ACTS CAUSATIVE OF DEATH
In the criminal law context, causation is a matter of common sense, not philosophical analysis.130 It is, for the most part, a question of fact for the jury, though it is decided in accordance with legal principles.131 The starting point is ‘but for’ or ‘factual’ causation, otherwise known as sine qua non. The test for factual/ but for causation requires the jury to consider whether, but for the actions of the relevant individual, the relevant harm would have occurred in the same manner and at the same time that they did. A ‘simple approach’ to ‘but for’ causation is to eliminate the individual’s conduct from the narrative and ask whether the result would have occurred anyway.132 If the answer is in the affirmative, the conduct of the individual did not factually cause the outcome. The focus is on the specific results at the specific time. The fact that a patient is terminally ill and likely to die from complications stemming from that illness (for instance, chronic infection or pneumonia) at an indeterminate point in the not-too-distant future does not absolve the individual who kills them by stabbing them. This is illustrated by the case of Dyson.133 The victim was terminally ill with meningitis at the time the defendant injured him, yet the injuries inflicted by the defendant were found to have caused the victim’s death since he died sooner than he would have from the meningitis. Thus, but for the defendant’s actions, the victim would not have died at the time and in the manner that he did.
The ‘but for’ test is, however, only the starting point of the examination of causation in criminal proceedings.134 ‘There arc many acts that are sine qua non of an event but are not either in law or common sense, the cause of it’.135 The individual’s conduct need not be the sole cause of the result. What is required is that the conduct in question was an ‘operating’ and ‘substantial’ cause of the event.136 Much jurisprudence has been dedicated to ascertaining what ‘operating’ and ‘substantial’ means. To be ‘substantial’, the act in question must be more than a ‘de minimis or minimal’ cause.137 As for an ‘operating’ cause, the chain of causation between the act (or omission) and the event must not have been broken by a novus actus interveniens such as a free, voluntary, and informed act of a third party or, indeed, the victim.138 When examining whether an act of a third party or the victim has broken the chain of causation, the court (or, more specifically, the jury) asks whether, having regard to the whole of the individual’s character (including their religious beliefs139), the intervening act was ‘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 consequences of what he was saying or doing’.140 Thus, a decision of a victim who is an adherent of the Jehovah’s Witness faith not to receive a life-saving blood transfusion did not constitute a novus actus
Differential treatment of end-of-life practices 181 intervenicns as it was reasonably foreseeable that an individual such as the victim (i.e. a person of the same faith) would not accept a blood transfusion.141 Similarly, acts undertaken by victims to escape violence (for example, jumping out of a window, escaping from a moving car, or running into traffic to escape an assault) are not only reasonably foreseeable but they also cannot be said to be free, voluntary, or informed such as to break the chain of causation.142
Relevantly, for instant purposes, it is possible for an individual to be guilty of a person’s death even though the immediate cause of the victim’s death was suicide, provided their suicide was a reasonably foreseeable consequence of the defendant’s conduct. In the Court of Appeal decision of Wallace,143 the Court held that there was no legal impediment (as opposed to evidentiary limitations) to the defendant being found guilty of murder even though the victim’s cause of death was lawful euthanasia in Belgium.144 The victim had been grievously injured after the defendant threw sulphuric acid onto his face and body. At the first trial, the trial judge determined not to leave the charge of murder to the jury on the basis that the acts of the doctors in Belgium in euthanising the victim constituted a novus actus intervenicns thus breaking the chain of causation. In contrast, the Court of Appeal determined that the question of murder could be left to the jury on the basis that they ‘may conclude on the very special facts of this case, that there was nothing that could decently be described as voluntary either in the suffering or in the decision by [the victim] to end his life, given the truly terrible situation he was in’ as a result of the defendant’s acts.14’ As the Court of Appeal observed:
It would, as the prosecution say, seem an odd result, if a defendant who paralysed one victim but not another in identical circumstances (so the second could take their own life, but the first could only do so through the intervention of a third party) would be legally responsible for the death of the second victim but not the first. In the event we consider that the jury could conclude on the facts as they were here that the acts of [the victim] and the doctors were not sensibly divisible; that the doctors’ (lawful) conduct in carrying out with their hands what he could not carry out with his own was but one link in the chain of events instigated by the defendant and, notwithstanding the intervening act of [the victim] and/or the doctors, the defendant’s conduct could fairly be said to have made a significant contribution to [the victim’s] death .,.146
The decision in Wallace serves to reinforce two important aspects of causation in English criminal law. The first is that, like causation in the coronial context, in the vast majority of cases there will be a chain of causation and the defendant’s conduct will be one of a number of‘causes’. In such cases, the defendant’s culpability will depend, inter alia, on whether their acts (or ‘omissions’) were a substantial and operating cause of the victim’s death. The second is that a decision by the victim to bring about their death by suicide does not, ipso facto, break the chain of causation provided it can be demonstrated that the victim’s decision was not a novus actus intervenicns And, relatedly, that the defendant’s conduct remained a substantial and operating cause of the victim’s death. The decision is also significant in terms of what is says about the intertwined roles of the patient and their doctors in end-of-life contexts including the description of suicide/euthanasia as an ‘act’.
The decision of Dear147 is also illuminating in this respect. In that case, the defendant slashed the victim’s face with a Stanley knife. The victim refused to seek medical treatment and, with the assistance of another man, managed to stem the bleeding. Nevertheless, several days after the attack, the victim was found deceased in his apartment. The immediate cause of death was exsanguination, with the autopsy revealing that a major artery in the victim’s face had been cut. It was accepted that that injury had been inflicted by the defendant. A note was located in the victim’s flat which suggested that he intended suicide. It was, however, not clear whether the victim had intentionally reopened his wounds or if the injury to the artery had inadvertently reopened (for instance, through an accidental bump). The defendant was convicted of the applicant’s murder. Significantly for instant purposes, the Court of Appeal confirmed that even if the victim had reopened his wounds with suicidal intent, ‘the jury were entitled to find that the defendant’s conduct made an operative and significant contribution to the death’.148
Finally, several cases have confirmed that a decision by doctors to withdraw life-sustaining treatment of patients in persistent vegetative states where continued treatment is no longer in their best interests, may be the immediate cause of death but it does not break the chain of causation between the defendant’s acts and the victim’s death. In such cases, the defendant’s unlawful conduct remains a substantial and operating cause at the time of the patient’s death.149 It is only when it can properly be said that the defendant’s conduct is ‘merely the setting in which another cause operates’ that the chain of causation may be said to have been broken (for instance, in the case of grossly negligent medical treatment).150
Based on the preceding, it is apparent that causation in the criminal law context is a fact-based assessment, which can go beyond a ‘but for’ examination of the defendant’s unlawful conduct to consider whether it was an operating and substantial cause of the relevant harm. There is, then, considerable overlap between the approaches to causation taken in coronial and criminal proceedings. The key points to take from the discussion of the principles governing causation in criminal proceedings for the instant inquiry are:
- • While the starting point is the but for test, the defendant’s conduct need not be the sole cause of the relevant harm;
- • If the defendant’s conduct was an ‘operating’ and ‘substantial’ cause of the harm, it will satisfy the actus reus element of the offence;
- • To be a ‘substantial’ cause, the conduct must ‘play more than a minimal part’ in the relevant harm.151 To be an ‘operating’ cause, the chain of causation between the defendant’s conduct and the harm must not have been broken by a novus actus interveniens',
- • A victim’s decision to bring about their death by suicide may not constitute a novus actus interveniens if the evidence is sufficient to demonstrate that the victim’s suicide was a reasonably foreseeable consequence of the defendant’s conduct.
The preceding sections have traced the origins and development of the common law definition of suicide for the purposes of ascertaining the meaning of the term as it is used in the Suicide Act 1961. That examination has revealed that ‘suicide’ has a common law meaning which comprises two central elements: (1) the doing of an act; (2) for the purposes (and with the intention) of bringing about one’s death. Given the longstanding interrelationship between the coro-nial and criminal jurisdictions, jurisprudence from each has been examined in order to distil the nature and scope of those two elements. That examination has resulted in the crystallisation of two principles central to the content and scope of the definition of suicide for the purposes of the Suicide Act 1961. Those principles can be summarised as follows:
- 1 Intention: only direct intention will satisfy the mens rea of suicide. Where the patient acts for the purpose of bringing about their death, that will be evidence of intention.
- 2 Causation: the patient’s act need not be the sole cause of their death. Provided it is an ‘operating’ and ‘substantial’ cause, that will satisfy the causation requirement.