were convicted of manslaughter at first instance, but their convictions were quashed on appeal on account that the trial judge had failed to give adequate directions to the jury. On appeal, the test of ‘daftness’ was slightly modified by Stuart-Smith LJ who stated that the jury must instead consider whether the victim’s act was
proportionate to the threat, that is to say that it was within the ambit of reasonableness and not so daft as to make it his own voluntary act which amounted to a novus actus interveniens and consequently broke the chain of causation.
His Lordship went on to explain the state the law:
The jury should consider two questions: first, whether it was reasonably foreseeable that some harm, albeit not serious harm, was likely to result from the threat itself; and, secondly, whether the deceased’s reaction … was within the range of responses which might be expected from a victim placed in the situation which he was. The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation.
The test of ‘daftness’ is still employed to this day alongside the idea of a ‘range of responses’. There was, however, a conflicting of authority with Williams, namely that of R v Evans [1992] Crim LR 659, where the Court of Appeal ruled that the test to be applied is whether the flight was a ‘natural consequence’ of the accused’s behaviour. If it was not, the chain of causation is broken. That test, however, has been dismissed by the subsequent decision of R v Corbett [1996] Crim LR 594. We remain, therefore, concerned with the test of ‘range of responses’. The test of ‘range of reasonable responses’ was adopted by the Court of Appeal in R v Tarasov [2016] EWCA Crim 2278.
A couple of questions arise from this issue:
(1) What does the court mean by a ‘range of responses’ from the victim?
(2) What does the court mean by ‘reasonable foreseeability’ on the part of the defendant?
The first question was answered by Stuart-Smith LJ in Williams and later affirmed by the Court of Appeal in Corbett, which ruled that the jury should bear in mind any ‘particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation’. As a result, therefore, the range of responses will vary and fluctuate according to the victim’s age, mental capacity and other internal and external circumstances. For example, where the victim is intoxicated, the jury will be required to consider if the victim’s response was within the ‘range of responses’ of an intoxicated person. The test, therefore, is partly objective and partly subjective in that the jury are considering the individual characteristics of the victim, but from the standpoint of another individual with the same characteristics.
The second question was answered by the Court of Appeal in R v Marjoram [2000] Crim LR 372, which ruled that when dealing with the question of whether the victim’s reaction was ‘reasonably foreseeable’, the jury are concerned with whether the reaction was foreseeable to an ‘ordinary person’ and not to a person of the defendant’s age and characteristics. The defendant’s own inability to foresee the reaction of the victim is, therefore, not relevant to the question of causation, but may be relevant when one considers mens rea. In that regard, the test is objective and not subjective. In the recent case of R v Lewis [2010] EWCA Crim 151, the Court of Appeal held that in cases of death during flight, there must be a causal link, with the jury asking themselves whether the victim’s response ‘might have been expected’. Pitchford LJ made clear that the judge did not need to use the language of Williams so long as the fundamental nature of the test was communicated:
[The jury] could not have been in doubt that they were being asked to measure the nature of the threat posed by the unlawful act with the form of escape adopted by the deceased.
in practice
Ensure that you consider the specific facts of each case presented before you. For example, should there be a difference in law between jumping from a vehicle travelling at 30mph and from a vehicle travelling at 70mph? Many would argue that to jump from a vehicle travelling at high speed is daft and unreasonable. Others would argue that the victim’s reaction depends upon the situation they are escaping from. Consider both of these matters carefully and reach a reasoned conclusion.
Figure 2.7Fright and flight outcomes
Drug-dealing cases
A specific area of law was required to deal with the circumstance when the defendant supplied drugs to the victim who self-administered such drugs that then resulted in their death or injury.
Following the defendant’s original conduct, where the end result has come about because of the victim’s ‘free, voluntary and informed’ act, the chain of causation will be broken and the defendant is not to be regarded as the legal cause (R v Dalby [1982] 1 All ER 916). Similar to considering the acts of a third party, each element must be satisfied. Where the victim acts in a free and voluntary manner but is uninformed or unaware of the circumstances, they will not break the chain of causation.
The key authority in this area of law is the House of Lords decision in R v Kennedy (No 2) [2008] 1 AC 269.
case example
Charge: Constructive manslaughter
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Court of Appeal (CCRC reference) – Conviction upheld
House of Lords – Conviction quashed
Point of law: Self-administration by a free, deliberate and informed act will break the chain of causation
In R v Kennedy (No 2) [2008] 1 AC 269, the defendant prepared a syringe of heroin and gave it to the victim upon their request. The victim self-injected and died. The defendant was convicted in the Crown Court for constructive manslaughter (due to the supply of unlawful drugs) and his appeal was dismissed in the Court of Appeal.
The defendant returned to the Court of Appeal a second time (following a Criminal Cases Review Commission (CCRC) reference), where his conviction was again upheld.
The House of Lords allowed his appeal and quashed his conviction, ruling that where the victim acts in a ‘free, voluntary and informed’ manner by self-administering the drug, the chain of causation will be broken and the defendant will not be the legal cause of death despite the supply of the drugs by the defendant.
Lord Bingham concluded:
There is, clearly, a difficult borderline between contributory acts which may properly be regarded as administering a noxious thing and acts which may not. But the crucial question is not whether the defendant facilitated or contributed to administration of the noxious thing, but whether he went further and administered it. What matters … is whether the injection itself was the result of a voluntary and informed decision by the person injecting himself.
Effectively, Lord Bingham ruled that where the victim self-injects, the defendant can never be guilty if the victim is a fully informed adult making
