Criminal Causation and the Careless Doctor
| Author | John E. Stannard |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00935.x |
| Date | 01 July 1992 |
| Published date | 01 July 1992 |
July
19921
Crirninul Causation and the Cureless Doctor
Criminal Causation and the Careless Doctor
John
E.
Stannard
*
Issues of causation rarely crop up in criminal cases. The reason for this is obvious.
Where causation is in issue, a defendant will be trying to disclaim responsibility
for certain consequences of his actions. However, a person accused of serious crime
will
not, as a general rule,’ be answerable for consequences unless he intended
them or was, at the very least, reckless as to whether they would occur. This means
either that the consequences must have been at least foreseen by the defendant, or
at any rate that they must have constituted an obvious risk arising from the conduct
in question. Where this is proved, it will be virtually impossible to argue that the
consequences were not caused by the defendant. Where it is not, the charge
will
fail because of the lack of
mens
rea,
and
it
will therefore not be necessary to worry
about causation.
In
this context, homicide is the exception that proves the rule. A defendant can
be convicted of manslaughter or even murder in respect of a death that was neither
intended, nor foreseen, nor even an obvious consequence of his conduct.? Indeed,
he can be held liable for manslaughter even in cases where he foresaw no harm
to the victim at all.) This being the case, an argument based on causation may
become highly relevant.
One of the most common situations of this sort is where
D
(the defendant) has
caused injury to
V
(the victim),
so
that
V
requires medical treatment. If at the end
of the day
V
dies, can D argue that the death would not have occurred had it not
been for the medical treatment (or lack
of
it)? In the past, this defence has rarely
been successful in English law.4 The recent decision of the Court of Appeal
in
Cheshire5
shows that this situation is not likely to change.
The
Facts
of
Cheshire
The defendant, Cheshire
(D),
was involved in an argument with another man,
V,
in
a Greenwich fish and chip shop early
in
December
1987.
D
produced a pistol
and fired it at the ceiling, following which a struggle took place
in
which D shot
V,
wounding him severely
in
the thigh and stomach.
V
was
subsequently taken
to
hospital
where he was kept in intensive care and given extensive surgical treatment.
In
particular, following respiratory problems, a tracheotomy was carried out and a
tube inserted into
V’s
neck, where
it
remained
in
position for some four weeks.
Following the removal of the tracheotomy tube
in
the middle of January
1988,
V’s
condition began to improve to some extent. However, he continued to complain
of difficulty in breathing and, during the second week
in
February, was seen by
*Lecturer in Law, Queen‘s University of Belfast.
I
2
Strict liability
is.
of course, an exception
to
this.
An intention
to
do
grievous bodily harm
is
enough for murder;
D
need not contemplate any danger
to
life:
Cunningham
[I9811
2
All ER 863. Where death occurs as a result of
D’s
unlawful act.
D
will be guilty of manslaughter if the act was one which ‘any sober and reasonable man’ would
realise was likely
to
cause harm:
Church
[
1966)
I
QB 59.
DPP
v
Newbury and Jones
[
1976)
2
All ER 365.
Jordan
(1956)
40
Cr App Rep 152 is the exception.
[
19911
3
All ER 670.
3
4
5
577
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