Justifying it on policy grounds, the Lords effectively created confusion in the law with the lower courts unsure as to which authority to follow: Latif or Empress Cars? Thankfully, the House of Lords in R v Kennedy (No 2) [2008] 1 AC 269 clarified the legal position of the Empress Cars precedent. Lord Bingham made clear that, although the House did not wish ‘to throw any doubt’ on the Empress Cars authority, it ought to be restricted to facts involving environmental offences (see R (Natural England) v Day [2014] EWCA Crim 2683 for an affirmation of this). As a result, therefore, in all cases, other than pollution cases, involving the act of a third party, the test to be applied is that in Latif. Upon the statement in Kennedy, Ashworth (Principles of Criminal Law, 6th edn (OUP, 2009)) helpfully restated the principle of Latif, namely that
voluntary conduct acts as a barrier in any causal enquiry in criminal law; by and large, D’s voluntary conduct will usually be regarded as the cause of an act or omission if it was the last human conduct before the result.
Therefore, we can now be settled in our minds that the act of a third party will only break the chain of causation in circumstances where it is ‘free, deliberate and informed’ and the defendant is no longer the ‘substantial and operating’ cause. However, what exactly do these phrases mean? We shall consider each in turn.
‘Free, deliberate and informed’
Table 2.11Free, deliberate and informed acts
| Principle | Explanation | Example |
| Free | When we speak of ‘free’ conduct, we are concerned with circumstances where the third party is not acting in a justified or excused manner or where their actions are not a natural or foreseeable consequence of the defendant’s actions. | R v Pagett (1983) 76 Cr App R 279 |
| Deliberate | When we speak of ‘deliberate’ conduct, we are referring to ‘voluntariness’ and are concerned with whether the third party’s actions were willed. | Wise v Dunning [1902] 1 KB 167 |
| Informed | When we speak of ‘informed’ conduct, we often refer to so-called ‘innocent agents’. Innocent agents may be doli incapax, insane or have no mens rea. | R v Michael (1840) 9C&P356 |
With these principles in mind, let us now look at the three cases listed in turn. First, the act must be ‘free’.
case example
Charge: Unlawful act manslaughter
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Whether a third party can break the chain where their actions are foreseeable as a result of the defendant’s conduct
In R v Pagett (1983) 76 Cr App R 279, the defendant abducted the victim, his pregnant girlfriend, and used her as a ‘human shield’ when confronted by the police. The defendant fired at the police who then returned fire, killing the victim in the process. The defendant was charged with and convicted of constructive manslaughter, which was upheld in the Court of Appeal.
The Court of Appeal ruled that the officers had acted ‘involuntarily’ and in a manner that was not ‘free’. The Court reasoned that the officers had acted reasonably for the purpose of ‘self-preservation’ and in performance of their legal duty to apprehend the defendant. The defendant remained the legal cause of death through his unlawful act.
Pagett is a demonstration that the courts take a broad interpretation of what conduct is ‘free, deliberate and informed’. To this extent, the court can find that the chain of causation is broken in circumstances where they feel it is ‘just’ for it to be broken. Cases involving police officers performing their duties are clearly not in this bracket, which Ormerod and Laird (Smith, Hogan, & Ormerod’s Criminal Law, 15th edn (OUP, 2018)) argue has ‘compromised’ the principles of legal causation. Such application of legal principles has led to many academics criticising the courts for their inconsistent and arbitrary judgments based very much on a ‘desired conclusion’ basis. Indeed, Williams (Textbook of Criminal Law, 2nd edn (Sweet & Maxwell, 1983)) describes the judiciary’s use of legal causation as a ‘moral reaction’ whereby the courts seek certain ‘desired’ results.
In Pagett, it is clear that the officers did not intentionally or deliberately shoot the victim. Rather, they were responding to shots fired by the defendant. It is questionable whether the officers acted reasonably in firing back at the defendant; however, this point is moot given that it would make no difference to the outcome of the case. In summary, the police officers acted in a manner that was ‘deliberate and informed’ but was not ‘free’, in that their actions were a natural and foreseeable consequence of the defendant’s conduct. In this regard, the police officer’s conduct did not break the chain of causation.
Secondly, the act must be ‘deliberate’/‘voluntary’.
case example
Charge: Breach of the peace
Case progression: Magistrates’ court – Bind over
Divisional Court – Bind over upheld
Point of law: Whether the actions of a third party can break the chain where they ‘appear’ voluntary
In Wise v Dunning [1902] 1 KB 167, the defendant, a Protestant preacher, gave anti-Catholic speeches in Liverpool which he knew would cause the audience to react violently, which they did. The magistrates’ court bound him over (ie had him agree) to keep the peace which he then breached.
The defendant appealed by way of ‘case stated’ to the Divisional Court, arguing that he should not be liable for any breach of the peace caused by a third party. The Divisional Court ruled that the violence arose as a ‘natural consequence’ of the defendant’s actions.
Dunning is a complex case involving both substantive and procedural points of law. Dunning has been used as an example here to demonstrate that the actions of third parties (ie the members of the crowd) will not break the chain of causation where their actions are not ‘voluntary’. You may think this idea sounds absurd. Herring (Criminal Law: Text, Cases, and Materials, 9th edn (OUP, 2020)) agrees and argues that this case stretches the meaning of ‘voluntary’ to its extreme. The easiest way to appreciate this decision is to break it down into a common sense understanding:
•The violence erupted as a result of the defendant’s actions in making the speech.
•The defendant knew the crowd would react violently.
•The reaction to turn to violence was ‘instinctive’ and without thought on the part of the crowd.
Have you ever acted without thought? Become so angry or upset that you say or do something out of character? That was the position here, and although it may be considered a stretch in meaning, it is a useful demonstration of the meaning of voluntary.
Finally, the act must be ‘informed’.