Causation in Criminal Law: A New Look at Jordan, Smith, Blaue and Cheshire
| Published date | 01 October 1998 |
| Date | 01 October 1998 |
| DOI | 10.1177/002201839806200507 |
| Author | Solomon E Salako |
| Subject Matter | Article |
CAUSATION IN CRIMINAL
LAW:
A NEW LOOK AT
JORDAN, SMITH,
BLAUE
AND
CHESHIRE
Solomon E Salako*
Summary: This article re-evaluates cases decided on legal causation in criminal
law since Holland (1841) taking cognisance
of
advances in medical science,
good medical practice and judicial attitudes. It is argued that Re T (1992) and
Bland (1993) and cases sequel to them cast serious doubts on (and indeed
compel a restatement of) the principles
of
legal attribution relating to intervening
events and refusal
of
medical treatment.
Introduction
Of all the concepts in medico-legal discourse, 'legal causation' remains
controversial and elusive.1And yet, from Hale to Stephen and, more
recently,
Hart
and Honore,' common medical practice and the physician's
adherence to or departure from such practice are essential criteria in
determining whether the infliction of the wound by D on V is the legal
cause of V's death in homicide cases.
The advancement in medical science since
1841
when it was decided in
Holland' that it was reasonable to refuse to undergo treatment was not
taken into consideration in Blaue' where it was held that refusal of blood
transfusion on religious grounds did not break the chain of causation
because the original wound was still the operative cause of the victim's
death.
Two themes will be considered in this article:
(l)
that refusal of treatment
once reasonable in Holland and Blaue may now be unreasonable taking
cognisance of a line of cases on medical law such as Re T (Adult: Refusal
of
Treatment/ and Re S(A Minor) (Medical Treatment)" where it was
held that there had been a break in the chain of causation; and (2) that
the omission by the doctor to seek an order for compulsory treatment
where, V who has refused medical treatment, dies of the wound inflicted
by D is explicable in causal terms and may break the chain of causation;
a logical extrapolation of Re T and Re S (above).
Some theories of legal causation are considered below.
•LLM (London), MPhil (London), ACIS, Barrister, Senior Lecturer in Law, Liverpool
John Moores University.
ISee HLA Hart and Tony Honore, Causation in the Law (2nd edn, Clarendon Press.
Oxford, 1985).
2Hart and Honore, loc cit.
'(1841) 2 Mood &R 351.
4[1975]
3 All ER 446;
[1976]
Crim LR 648.
5[1992]
3 WLR 782;
[1993]
3 Med LR 83.
6[1993]1 FLR 376. See, too, Re W (A Minor) (Medical Treatment: Court's Jurisdiction)
[1992]
3 WLR 758;
[1993]
3 Med LR 87; cf Re C(Adult: Refusal
of
Medical Treatment)
[1994]
I All ER 819.
461
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