non (often shortened to sine qua non) which essentially means ‘without which it could not be’. Simply, the defendant’s act or omission must have caused the end result. The classic example of factual causation in operation can be seen in R v White [1910] 2 KB 124.
case example
Charge: Murder
Case progression: Crown Court – Not guilty, but guilty of attempted murder
Court of Criminal Appeal – Conviction upheld
Point of law: The defendant must be the factual cause of the end result
In R v White [1910] 2 KB 124, the defendant attempted to poison his mother with potassium cyanide by placing the deadly substance in her lemonade. Whilst his mother did drink some of the liquid, she died having suffered from a heart attack. The medical evidence demonstrated that death resulted from the heart attack, and not from the poison. The defendant was charged with murder.
The Court of Criminal Appeal held that the defendant could not be liable for murder as there was not a sine qua non because his mother would have died anyway.
Note, however, that the son was convicted of attempted murder (see Chapter 5).
Contrast White with the case of R v Dyson [1908] 2 KB 454 in which the victim, a three-month-old child, would have likely died from meningitis. The defendant attacked the child and the Court of Criminal Appeal was satisfied that the defendant has accelerated the victim’s death. In this regard, the defendant was the factual cause of death as a result of his acts accelerating the child’s death.
Often, students struggle to grasp the concept of ‘but for’ and get lost in the wording. Suppose Jack wishes to kill Jill; Figure 2.4 will assist with this matter.
Figure 2.4Operation of factual causation
In many cases, factual causation will be obvious, eg Jack dies from being shot in the head by Jill. In this instance, Jill is clearly the factual cause of death, but that does not mean that the principle can be ignored or brushed over; it should still be explained in full (see R v Mitchell [1983] QB 741).
2.7.2Legal causation
Legal causation, also known as ‘causation in law’ or ‘imputable causation’, is a much narrower and more subjective concept than factual causation. Although both concepts use the word ‘cause’, the distinction between the two is of utmost importance. A significant point to remember is that ‘not every cause in fact is a cause in law’.
So, factual causation looks at whether the defendant’s actions caused, in a ‘but for’ sense, the end result. Legal causation, on the other hand, looks towards whether the defendant can be blamed for the end result that followed. Williams in his Textbook of Criminal Law, 2nd edn (Sweet & Maxwell, 1983) refers to this as a ‘moral reaction’ and helpfully summarises the position as follows:
If the term ‘cause’ must be used, it can best be distinguished in this meaning as the ‘imputable’ or ‘responsible’ or ‘blamable’ cause, to indicate the value-judgment involved.
2.7.2.1What is the difference between legal and factual causation?
At this moment, you may be scratching your head thinking, ‘Well, what’s the difference? They both deal with whether the defendant caused the end result.’ Factual causation, if interpreted literally, is extremely broad, and who amounts to the ‘factual’ cause of harm can be extensive.
example
Jack and Jill live together. It is normal for Jack to drive Jill to work on a daily basis. The two, however, get into an argument and Jack tells Jill to take public transport. Jill does so and is injured when the bus she is riding is involved in an accident.
So, who is the factual cause of harm (ie but for their actions or conduct, Jill would not have been injured):
• the driver of the car involved in the accident (‘but for’ his conduct, Jill would not have been injured);
• Jack (‘but for’ his conduct, Jill would not have been on the bus and thus would not have been injured);
• the bus driver (‘but for’ his driving of the bus, Jill would not have been injured), etc?
The list, as you can see, could go on forever – it could even reach Jill’s parents (ie ‘but for’ Jill’s parents deciding to have a child, Jill would not be alive to be involved in an accident). Naturally, this is nonsensical, and if the ‘but for’ test is applied literally it will often lead to absurd results. Indeed, this was the view taken by the Supreme Court in R v Hughes [2013] UKSC 56 where Lord Hughes gave the following example:
The law has frequently to confront the distinction between ‘cause’ in the sense of a sine qua non without which the consequence would not have occurred, and ‘cause’ in the sense of something which was a legally effective cause of that consequence. The former, which is often conveniently referred to as a ‘but for’ event, is not necessarily enough to be a legally effective cause. If it were, the woman who asked her neighbour to go to the station in his car to collect her husband would be held to have caused her husband’s death if he perished in a fatal road accident on the way home. In the case law there is a well recognised distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence
To avoid such an absurdity, legal causation steps in to narrow the scope of liability.
Legal causation requires several concepts to be met before the defendant is deemed as the legal cause of harm. These concepts are that the defendant must be:
•the substantial cause;
•the blameable cause; and
•the operative cause.
2.7.2.2Substantial cause
The first concept provides that the defendant must be the ‘substantial cause’ of harm. This would appear, at first sight, to be a high threshold, requiring the defendant to be the only, or at very least the main, cause of the end result. This, however, is not the case. Rather, in English law, the defendant need only provide a contribution that is ‘more than a minimal’ (R v Malcherek; R v Steel [1981] 2 All ER 422). The phrase ‘more than a minimal’ has been expressed in many ways in different cases. For instance:
•In R v Kimsey [1996] Crim LR 35, Auld LJ upheld the trial judge’s direction to the jury in which he said that the jury do not have to be sure that the defendant’s conduct ‘was the principal, or a substantial cause of the death, as long as you are sure that it was a cause and that there was something more than a slight or a trifling link between the [conduct] and the [end result]’ (emphasis added).
•In
