Let us take another example.
example
Jack pushes Andy off a 3ft high wall. In the majority of cases, this is unlikely to cause an individual significant harm. Andy, however, suffers from a thin skull and is severely injured upon falling. Jack remains liable for the injuries to Andy despite the fact that such an action would not have had such a great effect on another person, such as Jill.
There may be many circumstances that result in a victim’s heightened vulnerability, for example:
•old age;
•young age;
•brittle bones;
•haemophilia;
•thin skull, etc.
What the examples above provide us with is a decent picture of the operation of the law (see R v Hayward (1908) 21 Cox CC 692 – concerning a thyroid condition). However, such examples have been intentionally restricted to ‘physical’ vulnerabilities to allow us to question the extent to which the principle operates. As a result of the decision in R v Blaue [1975] 1 WLR 1411, the principle is clearly capable of an extremely wide application.
case example
Charge: Murder
Case progression: Crown Court – Not guilty of murder; guilty of manslaughter
Court of Appeal – Conviction upheld
Point of law: Thin skull rule applies to religious or holistic beliefs
In R v Blaue [1975] 1 WLR 1411, the victim was a Jehovah’s Witness and refused a blood transfusion on religious grounds after being stabbed by the defendant. The victim died and Blaue was charged with and acquitted of murder. However, the defendant was found guilty of manslaughter.
The Court of Appeal upheld the conviction, ruling that the victim’s susceptibilities need not be physical, but may be more holistic in character also. In particular, Lawton LJ commented:
It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that the victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable.
In the older case of R v Holland (1841) 2 Mood & R 351, the defendant cut the victim’s finger and the wound became infected. The victim refused to accept medical advice, and as a result developed lockjaw and died. The Court concluded that the original wound remained the substantial and operating cause, and the victim’s conduct did not break the chain of causation. Blaue relied on and affirmed the decision of Holland.
As a result of Blaue, which followed R v Holland, it is questionable to what extent the principle now extends. The principle could now effectively cover susceptibilities of all kinds and natures. For example, vulnerabilities could now be:
•physical;
•emotional;
•psychological; or
•holistic/religious.
The case led to strong criticisms from the likes of Williams (‘Criminal Law – Causation’ [1976] CLJ 15), who argued that it was ‘absurd’ to convict an accused for murder in circumstances where the victim had unreasonably refused treatment, thus resulting in death. Williams furthers this by explaining that a defendant in most cases can be convicted of a lesser offence, such as wounding in Blaue, and the public interest in securing a conviction and imprisoning a wrongdoer would be served. This is furthered by Klimchuk (‘Causation, thin skulls and equality’ (1998) 11 Canadian Journal of Law and Jurisprudence 115), who suggests that the test should not apply ‘where the outcome would offend common sense’.
So where, then, does one draw the line? Should it be the case that the defendant must take his victim as he finds him with regard to any of the above susceptibilities? Jefferson (Criminal Law, 12th edn (Pearson, 2015)) helpfully suggests that
the ‘take your victim’ test should not apply where the outcome would offend common sense; therefore, if the victim has acted in a ‘daft’ manner the accused should not be guilty of the offence charged, though he may still be guilty of a lesser offence or of the attempt.
Such appears to be a logical solution and accords with the view of Child and Ormerod (Smith, Hogan, & Ormerod’s Essentials of Criminal Law, 3rd edn (OUP, 2019)), who argue that it would be taking the thin skull rule ‘too far’ where the victim acts in a way which causes further harm, and ‘it is better to restrict it to cases where the victim does not do anything to make their condition worse’.
2.9Putting it all together
Consider the following issue and think how you may structure an answer to it. Then see the figure below for a sample structure to adopt.
facts
Jack is a lifeguard at the local swimming pool. Jack is employed by the local council to watch over those members of the public who frequent the pool. One day, Jack is distracted by his girlfriend, Jill, whilst a young boy, Andy, struggles to swim. Eventually Jack realises that Andy is struggling and dives into the pool to rescue him. Andy is unconscious and is not breathing. Jack calls an ambulance which arrives within a few minutes and takes Andy to hospital. Andy dies at the hospital.
Jack, upset at what happens, decides to leave work early that day and go to the local bar. On the way to the bar, Jack hits Ben with his car. Jack was driving rather erratically at the time.
Would your answer differ if:
(a) On the way to the hospital, Bill, the driver of the ambulance, crashed the ambulance as a result of his negligent driving, killing Andy before he makes it to the hospital?
(b) Jack’s driving could not be faulted and in fact the car accident was entirely Ben’s fault? Evidence shows that Jack would not have been able to avoid hitting Ben.
Figure 2.9Putting together actus reus
2.10Further reading
Actus reus generally
Doeggar, ‘Strict Liability in Criminal Law and Larsonneur Reassessed’ [1998] Crim LR 791.
Glazebrook, ‘Situational Liability’ in Glazebrook (ed), Reshaping the Criminal Law (Sweet & Maxwell, 1978).
Hart, ‘Acts of Will and Responsibility’ in Hart (ed), Punishment and Responsibility: Essays in the Philosophy of Law (OUP, 1968).
Husak, ‘Does Criminal Liability Require an Act?’ in Duff (ed), Philosophy and the Criminal Law (CUP, 1999).
Lynch, ‘The Mental Element in the Actus Reus’ (1982) 98 LQR 127.
Omissions
Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424.
Ashworth, ‘A New Generation of Omissions Offences’ [2018] Crim LR 354.
Glazebrook, ‘Criminal Omissions: The Duty Requirements in Offences Against the Person’ (1960) 76 LQR 386.
Kennedy, ‘Switching Off Life Support Machines: The Legal Implications’ [1977] Crim LR 443.