chain of causation is broken. Use the facts of Jordan to assist you, and if the facts are similar (ie a wound had largely healed and the treatment so palpably wrong), use them to suggest that the chain is broken. Ensure you substantiate why you think the chain is broken and battle against the arguments that suggest the chain remains intact.
An interesting application of the rule in Smith, and later in Cheshire, is the decision in R v Malcherek; R v Steel [1981] 2 All ER 422, which concerned the switching off of a life support machine several days after the defendant had inflicted serious wounds upon the victim. The defendant argued that the act of the doctor in disconnecting the life support machine had broken the chain of causation and caused the death of the victim. The defendant argued that this was so despite the injuries inflicted. Lord Lane CJ in the Court of Appeal concluded:
There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.
The defendant, therefore, remained the operating and substantial cause of death, with Herring (Criminal Law: Text, Cases, and Materials, 9th edn (OUP, 2020)) commenting that, ‘After all, what did the victim die from when the machine was switched off, if not the injuries inflicted by the defendant?’ Again, it would appear as though policy and good sense dictates the flow of this area of law with Jefferson (Criminal Law, 12th edn (Pearson, 2015)) quite usefully summarising that the ‘courts seem to be pulling the law on causation to exculpate doctors and the police in order to catch the attacker’.
An interesting point that arises here and relates back to our discussion of omission liability concerns whether the withdrawal of treatment is an act or an omission. Kennedy (‘Switching Off Life Support Machines’ [1977] Crim LR 443) points out that the withdrawal of treatment may be considered an act (by physically turning off the life support machine) or an omission (by failing to continue to provide treatment). The distinction in this case is essentially moot given that we are concerned with the medical intervention and whether such would break the chain of causation; however, it may be relevant when one considers whether an omission can be ‘free, deliberate and informed’.
Omissions and intervening acts
The final point worthy of consideration here is whether an omission of a third party, as opposed to a positive act, can break the chain of causation. Herring, Criminal Law: Text, Cases, and Materials, 9th edn (OUP, 2020) suggests not and explains:
If the defendant stabbed the victim, who was taken to hospital but died because no medical treatment was offered, then the defendant would be said to have caused the death.
Indeed, this view has particular merit on account that the defendant in this situation would still be considered the substantial and operating cause of the end result. It is debatable how far this view can go, however. Suppose Jack pushes Jill into deep water knowing that she cannot swim. Bob is the acting lifeguard on that day, notices Jill struggling and ignores her. Jill drowns. In this circumstance, can it be said that Jack will remain the cause of Jill’s death (given that he pushed her into the pool), or will Bob have broken the chain of causation given that he had a duty to act (a contractual duty as a lifeguard) and failed to do so? This is especially pertinent if Jack knew that Bob was on duty: is it appropriate to make Jack liable in these circumstances? Ultimately, this would be a question of fact for the jury, but it is worthwhile to note that an omission may be capable of breaking the chain of causation, in the eyes of a jury, in certain circumstances.
2.7.3.3Act of the victim
The second circumstance where the chain of causation may be broken is as a result of the victim’s own act. The victim’s act may break the link between the original act of the defendant and the end result. There are three key scenarios worth considering under this heading:
(1) The victim may bring about the end result in attempting to escape from the defendant. These cases are often referred to as ‘fright and flight’ cases and look to see whether the acts of the victim are foreseeable or unreasonable.
(2) Known as the ‘drug-dealing’ cases, here the court questions whether the victim’s self-administration of drugs will break the chain of causation rendering the accused, the ‘drug-dealer’, not liable for the death or injuries that follow administration.
(3) The final circumstance is more of a mixed bag and consists of where the victim refuses medical treatment, exacerbates their injuries through neglect or self-aggravation, or ends their own life as a result of the defendant’s conduct.
We shall consider each in turn.
Fright and flight
As noted above, when considering if the victim’s acts broke the chain of causation, the court looks to see whether their actions were foreseeable or unreasonable. According to the Court of Appeal in R v Roberts (1971) 56 Cr App R 95, the court is to question whether the response of the victim was ‘daft’ in the circumstances.
Importantly, the court is not concerned with whether the victim acted reasonably, but, rather, whether the victim’s reaction was reasonably foreseeable by the defendant (emphasised by the Court of Appeal in R v Mackie (1973) 57 Cr App R 453). The arbiters of fact are, therefore, concerned with whether the defendant foresaw that the victim would act in a certain matter. If it is not reasonably foreseeable, the victim’s act may be considered ‘daft’ and thus break the chain of causation. If, however, their actions are reasonable foreseeable, the chain will remain intact and the defendant will be liable for any death or injury that follows. Figure 2.7 below will assist on this point.
case example
Charge: ABH (OAPA 1861, s 47)
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Acts of the victim must be ‘daft’ in order to break the chain of causation
In R v Roberts (1971) 56 Cr App R 95, the defendant, whilst driving the victim home from a party, began to make unwanted sexual advances towards her. The defendant also threatened her and touched her coat. The victim jumped from the moving car and suffered harm. The defendant was convicted in the Crown Court.
The Court of Appeal upheld his conviction, ruling that the acts of the victim were neither unreasonable nor unforeseeable.
Stephenson LJ commented:
The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?
Roberts was subsequently applied and approved by the Court of Appeal in R v Williams and Davis [1992] 2 All ER 183. In that case, the victim, a hitchhiker, jumped from the defendant’s car which was travelling at 30mph after being threatened
