Case progression: Court for Crown Cases Reserved – Guilty
Point of law: Whether a third party could break the chain of causation when uninformed as to their actions
In R v Michael (1840) 9 C & P 356, the defendant desired her baby dead and handed a bottle of laudanum (poison) to a nurse, telling her that it was medicine for the baby. The nurse regarded the medicine as unnecessary and placed it on the mantelpiece unaware that it was poison. The nurse’s child, aged five, picked up the poison and administered it to the baby. The baby died as a result.
The Court held that the mother remained the legal cause of death. This was despite the actions of the five-year-old who was described by the Court as ‘an unconscious agent’, thus not resulting in a break in the chain of causation.
The case of Michael is an authority on two points. The first being the so-called ‘intended results’ cases where a defendant is liable where they intended a result and that result occurs. This shall be discussed in greater detail in Chapter 3, but for now it is worth stating that despite the manner of death of the child, the end result of death was as the defendant desired. Hart and Honoré in their text, Causation in the Law, 2nd edn (OUP, 1985) do not take this view and argue that the ‘intended result’ did not occur. The true intended result was for the nurse to administer the deadly substance, not the child. Specifically, the pair state that the child was ‘not in any sense an agent, conscious or unconscious, of the mother, who intended [X] alone to give the poison to the child’.
The second point is that which we are more concerned with, namely whether the act of the child was a novus actus interveniens. The Court was clear that the actions of the child could not amount to a new and intervening act. Hart and Honoré go on to say that ‘the decision may be justified on the ground that … the act of the child of five did not negative causal connexion between the prisoner’s act and the death’. Essentially, given that the child was an ‘innocent agent’ (as a result of her age) and being uninformed of the poisonous substance, her actions could not amount to a ‘free, deliberate and informed’ intervention. Should the child have drunk the substance, as opposed to administering it to the victim, the doctrine of transferred malice (see Chapter 3) would operate to maintain the liability of the defendant.
That is the first element for you to consider when faced with an intervention from a third party. Ensure that you are clear in any answer given whether the third party is truly acting in a ‘free, deliberate and informed’ manner. If they are, you may then consider the second element; namely, whether the defendant remains the ‘operating and substantial’ cause.
Operating and substantial cause
This principle is merely a reflection of that considered above in legal causation. Essentially, the defendant must remain the imputable, or legal, cause of the end result. In R v Rafferty [2007] EWCA Crim 1846, the Court of Appeal quashed a defendant’s conviction for manslaughter on account that his co-defendants (who were convicted of murder) had broken the chain of causation by inflicting further injuries on the victim and leaving him in a dangerous state in the absence of the defendant. Rafferty is one of those few cases in which the chain of causation has been broken by an act of a third party.
A useful way to demonstrate this particular area of law, and its development, is by looking at two different examples:
(i) cases involving driving offences; and
(ii) cases involving medical intervention.
(i) Driving cases
This first sub-section is justified on account that a common feature of accidents and collisions on the road is the attempt to pass blame. By way of a simple example, Jack is driving his car at speed and tailgates a car driven by Jill. Suppose Jill applies the brakes without due cause and Jack collides into the back of Jill’s car, killing Andy who was sat in the back seat. Who is responsible for Andy’s death? Jill for applying the brakes without reason, or Jack for tailgating at speed and ultimately colliding with Jill?
The point to appreciate here is that, as noted above, there may be multiple causes of the same end result. We need to consider, however, what the circumstances are where one party can legitimately pass blame from themselves to another. The test to be applied in these circumstances is whether the subsequent conduct of the third party is ‘reasonably foreseeable’ to the defendant (R v Girdler [2009] EWCA Crim 2666). In Girdler, the defendant had driven into the back of a taxi. The collision resulted in the taxi being propelled into the fast lane leaving it broadside to the oncoming traffic. A car in the fast lane collided with the taxi, killing both the driver of the car and the taxi. The issue for the jury was:
•Who was responsible for the death of the driver of the car?
•Who was responsible for the death of the taxi driver?
The jury found no difficulty in concluding that the defendant had caused the death of the driver of the car, through his dangerous driving that propelled the taxi into the fast lane. However, the jury could not be sure that the defendant was responsible for the death of the taxi driver, given that there was a subsequent act (ie the act of the driver of the car) which caused the fatal accident. The appeal itself is not relevant for our purposes. Rather, it was the conclusion of the Court in reviewing the existing area of law. In particular, the Court departed from the ‘free, deliberate and informed’ test noted above on the basis that (per Hooper LJ)
offences of causing death by dangerous and careless driving will punish the conduct of a person who has not intended or necessarily foreseen the consequences of his driving. Such a person is in a very different position to a person who has intended to kill or cause serious bodily harm or who has the mens rea for manslaughter.
Hooper LJ would go on to state what he believed the appropriate direction to the jury could be:
We suggest that a jury could be told, in circumstances like the present where the immediate cause of death is a second collision, that if they were sure that the defendant drove dangerously and were sure that his dangerous driving was more than a slight or trifling link to the death(s) then:
the defendant will have caused the death(s) only if you are sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur.
The judge should identify the relevant circumstances and remind the jury of the prosecution and defence cases. If it is thought necessary it could be made clear to the jury that they are not concerned with what the defendant foresaw. (emphasis added)
Girdler is therefore authority for two propositions: (a) the test is one of reasonable foreseeability; and (b) the subsequent act need not be ‘free, deliberate and uninformed’ to break the chain of causation; it may be an accidental or unintended intervention that breaks the chain (so long as it was not reasonably foreseeable).
A question that naturally leads on from Girdler, however, is this: What must be reasonably foreseen? This was the issue in the recent case of R v A [2020] EWCA Crim 407. In summary, the defendant had parked her car on the hard shoulder of a motorway for no legitimate purpose. The car displayed no hazard lights, or any other car lights. A lorry driven by the second defendant, who had fallen asleep behind the wheel, traversed from the outside lane of the motorway to the hard shoulder and collided with the defendant’s car, killing one of the passengers.
At trial, the judge ruled that in order for the chain to be maintained, the defendant must have reasonably foreseen the particular subsequent act that could have followed (ie that a lorry would have travelled across numerous lanes of the motorway and collided with the defendant’s car). The trial judge reached this conclusion on account that, in Girdler, Hooper LJ used the phrase ‘in the circumstances in which the second collision did occur’. As such circumstances were not