to the result of the act or omission of the defendant. The
conduct itself may not be criminal, but the result of the conduct may be. Eg it is not a crime to
throw a stone, but if it hits a person or smashes a window it could amount to a
crime. Causation must be established in all result crimes.

Examples of result crimes:

Assault
Battery
ABH
Wounding and GBH
Murder & Manslaughter
Criminal damage



State of affairs - For state of affairs crimes the actus reus consists of 'being' rather than 'doing'.
Eg 'being' drunk in charge of a vehicle (Duck v Peacock [1949] 1 All ER 318 Case summary) or
'being' an illegal alien (R v Larsonneur (1933) 24 Cr App R 74 case summary).




Omission - Occassionally an omission can amount to the actus reus of a crime. The general rule
regarding omissions is that there is no liability for a failure to act. Eg if you see a child drowning
in shallow water and you don't do anything to save that child you will not incur criminal liability
for your inaction no matter how easy it may have been for you to save the child's life. This
general rule however, is subject to exceptions:

1. Statutory duty:

In some situations there is a statutory duty to act. Eg to provide details of insurance after a traffic
accident or to notify DVLA when you sell a vehicle.

2. Contractual duty:

If a person owes a contractual duty to act, then a failure to meet this contractual duty may result
in criminal liability:

R v Pittwood [1902] TLR 37 Case summary

3. Duty imposed by law

The actus reus can be committed by an omission where there exists a duty imposed by law.
There are three situations in which a duty may be imposed by law. These are where the
defendant creates a dangerous situation, where there has been a voluntary assumption of
responsibility and misconduct in a public office. Additionally an omission may be classified as
part of a continuing act.


a). Creating a dangerous situation and failing to put it right:

R v Miller [1983] 2 AC 161 \
R v Miller [1983] 2 AC 161 House of Lords

The defendant had been out drinking for the evening. He went back to the house he
had been staying in and fell asleep on a mattress with a lighted cigarette in his hand.
He awoke and saw that the cigarette had started a small fire. Upon seeing the fire, he
then got up and went to another room and went back to sleep. At his trial, the
prosecution did not rely on the acts of the defendant in falling asleep with a lighted
cigarette as being reckless, but relied solely on the grounds that upon becoming aware
of the fire he failed to take steps to put the fire out or call the fire brigade.

Held:

The defendant had created a dangerous situation and owed a duty to call the fire
brigade upon becoming aware of the fire. He was therefore liable for his omission to
do so.


b). Assumption of responsibility:


R v Stone & Dobinson [1977] 1 QB 354 Case summary

R v Stone & Dobinson [1977] 1 QB 354

Ted Stone was 67, totally blind, partially deaf had no appreciable sense of smell and
was of low intelligence. He lived with his housekeeper and mistress of 8 years,
Gwendolyn Dobinson aged 43 who was described as ineffectual and inadequate. Ted's
sister Fanny came to live with them. She had previously lived with another sister but
had fallen out with her. She had mental problems and was suffering from anorexia
nervosa. Ted and Gwendolyn took her in and agreed to look after her. However,
Fanny's condition deteriorated and she was found dead in her bed in appalling
conditions.

Stone and Dobinson were found liable for her death as they had assumed a
responsibility to her by taking her in. They failed to look after her and ensure she got
the medical help she needed.




c). Misconduct in a public office:


R v Dytham [1979] Q.B. 722 Case summary


An omission can also be classed as part of a continuing act:

Fagan v MPC [1969] 1Q.B. 439
Fagan v MPC [1969] 1 QB 439

A policeman was directing the defendant to park his car. The defendant accidentally
drove onto the policeman's foot. The policeman shouted at him to get off. The
defendant refused to move. The defendant argued at the time of the actus reus, the
driving onto the foot, he lacked the mens rea of any offence since it was purely
accidental. When he formed the mens rea, he lacked the actus reus as he did nothing.

Held:

The driving on to the foot and remaining there was part of a continuing act.








Mens rea - Intention




Mens rea in criminal law is concerned with the state of mind of the defendant. Most true crimes
will require proof of mens rea. Where mens rea is not required the offence is one of strict
liability. There are three main levels of mens rea: intention, recklessness and negligence.




Intention


Intention requires the highest degree of fault of all the levels of mens rea. A person who intends
to commit a crime, can generally be said to be more culpable than one who acts recklessly.

Intention differs from motive or desire (Per Lord Bridge R v
Moloney [1985] AC 905 Case summary). Thus, a person who kills a loved one dying from a
terminal illness, in order to relieve pain and suffering, may well act out of good motives.
Nevertheless, this does not prevent them having the necessary intention to kill see R v
Inglis [2011] 1 WLR 1110 Case summary .



Intention can be divided into direct intent and oblique intent.




Direct intent:

The majority of cases will be quite straight forward and involve direct intent. Direct intent can be
said to exist where the defendant embarks on a course of conduct to bring about a result which in
fact occurs. Eg D intends to kill his wife. To achieve that result he gets a knife from the kitchen,
sharpens it and then stabs her, killing her. The conduct achieves the desired result.



Oblique intent:


Oblique intent is more complex. Oblique intent can be said to exist where the defendant embarks
on a course of conduct to bring about a desired result, knowing that the consequence of his
actions will also bring about another result. Eg D intends to kill his wife. He knows she is going
to be on a particular aeroplane and places a bomb on that aeroplane. He knows that his actions
will result in the death of the other passengers and crew of the aeroplane even though that may
not be part of his desire in carrying out the action. In this situation D is no less culpable in killing
the passengers and crew than in killing his wife as he knows that the deaths will happen as a
result of his actions.




The courts have struggled to find an appropriate test to apply in cases of oblique intent. In
particular the questions which have vexed the courts are:

1. Should the test be subjective or objective?
2. What degree of probability is required before it can be said that the defendant intended
the result?
3. Whether the degree of probability should be equal to intention or whether it is evidence
of intention from which the jury may infer intention



Subjective or objective test


A subjective test is concerned with the defendant's perspective. In relation to oblique intent it
would be concerned only with whether the defendant did foresee the degree of probability of the
result occurring from his actions. An objective test looks at the perspective of a reasonable
person. Ie Would a reasonable person have foreseen the degree of probability of the result
occurring from the defendant's actions.



It is arguable, that since intention requires the highest degree of fault, it should be solely
concerned with the defendant's perception. In addition, intention seems to be a concept which
naturally requires a subjective inquiry. It seems somehow wrong to decide what the defendant's
intention was by reference to what a reasonable person would have contemplated. However,
originally an objective test was applied to decide oblique intent:


DPP v Smith [1961] AC 290 Case summary


R v Hyam [1975] AC 55 Case summary




The House of Lords accepted a subjective test was applicable. However, the majority decision
of the House of Lords was out of line with s.8 in that it was accepted that foresight of
consequences being highly probable was sufficient to establish intent.(Lord Hailsham
dissenting) a point which was taken and rectified in R v Moloney [1985] AC 905 (Case
summary)


R v Moloney [1985] AC 905 House of Lords

The defendant shot his step father killing him. Evidence was produced that the pair had a good
relationship. They had been celebrating the defendant's grandparents ruby wedding anniversary
and had consumed a quantity of alcohol. The rest of the family had retired to bed and the two
stayed up drinking. The defendant told his step father that he wanted to leave the army. The step
father was not happy at the news and berated the defendant. He told him he could load, draw and
shoot a gun quicker than him and told him to get the guns. The defendant returned with two guns
and took the challenge. The defendant was first to load and draw and the step father said, "I don't
think you have got the guts but if you have pull the trigger". The defendant pulled the trigger but
in his drunken state he did not believe the gun was aimed at the step father. The trial judge
directed on oblique intent and the jury convicted. The Court of Appeal dismissed the appeal and
the defendant appealed to the House of Lords.


Held:

The defendant's conviction for murder was substituted for manslaughter. It was not a case of
oblique intent and the judge should not have issued a direction relating to further expansion of
intention.

Lord Bridge:
"The golden rule should be that, when directing a jury on the mental element necessary in
a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is
meant by intent, and leave it to the jury's good sense to decide whether the accused acted
with the necessary intent, unless the judge is convinced that, on the facts and having
regard to the way the case has been presented to the jury in evidence and argument, some
further explanation or elaboration is strictly necessary to avoid misunderstanding."

Lord Bridge also gave guidance on the approach for the test on oblique intent:
"In the rare cases in which it is necessary to direct a jury by reference to foresight of
consequences, I do not believe it is necessary for the judge to do more than invite the jury to
consider two questions. First, was death or really serious injury in a murder case (or whatever
relevant consequence must be proved to have been intended in any other case) a natural
consequence of the defendant's voluntary act? Secondly, did the defendant foresee that
consequence as being a natural consequence of his act? The jury should then be told that if they
answer yes to both questions it is a proper inference for them to draw that he intended that
consequence."

Lord Bridge's test on oblique intent:

"First, was death or really serious injury in a murder case (or whatever relevant consequence
must be proved to have been intended in any other case) a natural consequence of the defendant's
voluntary act? Secondly, did the defendant foresee that consequence as being a natural
consequence of his act? The jury should then be told that if they answer yes to both questions it
is a proper inference for them to draw that he intended that consequence."




However, R v Moloney left a problem with regards to the degree of probability required. This
was considered in:



R v Hancock & Shankland [1985] 3 WLR 1014 Case summary



The degree of probability was still causing problems and the cases of R v Maloney and R
v Hancock and Shankland were reviewed by the Court of Appeal in R v Nedrick which
reformulated the test.


R v Nedrick [1986] 1 WLR 1025 Case summary


Lord Lane CJ:
"the jury should be directed that they are not entitled to infer the necessary
intention, unless they feel sure that death or serious bodily harm was a virtual
certainty (barring some unforeseen intervention) as a result of the defendant's
actions and that the defendant appreciated that such was the case."




The authority of this test was questioned in Woollin. The House of Lords largely approved of the
test with some minor modifications setting the current test of oblique intent:

R v Woollin [1999] AC 82 Case summary

The current test of oblique intent:
"Where the charge is murder and in the rare cases where the simple direction is not enough, the
jury should be directed that they are not entitled to find the necessary intention, unless they feel
sure that death or serious bodily harm was a virtual certainty (barring some unforeseen
intervention) as a result of the defendant's actions and that the defendant appreciated that such
was the case."

The decision is one for the jury to be reached upon a consideration of all the evidence.

mens rea - Reckless







In general terms, being reckless refers to the taking of an unjustified risk. Recklessness in
criminal law has given rise to more difficulty. In particular the question as to whether
a subjective test should apply to recklessness or whether an objective test should apply.



In the context of criminal damage, originally the leading case in this area of R v
Cunningham held that a subjective test applied to determine recklessness:



R v Cunningham[1957] 2 QB 396 Court of Appeal

The appellant ripped a gas meter from the wall in order to steal the money in the meter. This
caused gas to escape. The gas seeped through small cracks in the wall to the neighbouring
property where his future mother-in-law was sleeping and was poisoned by the gas. He was
charged under s 23 of the Offences against the Person Act 1861 which provides 'Whosoever shall
unlawfully and maliciously administer to or cause to be administered to or taken by any other
person any poison or other destructive or noxious thing, so as thereby to endanger the life of such
person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of
felony ...' The trial judge directed the jury that malicious meant wicked. The jury convicted the
defendant and he appealed.

Held:

Malicious means either 1) An actual intention to do the particular kind of harm that in fact was
done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has
foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).


This gave rise to Cunningham recklessness which asks: did the defendant foresee the harm that
in fact occurred, might occur from his actions, but nevertheless continue regardless of the risk.





Cunningham recklessness was followed in R v Briggs [1976] 63 CAE 215. However, the
subsequent case of R v Parker (1976) 63 CAS 211 modified the test to include closing one's eyes
to an obvious risk. These cases were reviewed by the Court of Appeal in R v Stephenson where it
was held a subjective test applied:



R v Stephenson [1979] QB 695 Case summary
v Stephenson [1979] QB 695 Court of Appeal

The appellant was homeless and schizophrenic. He found refuge in a haystack where he made a
hollow and tried to go to sleep. He was cold so he lit a fire inside the hollow to keep himself
warm. Inevitably the whole haystack caught fire and he ran off and was picked up by the police.
The defendant contended that he never thought of the possibility of a the whole stack catching
fire. At his trial a consultant psychiatrist gave evidence that he had a long history of
schizophrenia and this would mean that the defendant was quite capable of lighting a fire in a
haystack without ever thinking of the danger involved. The trial judge directed the jury:
"First you perhaps want to ask yourselves whether in lighting the fire the accused carried
out a deliberate act, and the answer to that one thinks must be yes, because he has said
that he lit the fire. Secondly, you may want to ask yourselves whether you regard it or not
as an obvious fact that there was some risk of damage, and when the act is the act of
lighting a fire inside a straw stack, you may have little difficulty in dealing with the
question whether it is an obvious fact that there is some risk of damage. Did he then do
that knowing or closing his mind to the obvious fact, in the case from which these words
are taken, as I say the reason advanced or the reason found for the man closing his mind
to the obvious fact was that he was so angry that he pressed on regardless, and there may
be...... all kinds of reasons which make a man close his mind to the obvious fact
among them may be schizophrenia, that he is a schizophrenic."

The jury convicted the defendant.

Court of Appeal Held:

Defendant's conviction was quashed. The direction was a misdirection. The test should be
entirely subjective, if the defendant did not foresee a risk of damage he should not be liable.




However, this was followed by:


MPC v Caldwell [1982] AC 341 Case summary



This introduced Caldwell recklessness:

A person is reckless as to whether property is destroyed or damaged where:

(1) he does an act which in fact creates an obvious risk that property will be destroyed or
damaged and
(2) when he does the act he either has not given any thought to the possibility of there being any
such risk or has recognised that there was some risk involved and has nonetheless gone on to do
it.



Caldwell recklessness radically altered the law and received widespread criticism. The tension
between subjective and objective tests of recklessness continued with each test being
problematic. The difficulty with a subjective test is that it is based entirely on the defendant's
state of mind and it is for the prosecution to prove that the defendant did foresee a risk of harm.
It is difficult to prove a state of mind. It allows too many defendants to escape liability by simply
claiming they did not foresee a risk. However, Caldwell recklessness is capable of causing
injustice as it criminalises those who genuinely did not foresee a risk of harm including those
who are incapable of foreseeing a risk as the following case illustrates:




Elliot v C [1983] 1 WLR 939 Case summary
Elliott v C [1983] 1 WLR 939

The defendant was a 14-year old girl of low intelligence who had started a fire in a shed. She had
poured white spirit on the floor and set it alight. The magistrates applied the test laid down in R v
Caldwell but inferred that in his reference to "an obvious risk" Lord Diplock had meant a risk
which was obvious to the particular defendant. They acquitted the defendant because they found
that the defendant had given no thought at the time to the possibility of there being a risk that the
shed and contents would be destroyed, and this risk would not have been obvious to her or
appreciated by her if she had thought about the matter. The prosecution appealed by way of case
stated.

Held:

If the risk is one which would have been obvious to a reasonably prudent person, once it has also
been proved that the particular defendant gave no thought to the possibility of there being such a
risk, it is not a defence that because of limited intelligence or exhaustion she would not have
appreciated the risk even if she had thought about it.


Subjective recklessness was held to apply to non-fatal offences against the person:


R v Spratt [1990] 1 WLR 1073 Case summary
R v Spratt [1990] 1 WLR 1073.

The defendant fired an airgun with pellets out of his flat window. He stated that he did not think
anyone was in the vicinity and did not foresee a risk of any harm he only wanted to see how far
the pellets would go. Two pellets struck a young girl playing in the forecourt. He was charged
with ABH and pleaded guilty. He was sentenced to 30 months and appealed against sentence.
When the appeal came before the court the judge questioned whether the facts as stated could
give grounds for a conviction and referred an appeal against conviction. The Crown contended
that inadvertent (Caldwell) recklessness would suffice for a charge under s.47.

Held:

Conviction was quashed. Recklessness required the defendant to have an appreciation of the risk.



DPP v Morgan [1976] AC 182 Case summary


R v Parmenter [1991] 94 Cr App R 193

The defendant was convicted on four counts of causing GBH to his baby son under s.20. The
baby suffered injuries to his boney structures of his legs and forearms due to the heavy handed
way the defendant handled the baby. The defendant was not used to handling young babies and
did not know that his actions would result in injuries. The trial judge directed the jury that they
were to convict if the defendant should have foreseen that his handling of the child would result
in some harm albeit of a minor nature. The defendant appealed contending that it was necessary
to establish that the defendant appreciated the risk and it was not sufficient that he should have
foreseen a risk of injury.

Held:

The appeal was allowed. His convictions under s.20 were substituted with convictions for ABH
under s.47.





In addition to causing injustice other criticisms of Caldwell reckless:

Whilst criminal damage was subject to Caldwell recklessness, Cunningham
recklessness applied to offences against the person and thus property was given a greater
level of protection.

The precise limits as to which offences required which type of recklessness were not fully
understood or defined

Having two definitions for the same word was confusing

The test was difficult for juries to understand

Having an objective test blurs the distinction between negligence and recklessness

There was uncertainty as to whether the Caldwell lacuna existed.



Caldwell recklessness was eventually overruled by the House of Lords:



R v G & R [2003] 3 WLR Case summary

v G & R [2003] 3 WLR House of Lords

The two appellants, aged 11 and 12, went camping for a night without their parents permission.
The boys found some old newspapers outside the Co-op which they lit with a lighter and then
threw them under a wheelie bin. They then left without putting them out assuming they would
naturally burn out. In fact the burning newspapers set light to the wheelie bin and the fire spread
to the Co-op shop and caused over 1m of damage.

Held:

The defendants' convictions were quashed. The House of Lords overruled MPC v
Caldwell [1982] AC 341.

The appropriate test of recklessness for criminal damage is:
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with
respect to -

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk."




The House of Lords held a subjective standard now applies to criminal damage:

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971
with respect to -

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk."

Recklessness in criminal law

Negligence in criminal liability







Negligence plays a minor role in criminal liability. It used to form the basis of some driving
offences but this has largely been superseded by recklessness. Negligence adheres to
an objective standard. This is strictly applied as can be seen in McCrone v. Riding [1938] 1 All
ER 137 where it was held that a learner driver must meet the standard of a qualified driver.


The main role for negligence in criminal law is with regards to gross negligence manslaughter.
This requires the prosecution to establish that the defendant owed a duty of care, was in breach
of duty which resulted in death. The current test for establishing liability for this offence was set
out in:



R v Adomako [1994] 3 WLR 288 Case summary
Adomako test:
"whether the conduct of the defendant was so bad in all the circumstances as to
amount in their judgment to a criminal act or omission."


The doctrine of transferred malice applies where the mens rea of one offence can be
transferred to another. For example, suppose A shoots at B intending to kill B, but misses and
hits and kills C. Transferred malice can operate so that the mens rea of A (intention to kill B) can
be transferred to the killing of C. Consequently A is liable for the murder of C, despite the fact
that he did not actually intend to kill C.

R v Latimer (1886) 17 QBD 359

The defendant got into a fight in a pub with another man. He took off his belt and hit the man
with the belt. The belt ricocheted off and hit a woman in the face.

Held:

The defendant was liable for the injuries inflicted on the woman despite the fact that he did not
intend to harm her. The mens reas had to cause harm to the man was transferred to the woman.


Transferred malice does not operate where the crime which occurred was different from that
intended:


R v Pembliton (1874) LR 2CCR 119

The defendant threw some stones into a crowd of people. He wanted to disperse the crowd. A
stone hit and smashed a window. He was convicted of criminal damage and appealed.

Held:

Conviction quashed. His mens rea for an offence against the person could not be transferred to a
property offence as they are entirely different offences.

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4. CAUSATION
The defendant must be proved to have caused the victim's death (although the defendant's act
need not be the sole or the main cause of death). Two matters need to be considered: did the
defendant in fact cause the victim's death, and if so, can he be held to have caused it in law?
Further problems may arise where, after the defendant has inflicted an injury on the victim, some
other act or event intervenes before death; or where the defendant receives negligent medical
treatment. The victim may also die attempting to escape from the defendant.
A) Causation in fact
To establish causation in fact, the "But for" Test established in R v White [1910] 2 KB 124 must
be applied. It must be proved that, but for the defendant's acts, the death of the victim would not
have occurred:
R v White [1910] 2 KB 124. The defendant placed poison in a glass containing his mother's
drink. She drank the contents of the glass, but died of heart failure before the poison could take
effect. The defendant was charged with murder but convicted of attempted murder. With regard
to causation in fact, the defendant's act in placing poison in his mother's drink did not in any way
cause her death. If one were to ask, "But for the defendant's act would his mother have died?",
the answer would obviously have to be yes; she would have died anyway, thus disproving
causation in fact.
B) Causation in law
In R v Smith [1959] 2 QB 35, it was held that the defendant's act would be regarded as the cause
in law if it could be shown that it was the operating and substantial cause of the victim's death
(see below).
PROBLEMS WITH CAUSATION
C) Intervening acts or events
Sometimes, after the defendant's act, there is an intervening act or event before the death occurs
which contributes to the death. We must therefore consider the legal effect of an intervening act.
The defendant is not responsible for the death where the victim dies as a result of some
subsequent act, unconnected with the defendant's act, which would have caused the death on its
own even if the defendant had not inflicted the original injury on the victim. However, not every
intervening act will relieve the defendant from liability for the subsequent death. There are three
different grounds on which the defendant might still be held to have caused the death:
(i) Combination of causes
If the death is caused by a combination of two causes, and the defendant's act remains "an
operating and a substantial cause", then the defendant will still be liable.
R v Malcherek (1981) 73 Cr App R 173. The defendant attacked a woman causing injuries that
were so severe that the victim had to be placed on a life support machine. Doctors decided to
switch off the machine after determining that the victim was "brain dead" and that there was no
prospect of recovery. Half an hour later the victim was pronounced dead. The defendant
was convicted of murder and appealed on the ground that the doctors had broken the
chain of causation between the defendant's attack and the death of the victim by
deliberately switching off the life support machine. The Court of Appeal held, dismissing
the appeal, that the operating and substantial cause of death had been the original
wounds inflicted by the defendant. The effect of the life support machine was merely to
hold the effect of the injuries in suspension; as soon as the machine was switched off
the original wounds continued to cause the death of the victim, even if death followed
within seconds of the machine's disconnection.
(ii) Natural consequences of the Defendant's act
The victim may die as the result of some act or event which would not have occurred
but for the act done by the defendant and which is a natural consequence of the
defendant's act - that is, it was foreseeable as likely to occur in the normal course of
events. In such a case, the defendant will still be held to have caused the death.
For example, a man is attacked and left lying in the road. The attacker will be
responsible for the death if the man dies from loss of blood, exposure, an infection of
the wounds, or if he is run over by a car. However, the defendant would not be liable if
the man was struck by lightening, killed by another assailant or killed by a collapsing
building during an earthquake.
Human intervention, where it consists in a foreseeable act instinctively done for the
purposes of self-preservation, or in the execution of a legal duty, does not break the
chain of causation:
R v Pagett (1983) 76 Cr App R 279. The defendant, to resist lawful arrest, held a girl in
front of him as a shield and shot at armed policemen. The police instinctively fired back
and killed the girl. The Court of Appeal held that the defendant's act had caused the
death and that the reasonable actions of a third party by way of self-defence could not
be regarded as a novus actus interveniens (new act intervening). The defendant had
caused the death as the intervening act had been a foreseeable consequence of his
action and had not broken the chain of causation. The defendant was liable for
manslaughter.
(iii) Characteristic of the victim
If the intervening act is a characteristic of the victim then it does not have to be
foreseeable and will not break the chain of causation. The "Thin Skull" Rule, which
provides that a defendant must take his victim as he finds him, will apply. That is, if D
hits V on the head with the degree of force that would usually cause nothing more than
slight bruising, but because V has an unusually thin skull causes V to suffer a fractured
skull and brain damage, D cannot rely on evidence of V's physical shortcomings to
show the chain of causation has been broken. For example:
R v Hayward (1908) 21 Cox CC 692. A man chased his wife into the street shouting
threats and kicked her. She collapsed and died from a thyroid condition which made her
peculiarly susceptible to physical exertion and fear. He was convicted of manslaughter.
Similarly, if D attacks V, and V dies because he chooses not to seek medical treatment,
the chain of causation will not be broken, both because V was under no duty to seek
help, and because D must take his victim as he finds him:
R v Blaue (1975) 61 Cr App R 271. The defendant had stabbed the victim, who was a
Jehovah's Witness, 13 times, and she was rushed to hospital where doctors told her
that she would die if she did not have a blood transfusion. The victim refused on
religious grounds and died from her wounds shortly after. The defendant was convicted
of manslaughter (on grounds of diminished responsibility) and appealed on the ground
that the victim's refusal of treatment, being unreasonable, had broken the chain of
causation. Lawton LJ held that the defendant had to take his victim as he found her,
meaning not just her physical condition, but also her religious beliefs. The defendant
could not argue that his victim's religious beliefs which inhibited her from accepting
certain kinds of treatment were unreasonable. The question for decision was what
caused the death. The answer was the stab wound.
R v Dear [1996] Crim LR 595. The defendant had slashed the victim repeatedly with a
Stanley knife following allegations by the defendant's 12 year old daughter that the
victim had sexually interfered with her. The victim died two days later. The defendant
appealed against his conviction for murder, arguing that the chain of causation had
been broken because the victim had committed suicide either by reopening his wounds
or because he had failed to take steps to staunch the blood flow after the wounds had
reopened themselves. The defendant claimed that the suicide constituted a novus actus
interveniens (new act intervening) and that the judge's direction to the jury that the
defendant caused the death if "firstly... [the victim] took that action because of the
wounds... secondly... he would not have done so unless he was wounded" was wrong.
Dismissing the appeal, the Court of Appeal cited Smith (1959), Blaue (1975), Malcherek
(1981) and Cheshire (1991) and held that the real question was whether the injuries
inflicted by the defendant were an operating and significant cause of/contribution to the
death. It would not be helpful to juries if the law required them to decide causation in
cases such as the present by trying to distinguish between the victim's mere self-neglect
(no break in the chain) and the victim's gross self-neglect (break in the chain). Here the
victim's death resulted from bleeding from the artery which the defendant had severed.
Whether or not the resumption or continuation of that bleeding was deliberately caused
by the victim, the jury were entitled to find that the defendant's conduct made an
operative and significant contribution to the victim's death.
D) Death caused by medical treatment
Another set of cases where causation problems arise are those concerning negligent
medical treatment of the original injury in homicide cases. The courts have decided in
what circumstances the medical treatment received by a victim, following an attack by
the defendant, will relieve him of liability for homicide if the victim subsequently dies.
R v Jordan (1956) 40 Cr App R 152. The defendant stabbed the victim who was
admitted to hospital and died eight days later. In the Court of Appeal, the fresh evidence
of two doctors was allowed to the effect that (a) in their opinion death had not been
caused by the stab wound, which was mainly healed at the time of the death, but by the
medical treatment; (b) the victim had been given an anti-biotic to which he was allergic
and large amounts of intraveneous liquid; and (c) this treatment, according to the
evidence, was "palpably wrong", and the direct and immediate cause of death
(pneumonia). The court held that the stab wound was merely the setting within which
another cause of death operated, and quashed the conviction. They held that a jury
might not have been satisfied that the death was caused by the stab wound had they
had all the medical evidence and expert opinion.
Jordan was distinguished by the Court of Appeal in R v Smith [1959] 2 QB 35, as a
"very particular case depending upon its exact facts".
R v Smith [1959] 2 QB 35. The defendant was involved in a fight with a fellow soldier
during which he stabbed the victim twice with a bayonet, resulting in the victim being
taken to the medical station where he died about one hour later. On being charged with
murder the defendant argued that the chain of causation between the stabbing and the
death had been broken by the way in which the victim had been treated, in particular the
fact that: (a) the victim had been dropped twice whilst being carried to the medical
station; (b) the medical officer, who was dealing with a series of emergencies, did not
realise the serious extent of the wounds; and (c) the treatment he gave him was
"thoroughly bad and might well have affected his chances of recovery". The defendant
was convicted of murder and appealed unsuccessfully. The court held that the
defendant's stabbing was the "operating and substantial cause" of the victim's death. In
this case the victim clearly died from loss of blood caused by the stab wounds inflicted
by the defendant. Only if the original wound could be said to have merely provided the
setting in which another cause of death operated could it be said that the death did not
result from the wound.