judgment of a seven-member Supreme Court, allowed the appeal, answering ‘no’ to the certified question and ruling:
… the accident must have occurred ‘owing to the driving of the vehicle’, that there will have been something wrong with the driving … the driving cannot be said to have caused the accident if it merely explained how the vehicle came to be in the place where the accident occurred.
It follows from the admitted absence of fault in the driving of the vehicle that the driving did not cause the death of Mr Davidson-Hackett.
Lord Sumption would conclude:
I would express the test applicable in this case in the same terms as Lord Hughes and Lord Toulson expressed it in Hughes at para 36. There must be ‘at least some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death’.
It would appear that the law has now finally been clarified with Taylor effectively re-endorsing the decision of Dalloway. As a result, therefore, the defendant’s blameworthy conduct must be the cause of the end result. There must be an element of fault in causation. Simply having conduct that is blameworthy is not sufficient; there must be fault.
Figure 2.6 should assist in understanding the position as a result of Taylor.
Figure 2.6Understanding blameable conduct
2.7.2.4Operative cause
The final factor is that the defendant must remain the ‘operative’ cause of harm. This means that the operation of his act or omission must remain the significant cause of the end result and must not have been superseded by another act, independent of the defendant. Indeed, a defendant may be both the factual and legal cause of the end result, but he may not be held liable if there is an intervening event (an act or an omission) which may ‘break the chain of causation’. In this circumstance, the defendant will no longer be the operative cause of harm. For a detailed account of causation, see Hart and Honoré, Causation in the Law, 2nd edn (OUP, 1985). Intervening acts will be considered now at 2.7.3.
2.7.3New and intervening acts
A break in the chain of causation, also known as a novus actus interveniens or ‘new and intervening act’, will rid the defendant of liability for the consequence of his original act. Although the defendant will remain the factual cause of harm, the intervening act may supersede the blameable element of the defendant’s conduct, thus ridding him of criminal liability for the end result. Remember, though, that he may still be liable for the original act or for an attempt.
The chain of causation may be broken in three distinct circumstances:
•the act of a third party (see 2.7.3.2);
•an act of the victim (see 2.7.3.3); or
• an unforeseeable natural event, sometimes called an ‘act of God’ (see 2.7.3.4).
Lord Hoffmann in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22 stated:
[I]t is of course the causal significance of acts of third parties (as in this case) or natural forces that gives rise to almost all the problems about the notion of ‘causing’ and drives judges to take refuge in metaphor or Latin.
Each of these three circumstances will be considered below. However, it is first essential to consider the general principles that arise when one considers new and intervening acts.
2.7.3.1General principles
According to Goff LJ in R v Pagett (1983) 76 Cr App R 279, an intervening act is one that is ‘so independent of the act of the accused that it should be regarded in law as the cause of the victim’s death to the exclusion of the act of the accused’. Table 2.10 details the most important principles to be aware of, and these principles will be fleshed out below.
Table 2.10Principles of novus actus interveniens
| Principle |
| No intervening act can break the chain of causation if it merely complements or aggravates the effects of the defendant’s initial conduct. |
| Where the defendant’s act is still the ‘substantial and operating cause’ of the result, the defendant may still be liable. |
| The intervening act must be independent of the defendant’s conduct or an unforeseen event which is the immediate and sufficient cause of the end result. |
| The intervening act must be ‘free, deliberate and informed’. |
2.7.3.2Act of a third party
A matter that has come before the courts on a number of occasions is the issue of a subsequent intervention by a third party. As you can imagine, it would be extremely unlikely (and often impossible) for a defendant to break his own chain of causation. In the event that the defendant did break his own chain of causation, he would remain liable for the offence in question, but the focus of the prosecution’s case would shift from the original act to the subsequent act. This is more a matter of evidence than it is of practice or liability. As a result, this section is only concerned with the acts of third parties.
in practice
When considering whether the act of a third party broke the chain of causation, the prosecution may decide that it is appropriate to seek a charge against that third party. However, in problem questions, unless it tells you otherwise, only the liability of the defendant concerned should be considered. The actions of the third party are therefore relevant only to the liability, or lack thereof, of the defendant in question.
As a starting point, it is necessary to set out the test to be applied. According to R v Kennedy (No 2) [2008] 1 AC 269, the act of a third party will only break the chain of causation where:
(a) the third party’s act is ‘free, deliberate and informed’; and
(b) the defendant is no longer the ‘substantial and operating cause’.
Development
Prior to Kennedy (No 2), the law was in a state of flux with contrasting authorities and tests to be applied.
To begin with, the classic pronouncement of the Kennedy (No 2) test in operation today is the case of R v Latif; R v Shahzad [1996] 1 All ER 353. In Latif, the defendants intended to import heroin from Pakistan into the UK. Unbeknownst to the defendants, the drugs were flown to Britain by a British customs officer whilst the defendants were arrested in London. The House of Lords held that the actions of the customs officer broke the chain of causation
