Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.
From the above authorities, it is clear that the chain of causation is unlikely to be broken in circumstances involving poor medical treatment. The decision in Cheshire has been criticised as illogical and policy-driven, given that act of the defendant was not the ‘immediate’ cause of death but, rather, the medical intervention was. As Jefferson (Criminal Law, 12th edn (Pearson, 2015)) makes clear, the defendant was held to have ‘significantly contributed’ to the death despite the fact that the victim was shot in the leg and chest, but died as a result of the narrowing of his throat. Despite these criticisms, the decision of Cheshire has subsequently been followed in such cases as R v McKechnie (1991) 94 Cr App R 51 and R v Mellor [1996] 2 Cr App R 245.
in practice
Think about the justification for the decision in Cheshire practically. The courts do not wish to accept an argument from an accused that, as a result of poor medical treatment, he is not liable for the act that necessitated the medical intervention in the first place. Indeed, the meaning of ‘so independent’ and ‘so potent’ remains unclear, granting the courts a wide amount of discretion to deal with cases on a fact-by-fact basis. Jefferson (Criminal Law, 15th edn (Pearson, 2015)) argues that the ruling ‘would seem to be one which protects medical staff from the consequences of their carelessness’; others such as Stannard (‘Criminal Causation and the Careless Doctor’ (1992) 55(4) MLR 577) argue, however, that medical treatment cannot be regarded as ‘abnormal’ given the pressures placed on emergency units.
Whatever the argument, one cannot deny that policy had a great impact upon this decision and demonstrates, as Ormerod and Laird (Smith, Hogan, & Ormerod’s Criminal Law, 15th edn (OUP, 2018)) argue, that the ‘status of the third party’ may well affect whether the chain of causation is broken (as also seen in Pagett above).
The statement of law is now clear: Although a break in the chain of causation is possible, following Jordan, medical intervention is unlikely to break the chain and, following Cheshire, will only do so where the intervention is ‘so independent … and in itself so potent in causing death, that [the jury] regard the contribution made by [the defendant’s] acts as insignificant’.
As a final note, according to the Court of Appeal in R v Suratan [2004] EWCA Crim 1246, juries require careful guidance on the issues before them, especially when they are required to decide the cause of death and whether medical treatment was so ‘palpably wrong’ that the defendant is no longer the substantial and operating cause of death. See also R v Dear [1996] Crim LR 595 and McKechnie. Be aware, however, as with all expert evidence, the jury are entitled to ignore it (R v Stockwell (1993) 97 Cr App R 260).
in practice
Do not confuse the effects that Smith and Cheshire had on the decision in Jordan. Jordan remains good law and is an authority that you can use to argue that the chain of causation is broken. Use the facts of Jordan to assist you, and if the facts are similar (ie a wound had largely healed and the treatment so palpably wrong), use them to suggest that the chain is broken. Ensure you substantiate why you think the chain is broken and battle against the arguments that suggest the chain remains intact.
An interesting application of the rule in Smith, and later in Cheshire, is the decision in R v Malcherek; R v Steel [1981] 2 All ER 422, which concerned the switching off of a life support machine several days after the defendant had inflicted serious wounds upon the victim. The defendant argued that the act of the doctor in disconnecting the life support machine had broken the chain of causation and caused the death of the victim. The defendant argued that this was so despite the injuries inflicted. Lord Lane CJ in the Court of Appeal concluded:
There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.
The defendant, therefore, remained the operating and substantial cause of death, with Herring (Criminal Law: Text, Cases, and Materials, 9th edn (OUP, 2020)) commenting that, ‘After all, what did the victim die from when the machine was switched off, if not the injuries inflicted by the defendant?’ Again, it would appear as though policy and good sense dictates the flow of this area of law with Jefferson (Criminal Law, 12th edn (Pearson, 2015)) quite usefully summarising that the ‘courts seem to be pulling the law on causation to exculpate doctors and the police in order to catch the attacker’.
An interesting point that arises here and relates back to our discussion of omission liability concerns whether the withdrawal of treatment is an act or an omission. Kennedy (‘Switching Off Life Support Machines’ [1977] Crim LR 443) points out that the withdrawal of treatment may be considered an act (by physically turning off the life support machine) or an omission (by failing to continue to provide treatment). The distinction in this case is essentially moot given that we are concerned with the medical intervention and whether such would break the chain of causation; however, it may be relevant when one considers whether an omission can be ‘free, deliberate and informed’.
Omissions and intervening acts
The final point worthy of consideration here is whether an omission of a third party, as opposed to a positive act, can break the chain of causation. Herring, Criminal Law: Text, Cases, and Materials, 9th edn (OUP, 2020) suggests not and explains:
If the defendant stabbed the victim, who was taken to hospital but died because no medical treatment was offered, then the defendant would be said to have caused the death.
Indeed, this view has particular merit on account that the defendant in this situation would still be considered the substantial and operating cause of the end result. It is debatable how far this view can go, however. Suppose Jack pushes Jill into deep water knowing that she cannot swim. Bob is the acting lifeguard on that day, notices Jill struggling and ignores her. Jill drowns. In this circumstance, can it be said that Jack will remain the cause of Jill’s death (given that he pushed her into the pool), or will Bob have broken the chain of causation given that he had a duty to act (a contractual duty as a lifeguard) and failed to do so? This is especially pertinent if Jack knew that Bob was on duty: is it appropriate to make Jack liable in these circumstances? Ultimately, this would be a question of fact for the jury, but it is worthwhile to note that an omission may be capable of breaking the chain of causation, in the eyes of a jury, in certain circumstances.
2.7.3.3Act of the victim
The second circumstance where the chain of causation may be broken is as a result of the victim’s own act. The victim’s act may break the link between the original act of the defendant and the end result. There are three key scenarios worth considering under this heading:
(1) The victim may bring about the end result in attempting to escape from the defendant. These cases are often referred to as ‘fright and flight’ cases and look to see whether the acts of the victim are foreseeable or