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Simple notes on Causation
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Simple and concise notes on Transferred Malice and Mistake with relevant case law
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Criminal LawLecture 3 – Causation
General principles – legal causation
- Application of the ‘but for’ test which indicates whether or not the specified
consequence can be attributed to Ds conduct as a matter of fact
- It can be, the question of whether that death can be attributed to D for the purposes
of legal liability depends on whether or not Ds conduct is a legal cause of the
specified consequences
- Only if it is can that consequence be attributed to them for that purpose – was their
conduct a legal cause of the specified consequence of the harm
Consequence must be attributed to a culpable act
- If the culpable act D performed did not contribute to the consequence legal
causation will not be established
Dalloway (1847) 2 cox cc 273
- D was driving a cart when a child ran into the road a few yards in front of the horse
- The child was hit by one of the wheels and died
- At the time D was driving that cart carelessly because the reins were not in his hands
- The jury were directed that if D had held of the reins and could have avoided killing
the child he was guilty of manslaughter but if he could not have done so either by
using the reins or otherwise, then he was not guilty
- Jury acquitted him satisfied that the child’s death could not have been avoided
regardless of being grossly negligent in performing the act of not holding the reins
while driving
This judgement was overlooked when a new offence created by s 3ZB of the Road Traffic Act
1998 – added by s 21(1) of the Road Safety Act 2006
- Causing death by driving without an appropriate licence or when uninsured – 2-year
penalty
Williams (2010) –
- Driving without a licence or insurance when V had stepped out in front of this vehicle
without looking
- Accepted that D could not have done anything
- Court didn’t pay attention to legal causation which led to the conclusion that Vs
death was caused by her own actions
- CoA offence would be committed without proof of any fault on part of D in relation
to his driving
Decision in Williams was followed in Hughes (2011)
- D was driving a campervan on a main road in good conditions.
, Criminal Law
- He was driving faultlessly when V, driving a car, veered across the road and collided
with him. D and his family survived the collision, but V died.
- V had been driving a long distance following a series of 12-hour night shifts and was
driving under the influence of heroin; his driving prior to the collision had been
erratic.
- D, however, had no insurance and only a provisional driving licence.
- Although his driving was faultless, and he could not have avoided the collision he
was prosecuted for the s. 3ZB offence.
- At his trial it was submitted on D’s behalf that he could not be convicted as he had
not caused the death of V.
- The Recorder of Newcastle ruled in his favour on this point but the Crown appealed
this ruling and the Court of Appeal, considering itself bound by the decision in
Williams, held that the prosecution did not have to prove any element of fault on the
part of D, it being sufficient that he had merely been involved in the collision as this
amounted in law to his causing the death.
- D appealed to the Supreme Court which unanimously allowed the appeal ([2013]
UKSC 56).
Supreme court –
It is certainly true that an uninsured person ought not to be driving at all, … but … [t]o say
that he is responsible because he ought not to have been on the road is to confuse criminal
responsibility for the serious offence of being uninsured with criminal responsibility for the
infinitely more serious offence of killing another person. The criminal law is well used to
offences of which there are aggravated forms carrying additional punishment where greater
harm has been done …. But ordinarily, the greater punishment is linked to additional harm
which is caused by a culpable act on the part of the defendant. In the case of section 3ZB, it
is not. [Emphasis added]
- The Supreme Court took the view that while D’s driving created the opportunity for
his car to be run into by V, ‘what brought about [V’s] death was his own dangerous
driving under the influence of drugs’.
- The Court emphasised that penal statutes should be construed with a degree of
strictness in favour of D (see 4.2.3). Unambiguous language would be necessary to
exclude the normal approach to causation.
- t follows from the expression ‘causes … death … by driving’ that if D is to be liable to
conviction for the s. 3ZB offence there must be some act or omission in the control
of the car that involves some element of fault, ‘something in the manner of his
driving which is open to proper criticism … which contributed in some more than
minimal way to the death’ (at para. 32).
The culpable act must be a more than minimal cause of consequence –
see also Dyson (1908) and Hennigan (1971)
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