A Very Brief Summary: Causation and Recklessness

This article is summarized from my lecture notes

For most of the non-fatal offences against the person, causation and recklessness are some of the very important elements in helping to establish the defendants culpability. i.e did the D’s action cause or were they a significant factor for the outcome due to their actions, and where they reckless in doing so.

Causation

Most offences have a causation element and in the law this is compromised of two things.

1. Factual causation asks if there is a link between what the D did and the result. I.e ‘But for’ for the D would the situation have arisen?. Of course this can be a sometimes difficult thing to prove for the prosecution, e.g the timeline of events can make thinks difficult.
2. Legal causation basically means that within the eyes of the law was the D liable because there was proximity in relation to the events and no novus actus (intervening act). Intervening acts can only wipe out causation if they were so significant that the Ds actions weren’t relevant to the conclusion anymore.

A few cases to illustrate causation in action:

R v Hughes

• Summary: Hughes was charged with causing death while driving uninsured. The issue was had he caused death by the manner of his driving. He himself wasn’t driving, could he have caused death by his manner of his driving, CoA convicted on him on that. Supreme court held in order for there to be proximity between what D did and death, there has to be more than just coincidence. Could have been anyone else.For one event to be more than a minimal cause of another, one has to find something blameworthy, this is seen as a contentious way of expressing the idea.

R v Lewis 2010 (in retrospect)

• Summary: Argument with taxi driver, and taxi driver started getting aggressive, he got out of the cab and started chasing them, one of the passengers is scared and runs into the road and gets run over. Left to the jury to decide, whether or not he really had been chasing them to determine whether there was a sufficient proximate cause.
  Minimal causation doesn’t matter.

Novus Actus

If a third party or even the victim himself freely and knowingly intervened to bring about the result, then that will break the chain of causation:  the D will then be off the hook and won’t be guilty. The test for novus actus is set very high.

R v Kennedy 2007 is the leading case on this subject

• Summary: K took drugs with his friend and they lived in a squat. He had drugs offered them to his friend too, they each injected themselves, but they got ill, k survived but his friend died. Liable for manslaughter. Did Kennedy administer the ‘poison’.? Argued that he had caused the administration.
  HoL held: assuming that the other person who died knew what he was taking and was free to make up his own mind and appreciate risk, then the v administered the drugs himself by self injecting and Kennedy did not cause the death.
  The whole law of complicity basic assumption= when you’re guilty of crime as an accomplice, the one who did the act is the prep and the others are accomplices, they are liable as accomplices as its enough they supported or encouraged the act. Kennedy encourages the act, but his friend knowingly took the drugs.

However it is important to remember that for there to be a successful novus actus, the intervener must have acted freely and have known what he was doing.

The following are cases where the necessary freedom and knowledge was found to be missing, and in these cases both D and the intervener are said to have “caused” the ultimate result:

R v Pagett 1983

• Summary: Pagett used girlfriend as shield. And police shot pregnant girlfriend. Both police and Pagett factually caused the death of the girlfriend. Both contributed to the death of the hostage. However, police weren’t freely intervening so novus actus= Pagett still guilty. Policeman was acting instinctively.

R v Martin 1881

• Summary: Accused of causing GBH in a movie theatre. Shouted fire after switching off lights in the theatre, everyone believed him and they panicked, many were injured. Convicted for causing GBH couldn’t rely on the people who did do the trampling as novus actus agents because what they did do they were only doing because Martin put them in that situation and they weren’t independently deciding to panic freely.

R v Roberts 1971

• Summary: Picked up hitchhiker girl, tried touching her skirt and in touching he was guilty for ABH as she jumped out of a moving car and got injured as a result.. It could be reasonably argued that the girl only jumped out of the car for fear of rape

Recklessness and Causation

In establishing a criminal act you also have to establish the Actus Reus (AR= the physical act of the D) and the Mens Rea (MR= the mental aspect). The MR generally includes intention or recklessness as to an act. The most important fault element in offences against the person is recklessness.

The prosecution must satisfy the fact that in being reckless:

1. The D took a risk which (in the view of the magistrates or jury) was an unreasonable one to take in the circumstances .
2. D himself foresaw the risk at the time of his conduct

Even the case law on recklessness generally suggests that normally even small risks should not be taken, unless there is some positively good reason to do so. So remember: If there’s no good reason for what you’re doing it could well be reckless in the eyes of the law.

Chief Constable of Avon v Shimmen (1987) 84 Cr App R 7

• Summary: S supposedly martial arts badass, tried to show off, smashed the window. He was charged for Criminal Damage on the basis of recklessness. He argued that he didn’t see the risk at all because he believed he was so skilled. He tried to argue that it was ok to take a very tiny risk as he had been confident in his bad ass martial art skills. Courts were like, please.

R v Cunningham [1957] 2 QB 396

• Original leading case in recklessness, confirmed in R v Gee
• Facts: D was just a petty thief but he was accused for poisoning, as he went to the basement to the gas meter, tried to smash open the box of coins to steal the coins, in order to do so he broke the gas pipes, and unluckily the gas went through and killed someone, so he was charged with poisoning. He argued he wasn’t reckless, as he had no idea that the gas would seep through the walls and endanger anyone else. Initially convicted on ordinary meaning of recklessness,
• Issue to think about: How far must the foresight go? Is it possible to foresee something subconsciously?

Booth v CPS [2006] EWHC Admin 192

• Summary: Mr booth walking down street saw friend on other side and ran over to the other side took a risk as he ended up on the bonnet of a car. Mr booth being prosecuted for Criminal Damage.= guilty as he foresaw possibility of the risk he might get hit by a car and still took it anyway.

Jones v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19

• Summary: CICA is statutory body. Jones a passenger in a car injured very seriously, injured by someone who ran out trying to commit suicide who ran in front of lorry and caused other surrounding accidents incl mr jones. He tried to argue through the suicide, person did commit the offence of gbh s20 by running into road he caused chain of events which resulted in injury. But CICA could only awards damages if it was present crime
  Issue: So would suicide person have foreseen the risks to everyone else as a result of their actions? Jones didn’t get compensation couldn’t ascertain if d had foreseen risk as he was dead now.

Criminal Justice Act 1967, s.8 *

• It can be difficult to determine what was happening in someones mind= this section helps us out
• Even if its obvious you don’t have to assume d knew what it was. A jury may infer that a person saw the results of their actions as it was probable. It is a subjective test so it depends on the court/ jury. And they use all the evidence and circumstances to help them decide.
• This section really, helps = if it would seem that the results of the action are foreseeable or probable, then the courts can decide that the defendant must have realized this risk too.

Further, there are some exceptions to the principle that D is not reckless if he did not advert to the risk at the time of his action. If he would normally have been aware of the risk but was overcome by anger and “forgot” it, a court may still find him reckless:

R v Parker [1977] 1 WLR 600

• Summary: Parker has the misfortune of living in the 1970s Slammed phone booth phone down and was found to be guilty of recklessness due to Criminal Damage (CD). Court held that suppressing knowledge of risk= infer d aware of such risks.
• In jones’ case above, this could be seen as different in this case as d may not be deliberately suppressing knowledge of risk as they could be possibly described as only thinking narrowly because they’re suicidal so perhaps not in the best frame of minds.

R v Harris (reported under R v Coley and Others) [2013] EWCA 223 at [49] – [59]

Summary: D seriously depressed and developing forms of schizophrenia. Set fire to own property but didn’t see risk of fire spreading and endangering his neighbors. Charged for CD as to endangering life. But CoA said that he was seriously unwell and probably didn’t foresee the risk, it wasn’t good enough to say that he would normally see the risk if he had been normal and well.

Intoxication

One of the issues surrounding many criminal cases is that the violence is often fueled by alcohol. However, in the eyes of the law, just because you wouldn’t have normally acted otherwise sober, it doesn’t mean you won’t be guilty. Voluntary intoxication in itself can provide a form of legal recklessness even where necessary foresight seems to have been absent on the facts. As my lecturer pointed out, however the prosecution must prove that D would ordinarily have been aware of the risk (so there is still some subjectivity involved)

DPP v Majewski * [1977] AC 443 (HL)

• Facts: M got seriously hammered in Essex and taken some various drugs. Assaulted police when they came to arrest him
• Hol held: he could still be found reckless. D can’t rely on self induced intoxication to rely on it as a basic intent offence. D cannot deny recklessness of ability to foresee risk of actions due to self induced intoxication. (random side note; the D later became a social worker.)

R v Allen [1988] Crim LR 698

• basically gives that you dont need to be seriously drunk

R v Brady [2006] EWCA Crim 2413 *

• Emphasizes that lack of awareness must be caused by self induced intox, if he may not have foresaw risk anyway then he might not be liable. Brady fell off a balcony after a few drinks.