CAUSATION

PART A
Causation” in Criminal Law is concerned with whether the defendant’s conduct contributed sufficiently to
the prohibited consequence to justify the criminal liability, which would be assessed from two aspects,
namely “factual” and “legal” causation.
Factual causation requires proof that the defendant’s conduct was a necessary condition of the
consequence, established by proving that the consequence would not have occurred but for the
defendant’s conduct.
The ‘but for’ test was illustrated in the case R v Pagett [1] where a question was asked that whether the
hostage would not have died but for the defendant’s conduct. The factual causation was established as: If
the accused had not fired first, the police officers would not have fired their weapons, and then the
hostage would not have died.
However, as illustrated in R v White [2] where the accused by putting cyanide in his mother’s drink was
not liable for murder on her death, if the prosecution fails to prove that the defendant’s conduct was a
factual cause of the prohibited consequence, then the accused cannot be liable for an offence on that
consequence, although he may be still liable for an attempted offence, say attempted murder in R v
White.
Legal causation requires proof that the defendant’s conduct was sufficiently connected to its
occurrence. [3] It could be merely established if the defendant’s conduct was an operating and substantial
(not trivial) conduct, but not necessarily the only cause of the consequence when there are two or more
legal causes of the same consequence.
But difficulties arise when there is something that happened after the defendant’s conduct, i.e. an
intervening factor. It should be noted that not every intervening factor amounts to a novus actus
interveniens which is ‘voluntary’ [4] and independent thus breaking the chain of causation. Naturally
occurring events and reasonably foreseeable events are not generally treated as breaking the chain of
causation because of its predictable effect. An objective test as shown in R v Roberts [5] is adopted in
establishing reasonably foreseeable events and it is not necessary to attribute characteristics [6] of the
defendant to the reasonable person. Therefore, the defendant cannot argue that it was the peculiarity [7] or
vulnerable characteristic of the victim that caused the prohibited consequence. The notion ‘take your
victim as you find him or her’ is illustrated in R v Blaue [8] where the defendant was liable for the death
of the victim after a blood transfusion. And it was affirmed in many cases that a victim’s failure to seek or
follow medical treatment or advice, even ‘unreasonable’ [9] , will not be treated as a novus actus
interveniens. [10] Furthermore, improper or negligent medical treatment, necessitated as a result of the
defendant’s infliction of injuries upon the victim, will not break the chain of causation as well. [11]
The common law principles of causation in Hong Kong was approved in Wong tat Chuen. [12] Even
though one might argue that the Section 65A(1) of the Criminal Procedure Ordinance [13] changed the
objective test (‘infer’ in (a)) into subject test (‘did’ in (b)), because of the title of it as ‘proof of intent’ the
statues in fact did not modify the principles in causation and an objective test should still be adopted
when establishing the casual link required.
2) Can a person who does not desire or wish a consequence to occur as a result of his voluntary act be
said to have intended it? Support your answers with reasons and authorities where appropriate.
The answer to the above question is yes subject to the following explanations.
In the cases where the defendant’s actions amounted to a direct attack upon his victims, the evidence
relating to the defendant’s desire or motive will be clear and his intent will have been the same as his
desire or motive.
But in some cases, the defendant did a manifestly dangerous act resulting in the death of a victim. The
primary desire or motive of the defendant may not have been to harm that person, or indeed anyone,
because one may intend to achieve a certain result whilst at the same time not desiring it to come about.
In R v Moloney [14] , Lord Bridge gave an illustration of the distinction: “A man who, at London
Airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel to
Manchester, even though Manchester is the last place he wants to be and his motive for boarding the
plane is simply to escape pursuit.”
In R v Nedrick [15] , the English Court of Appeal further explained this example as follows:
“The man who knowingly boards the Manchester aircraft wants to go there in the sense that boarding it is
a voluntary act. His desire to leave London predominates over his desire not to go to Manchester. When
he decides to board the aircraft, if not before, he forms the intention to travel to Manchester.”
In R v Nedrick, the appellant was convicted of murder after he poured paraffin through the letter box at
the house of a woman to whom he had earlier made the threat to “burn her out”. The appellant admitted
he had started the fire but he stated that he had not wanted anyone to die. The English Court of Appeal
held that the trial judge’s direction to the jury that if the appellant knew “it was highly probable that the
act would result in serious bodily injury to somebody inside the house, even though he did not desire it
…… he is guilty of murder” was wrong as that equated foresight with intent because, citing R v Moloney,
“foresight of consequences, as an element bearing on the issue of intention in murder … belongs, not to
the substantive law, but to the law of evidence”.
The English Court of Appeal held in R v Nedrick at 270 that:
“Where the charge is murder and in the rare cases where the simple direction is not enough, the jury
should be directed that they are not entitled to infer the necessary intention, unless they feel sure that
death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of
the defendant’s actions and that the defendant appreciated that such was the case.
Where a man realises that it is for all practical purposes inevitable that his actions will result in death or
serious harm, the inference may be irresistible that he intended that result, however little he may have
desired or wished it to happen. The decision is one for the jury to be reached upon a consideration of all
the evidence.”
In R v Woollin [16] , the House of Lords in the judgment delivered by Lord Steyn approved this direction
except that the word “find” should be substituted for the word “infer” for clarity.
The Hong Kong Court of Appeal considered these authorities in SFC v Zou Yisha [17] and held that the
evidential principle now expressed in Nedrick and Woollin as to a defendant’s intent to bring about a
certain result being found from his appreciation of the virtual certainty of his actions bringing about that
result, is applicable generally in the common law to all offences of specific intent. [18] .
The Court of Appeal’s remarks in SFC v Zou Yishang at para. 44 are worth noting:
“It follows that the Nedrick and Woollin test has in principle general applicability to all offences of
specific intent, though it may well be that it will be relatively few cases where the test is of any practical
benefit.  Those cases will mostly arise where the offence charged was not the primary purpose of the
defendant.”
In short, where the defendant appreciated that a consequence of his voluntary act was virtually certain, the
jury would be entitled to find that he did intend that consequence even if he did not desire or wish it to
occur.
PART B
Generally, causation can be said to be a difficult area of law. [2] Causation could be proved either through
factual or legal causation. According to the Court of Appeal in Pagett [3] and Cheshire [4] the issue of
factual causation is mainly one for the jury once it has been determined by the courts that there is enough
evidence to be left to them. Factual causation can be established through the ‘but for’ test [5]
When establishing legal causation, the accused need not be the sole or even the main cause of the harm or
victim’s death but it must be a significant cause of the result [6]
In the case of R v Kennedy No2 [7] , it was held that the defendant’s contribution need only be
significant, it need not be substantial. In circumstances where there are no complicating factors, factual
causation will be sufficient to establish causation but where there are complicating factors, legal causation
will be needed to establish causation.
In Pagett, Goff LJ [8] asserted that ‘it is left for ‘the judge to direct… in simple terms, in accordance with
the legal principles which they have to apply. It would then fall to the jury to decide the relevant factual
issues which, identified with reference to those legal principles, will lead to the conclusion whether or not
the prosecution have established the guilt of the accused of the crime of which he is charged’.
The chain of causation can be broken by a novus actus interveniens [9] . Simester and Sullivian explained
in their book that a ‘novus actus’ is an action or an event which ‘intervenes’ to ‘break the causal chain’
leading from D to the eventual harm”. Where the result is attributable to a novus actus, D is relieved of
the liability for that result and his conduct is no longer seen as a significant and operating cause. [10]
Not in all cases will an intervening act break the chain of causation. There are some situations where the
defendant has to take his victim as he finds him. For example in the cases where the victim refused
medical treatment based on religious beliefs [11] or pre existing medical, mental or physiological
conditions as seen in the cases of Hayward, [12] Jordan, [13] smith [14] and Blaue. [15] Lawton L. J held
that “it does not lie in the mouth of the assailant to say that the victim’s religious beliefs which prevented
him from accepting certain types of treatment were unreasonable” [16] . So the refusal of your victim to
treatment would not relieve you of liability in the thin skull rule. And so it wouldn’t break the chain of
causation.
Where the defendant is still a significant and operating cause at the time of the victim’s death, then it is
irrelevant that there are other causes too also operating and this was the view in Blaue, Smith and Dear
(1996) [17] . Norrie was of the view that what might be apposite for breaking the chain of causation in
such case which is necessary in order to distinguish the religious from the spiteful victim was not
provided by the law commission. [18]
Honore and Hart argue that where there is a free, deliberate and informed act or omission of a human
being intervening in causal sequence, the initial causal chain is broken. [19]
The issue of causation becomes confusing when it comes to drug administration and joint responsibility
cases under novus actus intervenien. Different academic writers have also commented on this view. The
case of Kennedy No2 was seen to be the leading case with regards to the causation principles in cases of
supply drugs where the dealer supplies drug and after voluntary self injection by the victims, they die.
The approach to causation may be based on the specific unlawful act used at the trial, in R v Kennedy (No
2), R v Carey [20] and R v Dhaliwal [21] , there appears to be an exact incongruous application of
causation all of which involved an unlawful act so less important in nature. [22]
Thirlaway and James were of the view that the decision in Kennedy No2 did not attract a great deal of the
academic support. [23]
In Kennedy No2, the appellant was convicted of manslaughter and supplying a class A drug (heroin)
which is contrary to s.4 (1) of the Misuse of Drugs Acts 1971. [24] He was sentenced to five and two
years’ imprisonments on the first and second counts respectively to run simultaneously. The convictions
arose out of the death of the Victim, B, who died as a result of ‘inhalation of gastric contents while
acutely intoxicated by opiates and alcohol’ (at [3]). On 10 September 1996, the appellant visited the room
occupied by the victim and his friend, C, who had been drinking together. According to the evidence of
C, B told the appellant that he wanted ‘a bit to make him sleep’. The appellant had told the victim to take
care that he did not go to sleep permanently. The appellant prepared a syringe of heroin and gave it to the
victim. The victim injected himself and returned the empty syringe to the appellant, who then left the
room. The victim then appeared to stop breathing and was pronounced dead when he was taken to
hospital.
The appellant was given leave to appeal but his first and second appeals were dismissed. The appellant
challenged it on the point of law and was therefore heard by the House of Lords and so his third appeal
was allowed.
Thirlaway and James asserted that the Court of Appeal in Kennedy (No. 2) was suggesting that the
appellant and the victim were joint principals as far as the s.23 [25] offence was concerned and that
therefore a causal link could be established, albeit tenuously. [26]
Having analyzed and found unquestionable the elements of the s. 23 [27] and manslaughter offences, the
House of Lords in Kennedy No2 went on to consider principles of causation in depth and agreed (at [14])
that the ‘free, deliberate and informed intervention of a second person, who intends to exploit the
situation created by the first, but is not acting in concert with him, is normally held to relieve the first
actor of criminal responsibility [28]
Analyzing the previous case law briefly, the House of Lords were of the view that Cato [29] could be
distinguished from Kennedy No1 on its facts as the Injection had been administered by the defendant.
The House of Lords concurred with the judgments in R v Dalby [30] and R v Dias [31] that the chain of
causation could be broken by the voluntary and informed decision of the person injecting himself. As a
result, it was held that the case of R v Rogers [32] had been wrongly decided. In Kennedy (No. 2), the
Court of Appeal found that the jury could have validly convicted the appellant of manslaughter if they
were satisfied that, when the syringe was handed to the victim for the purposes of ‘immediate injection’
(at [51]), the appellant and the victim were both engaged in the activity of administering the heroin.
The Court of Appeal found that there was no need for the jury to find the presence of encouragement and
that the jury were entitled to find that the victim and the appellant were jointly engaged in administering
the heroin. In finding this, it was inevitable that there was a joint unlawful act contrary to s. 23 which had,
in fact and in law, caused the deceased’s death. In applying this approach, the problem of what appeared
to be a novus actus interveniens in the chain of causation was avoided. Ormerod and Forston describe the
court’s approach as a ‘controversial … unworkable approach to liability based on D’s “joint
participation”, criticizing not only the interpretation of the words ‘any other person’ under s. 23 but also
the reasoning behind the concepts of joint liability. [33]
Cowan [34] asserted that in prosecuting a manslaughter case, you must be able to prove that the defendant
caused the death. A voluntary intervening act by a responsible person breaks the chain of causation.
Williams asserted that what a person does is his own responsibility and is not regarded as having been
caused by other people. This approach has been repeatedly adopted and approved by the appellate courts
in a diverse range of circumstances like Pagett and Latif [35] . In the context of drug administration cases;
the courts have released their grip on this seemingly settled principle.
Ormerod explained that after years of confusions in the Court of Appeal, the House of Lords were able to
restore orthodoxy back to the principles of causations in a judgment delivered by Lord Bingham.
Ormerod asserted that it was a most welcome conclusion and was obvious to all commentators. [36]
Lord Bingham clarified that the decision in Empress Car Co [37] is restricted to cases of pollution or
environmental crimes: “it does not lay down any general rules governing causation in criminal law”
The Court of Appeal accepted that in Dias that the principal act of self-injection is not a crime and thus
there can be no form of accessory liability for it. Williams, R asserted that the position in criminal law
before Finlay [38] was simple in the sense that if the defendant had directly caused the offensive result, he
would be guilty as a principle [39] 40
Under the doctrine of joint enterprise, the principles of causations cannot be relied on due to a number of
unfortunate reasons which was explained by Virgo G [41] 42
Reed asserted that helping or encouraging another to commit an offence is a specific crime and D is liable
in such a case as a secondary party but V is not liable because there is no offence of self manslaughter and
he has committed no crime. [43] Hughes was of the view that only one person can inject the drugs, so
how then can a drug be jointly administered? It would surely be impractical for two people to depress the
plunger simultaneously. He said that Lord Bingham’s comments were obiter and should remain so
because it is difficult to sustain term ‘jointly administered’ unless Lord Bingham was referring to cases
such as Cato. [44]
Reed was of the view that ‘consistency and legal principle does not permit us to create an exception to the
general principles of causation to take care of the particular problem thrown by the case’. [45]
The important case of Environment Agency v Empress Car Co. (Abertillery) Ltd fits uneasily with the
general principle of voluntariness expressed in Latif. The decision in Empress is perhaps best explained in
terms of public policy concerns over tile control of pollution but unfortunately their Lordships appeared
to confuse culpability and specific interpretation of legislation, with causation. [46]
The outcome in Empress was that a deliberate intervening act does not break the chain of causation unless
extraordinary. Following the general principle in Latif, the bandit’s act should have broken the chain of
causation but it didn’t. The court of appeal held that The Court of Appeal in Dias asserted that, in cases
where D is accused of manslaughter because he supplied V with drugs, a conviction can only be upheld if
the issue of causation is left to the jury to decide [47] . This formed a mark of separation between
Kennedy and Dias [48]
Cherkassy disagreed with the decision in Kennedy No2 on the fact that the act of injection was to break
the chain in causation because the injection was made possible by the unlawful act of possession and
supply of drugs and the victim administering the drug does not mean the defendant didn’t take part in the
administration. [49]
There have been inconsistency and different confusing views as regards the principles of causation. There
has not been a unanimous decision on the issue of causation. In R v Dias, the Court of Appeal asserted
that the victim acting fully informed and deliberate would not break the chain of causation while in
Kennedy No2, the house of lords ruled that D is not guilty of UAM in cases where V injects himself with
the drug and was fully informed and responsible adult and therefore would break the chain of causation.
This decision was welcomed by many academics. [50] Also the Court of Appeal in R v Evans [51] has
now ruled that the supplier may instead be guilty of gross negligence manslaughter if he finds out that his
victim has become seriously ill but does nothing to save him. In Cato, it was held that anyone who injects
a person who consents with a controlled drug is guilty under s.23 of OAPA and thus of UAM if he later
dies.
Rogers was of the view that the law needs clarification and amendment. [52]
In summary, I would concur with Reed on the issue of UAM that the laws relating to UAM is in total
mess and has been approached in a confused manner and he asserted that “the recent decisions in
Kennedy and Dias are palpably inconsistent over the issues of causation, voluntariness and assistance in
drug-abuse injection. It is high time for the House of Lords to enter the vanguard to point us in the right
direction. Confusion reigns supreme”.