fired by the defendant. It is questionable whether the officers acted reasonably in firing back at the defendant; however, this point is moot given that it would make no difference to the outcome of the case. In summary, the police officers acted in a manner that was ‘deliberate and informed’ but was not ‘free’, in that their actions were a natural and foreseeable consequence of the defendant’s conduct. In this regard, the police officer’s conduct did not break the chain of causation.
Secondly, the act must be ‘deliberate’/‘voluntary’.
case example
Charge: Breach of the peace
Case progression: Magistrates’ court – Bind over
Divisional Court – Bind over upheld
Point of law: Whether the actions of a third party can break the chain where they ‘appear’ voluntary
In Wise v Dunning [1902] 1 KB 167, the defendant, a Protestant preacher, gave anti-Catholic speeches in Liverpool which he knew would cause the audience to react violently, which they did. The magistrates’ court bound him over (ie had him agree) to keep the peace which he then breached.
The defendant appealed by way of ‘case stated’ to the Divisional Court, arguing that he should not be liable for any breach of the peace caused by a third party. The Divisional Court ruled that the violence arose as a ‘natural consequence’ of the defendant’s actions.
Dunning is a complex case involving both substantive and procedural points of law. Dunning has been used as an example here to demonstrate that the actions of third parties (ie the members of the crowd) will not break the chain of causation where their actions are not ‘voluntary’. You may think this idea sounds absurd. Herring (Criminal Law: Text, Cases, and Materials, 9th edn (OUP, 2020)) agrees and argues that this case stretches the meaning of ‘voluntary’ to its extreme. The easiest way to appreciate this decision is to break it down into a common sense understanding:
•The violence erupted as a result of the defendant’s actions in making the speech.
•The defendant knew the crowd would react violently.
•The reaction to turn to violence was ‘instinctive’ and without thought on the part of the crowd.
Have you ever acted without thought? Become so angry or upset that you say or do something out of character? That was the position here, and although it may be considered a stretch in meaning, it is a useful demonstration of the meaning of voluntary.
Finally, the act must be ‘informed’.
case example
Charge: Murder
Case progression: Court for Crown Cases Reserved – Guilty
Point of law: Whether a third party could break the chain of causation when uninformed as to their actions
In R v Michael (1840) 9 C & P 356, the defendant desired her baby dead and handed a bottle of laudanum (poison) to a nurse, telling her that it was medicine for the baby. The nurse regarded the medicine as unnecessary and placed it on the mantelpiece unaware that it was poison. The nurse’s child, aged five, picked up the poison and administered it to the baby. The baby died as a result.
The Court held that the mother remained the legal cause of death. This was despite the actions of the five-year-old who was described by the Court as ‘an unconscious agent’, thus not resulting in a break in the chain of causation.
The case of Michael is an authority on two points. The first being the so-called ‘intended results’ cases where a defendant is liable where they intended a result and that result occurs. This shall be discussed in greater detail in Chapter 3, but for now it is worth stating that despite the manner of death of the child, the end result of death was as the defendant desired. Hart and Honoré in their text, Causation in the Law, 2nd edn (OUP, 1985) do not take this view and argue that the ‘intended result’ did not occur. The true intended result was for the nurse to administer the deadly substance, not the child. Specifically, the pair state that the child was ‘not in any sense an agent, conscious or unconscious, of the mother, who intended [X] alone to give the poison to the child’.
The second point is that which we are more concerned with, namely whether the act of the child was a novus actus interveniens. The Court was clear that the actions of the child could not amount to a new and intervening act. Hart and Honoré go on to say that ‘the decision may be justified on the ground that … the act of the child of five did not negative causal connexion between the prisoner’s act and the death’. Essentially, given that the child was an ‘innocent agent’ (as a result of her age) and being uninformed of the poisonous substance, her actions could not amount to a ‘free, deliberate and informed’ intervention. Should the child have drunk the substance, as opposed to administering it to the victim, the doctrine of transferred malice (see Chapter 3) would operate to maintain the liability of the defendant.
That is the first element for you to consider when faced with an intervention from a third party. Ensure that you are clear in any answer given whether the third party is truly acting in a ‘free, deliberate and informed’ manner. If they are, you may then consider the second element; namely, whether the defendant remains the ‘operating and substantial’ cause.
Operating and substantial cause
This principle is merely a reflection of that considered above in legal causation. Essentially, the defendant must remain the imputable, or legal, cause of the end result. In R v Rafferty [2007] EWCA Crim 1846, the Court of Appeal quashed a defendant’s conviction for manslaughter on account that his co-defendants (who were convicted of murder) had broken the chain of causation by inflicting further injuries on the victim and leaving him in a dangerous state in the absence of the defendant. Rafferty is one of those few cases in which the chain of causation has been broken by an act of a third party.
A useful way to demonstrate this particular area of law, and its development, is by looking at two different examples:
(i) cases involving driving offences; and
(ii) cases involving medical intervention.
(i) Driving cases
This first sub-section is justified on account that a common feature of accidents and collisions on the road is the attempt to pass blame. By way of a simple example, Jack is driving his car at speed and tailgates a car driven by Jill. Suppose Jill applies the brakes without due cause and Jack collides into the back of Jill’s car, killing Andy who was sat in the back seat. Who is responsible for Andy’s death? Jill for applying the brakes without reason, or Jack for tailgating at speed and ultimately colliding with Jill?
The point to appreciate here is that, as noted above, there may be multiple causes of the same end result. We need to consider, however, what the circumstances are where one party can legitimately pass blame from themselves to another. The test to be applied in these circumstances is whether the subsequent conduct of the third party is ‘reasonably foreseeable’ to the defendant (R v Girdler [2009] EWCA Crim 2666). In Girdler,
