A Critique of Criminal Causation

Abstract

What happened between 1983 and 1989 to occasion this turnaround in the fortunes of the criminal law's conception of causation? The answer is nothing, and the argument of this paper will be that Williams' assessment of the position is much closer to the mark than that of the Law Commission. As a result, the Law Commission's own recent analysis, in restating the common law, only succeeds in replicating its confusions.4 To take the discussion of the refusal of a live-saving blood transfusion one of two crucial examples on supervening causeS the Commission's argument does not properly support the conclusion advanced, that an original assailant has caused ensuing death. It is argued that the refusal is not sufficient in itself to be the legal cause of death, even if it is unforeseen and not reasonably foreseeable.6 While it is obvious that a refusal to accept blood can only form part of a causal sequence leading to death where some prior act has occasioned a serious condition of bleeding, so that the refusal by itself can never be the sufficient cause of death, this is an observation concerningfactual,7 not legal, causation, and does not address the question of whether the causation is to be imputed to the accused in law. What if the victim refused the transfusion out of spite for the accused? Would the Law Commission still maintain that the assailant had caused the death, given that the wound would remain a necessary condition, and the refusal could still not be said to be sufficient to cause death? Some indication of what might be the relevant means for breaking the factual chain of causation in such a case is necessary in order to distinguish, for example, the religious from the spiteful victim, but the Law Commission do not provide it.8