The crimminal liability of Des
Des mistakes Vic fro Tim, a man with whom Des's wife has been having an affair. He stabs Vic in the chest and leaves him for dead. Vic crawls to a telephone and summons an ambulance. He is taken to a hospital where Dr. Finlay succeeds in stopping the bleeding. Vic is told that he needs a blood transfusion, but refuses because he is afraid of needles. Dr Finlay assures Vic that his wishes will be respected but omits to make a formal record of Vic's refusal. The following day Jane, another doctor, approaches Vic carrying the large needle to insert the drip for transfusion. Vic panics on seeing the needle and jumps from his hospital bed. He is so weak from loss of blood that he has a heart attack and dies.
The Essay
The present factual scenario calls attention to the way the law deals with the issue of causation in criminal offences. Causation is a key element of all result crimes. It is the offence of murder, however, which most usefully serves to highlight the legal principles surrounding causation.
In the present factual scenario Des is quite clearly potentially liable for the murder of Vic. Like with most criminal offences, it must be shown that Des carried out the actus reus of murder as well as the fact that he had the necessary mens rea of the offence in order to establish that he is guilty.
The actus reus of murder is basically causing the death of a human being. Of course, in the present scenario, Vic was quite clearly a human being at the time of the stabbing for the purposes of the criminal law, and we are told for a fact that he is now dead. The actus reus in this instance does not, then, raise any legal issues in and of itself. The mens rea of murder is either intention to kill or intention to cause grievous bodily harm. It is safe to assume from this scenario that Vic intended to kill or cause grievous bodily harm to Tim, as he stabbed Vic mistaking him for Tim and 'left him for dead'. This suggests that he intended to kill Tim. Prima facie, then, he has the necessary mens rea for the offence. However, Des intended to kill Tim, not Vic. Does this mean that he does not have the necessary mens rea for the murder of Vic? The way the law has tackled with this issue is by applying the principle of transferred malice. In Wrigley , for example, the defendant intended to enter No.6 King Street to steal, but in the dark he mistakenly entered No.7 . It was held that he was still guilty of burglary. Therefore, if Des intended to stab and kill Tim, as we can infer that he did, then he is guilty of murder even though he mistakenly stabbed and killed Vic.
It is not, however, been established that Des caused Vic's death. Had Vic died instantly, then of course causation would not be an issue. In the present factual scenario, however, we see that several events intervene in the period between the moment Des stabbed Vic and the moment Vic dies. The criminal law, as we shall see, has several mechanisms in place to define what in law can be held to cause a particular result and what cannot. First of all, in cases of murder, the law has developed what is known as the de minimis principle. This principle has come about because the law recognises the fact that everyone is in the process of dying from the moment he or she is born. Therefore, when we talk about killing someone, what we mean, technically, is not that we are causing their death, as this would have come about sooner or later anyway, but rather that we are accelerating it. in Dyson , Lord Alverstone CJ held that:
"The proper question to have been submitted to the jury was whether the prisoner accelerated the child's death by the injuries which he inflicted in December, 1907. For if he did the fact that the child was already suffering from meningitis from which he would in any event have died before long, would have afforded no answer to the charge of causing its death".
In the present scenario, then, can it be said that Des accelerated Vic's death? Of course, as Lord Alverstone CJ held above, this is a question that needs to be submitted to the jury; nevertheless it is submitted that there is strong evidence that Des did indeed accelerate Vic's death, as it is unlikely that Vic would have died on the following day had it not been for the injuries inflicted by Des.
The law has several other principles which the jury must apply in deciding whether the defendant's actions caused the victim's death.
The first of these is known as the 'but for' test, and was established in the case of White . Here, the defendant gave his mother poison, but somehow she died before the poison took effect. It was held that the defendant had not caused the victim's death, as it could be said that but for the fact that the son administered the poison the mother would not have died. This, however, is not a sufficient test in itself. This is because, for example, there are many situations where but for the actions of x, y would not have died, yet nevertheless you could not say that x caused y's death. If, for example, x was y's boss, and send him on a delivery, and in the course of making the delivery y has a traffic accident and dies, no one would say that x killed y. Nor would the law have considered him to have caused y's death.
Therefore even if the facts satisfy the but for test and establish factual causation , it must also be shown that the defendant caused the victim's death in law. Legal causation can be proven in a combination of 3 ways. Firstly is what has been described as the principal of 'operative and substantial cause'. Under this principle it must be shown that at the time of the victim's death the injuries inflicted by the defendant on the victim were an operative and substantial cause of death.
In Smith , for example, a soldier was stabbed in barrack room brawl. He was then dropped twice on the way to the medical officer and, upon getting there, there was a long delay as the medic mistakenly thought that the situation was not critical The soldier died. It was held that the intervening act of dropping the soldier on the way to the medic, and the medical officer's delay had not broken chain of causation, and that the injuries inflicted by the defendant were still an "operative and substantial" cause of the soldier's death.
In Malcherek v Steele , two defendants attacked a man, inflicting injuries which resulted in the victim going into a coma. Tests showed that he was approximately 70% brain dead, so the victim's family decided to switch off the life support machine. The defendant argued that this constituted an intervening act which broke the chain of causation. The Courts held that the jury must ask itself whether the doctor had done palpably wrong. If they thought the doctor had not done palpably wrong, then the chain of causation was not broken and the defendant was legally held to have caused the victim's death.
In Cheshire , the defendant shot a man in the leg and in the stomach. The victim was taken to hospitable where he was placed in the intensive care unit where his injuries were operated on. Whilst in the intensive care unit he received negligent care, as a result of which complications arose from which the defendant consequently died. When he died the original wounds were no longer life threatening. The courts held that the question the jury members should ask themselves was: "Has the Crown proved that the injuries inflicted by the defendant were a significant cause of death?"
Moreover, the Court held that medical negligence could only break the chain of causation if:
1. it was so independent of the defendant's acts and;
2. such a powerful cause of death in itself that the contribution made by the defendant was insignificant.
This means that negligent medical treatment will only break the chain of causation in extreme cases, and even gross negligence will not break chain of causation if the injuries inflicted by the defendant is still an operative and substantial cause of the victim's death.
The case of Jordan provided such an example. Here, the defendant stabbed the victim. When the wounds had just about healed, the doctor did palpably wrong by administering some sort of medication that the victim was allergic to. The victim suffered an allergic reaction and died. The Court of Appeal quashed the defendant's conviction, and held that the doctor's actions were a truly independent and intervening act, as the original injuries were no longer operative at the time of death.
Firstly, then, in order to decide whether Des is liable for Vic's murder, the jury must ask itself whether at the time of Vic's death, the injury inflicted by Des was still an operative and substantial cause. Moreover, they must consider whether the Dr Finlay's failure to note down Vic's fear of needles, and Jane's subsequent actions of approaching Vic with a needle, were (1) independent of the defendant's acts and (2) such a powerful cause of death in itself that the stab wounds made by Des had become insignificant. If they answer yes to all three questions then the presumption is that they should find the defendant guilty.
There is one further issue raised by the present facts. Had Vic not been afraid of needles, then Dr Finlay would have carried out a blood transfusion which, it would seem, would have allowed him to recover. Had this happened, Vic would not have died. Does this break the chain of causation? The law has held that it does not. In the case of Blaue , for example, a Jehovah's witness died from a stab wound. She could have been saved with the help of a blood transfusion, but she didn't believe in medicine or in such transfusions. In other words, she could have saved herself but did not. The courts held that you take victim as you find them. This is known as the 'thin skull rule'.
In conclusion, one can see that the law behind the issue of causation is often, to say the least, tricky. It is submitted, however, that this is an inevitable consequence of the nature of causation, in the sense that every act in a chain of events can be argued to have caused the end result. However, the law must, of course, draw artificial lines between what can categorically be held to have caused a particular result and what cannot be held to have caused a particular act.
BIBLIOGRAPHY
Cases
R v Wrigley [1957] Crim LR
Dyson [1908] 2 KB 454 at 457
White [1910] 2 KB 124
Smith [1959] 2 QB 35
Malcherek v Steele [1981] 2 All ER 422
Cheshire [1991] 3 All ER 670
Jordan (1956) 40 Crim App Rep 152
Blaue [1975] All ER 446
Books
CLARKSON, C & KEATING, H, Criminal Law: Texts And Materials, 5th Edition, London, Sweet & Maxwell
ELLIOTT & QUINN, 2004, Criminal Law, 5th Edn, London, Longman
REED, A & SEAGO, P, 2002, Criminal Law, 2nd Edition, London, Sweet And Maxwell.
SIMESTER, A & SULLIVAN, 2003, G, Criminal Law: Theory And Doctrine, 2nd Edition, Oxford, Hart Publishing
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