A Critique of Criminal Causation

DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb02662.x
AuthorAlan Norrie
Published date01 September 1991
Date01 September 1991
A
Critique
of
Criminal Causation
Alan
Norrie*
[Tlhe
principles
[of
causation]
to
be found
in
the common law
.
. .
are rcasonably wcll settled
and
can
be
stated quite
shortly.'-*
hitherto the judges have
made
little
progress
in
establishing [the] principles
[of
Introduction
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 Commis-
sion's own recent analysis,
in
restating the common law, only succeeds
in
replicating
its confu~ions.~
To
take the discussion of
the
refusal
of
a live-saving blood trans-
fusion
-
one of two crucial examples on supervening cause5
-
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 foresee-
abh6 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 concerningfa~rual,~ 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
~~ ~
*School of Law, University of Warwick.
This paper was presented at a BCL seminar on the 'Philosophical Foundations of the Common Law'
in
Oxford
in
November 1990.
My
thanks to all present for their very helpful comments, and particularly
to Jeremy Horder, Stephen Shute and John Gardner. Thanks also to Peter Rush for comments on the paper.
1-2 The Law Commission,
A
Criiriitial
Code
for
Eiiglaiidnitd
Wales
(Law Con1 No 177, 1989), comment
to Clause 17, p
188.
G.
Williams,
Text6ook
of
Criminal
Law
(London: Stevens, 2nd ed, 1983) p 382.
For coinments on causation in the Code Bill, see Williams,
'Finis
for
Novirs
Actits?'
[
19891 CLJ 391,
and
C.
Clarkson and H. Keating.
Crirriirial Law:
Text
mid
Mnterials
(London: Sweet and Maxwell,
2nd ed,
1990)
p 430.
The other example, medical maltreatment, is discussed below at p 699. This paper deals with the
problematic issue of supervening cause alone.
Law Commission,
op
cit
p 188, comments, para 7.17.
The Law Coniniission say (example 17(iv),
p
156):
'The refusal of the transfusion may be unforeseen
by
D
and not reasonably foreseeable, but
it
is
not sufficient
in
itself to cause death.
The
deutli
tvould
tior
have
occurred
without
the
,vouiid
iriflicted
6y
D'
(emphasis added).
In
other words, this is a case
of 'but for' causation.
One answer, though
I
shall argue an inadequate one, is given by Hart and Honore, who claim that
the relevant consideration is whether or not the victim's act was voluntary:
Caitsntiori iri
the
Lrrw
685
3
4
5
6
7
8
nre Moderii
Lnw Review
545
September I99
1
0026-796
I
71re
Modern
Lnw Review
[Vol.
54
I
suggest that
in
this example (and in the case of medical maltreatment, which
is discussed below) the problem is that the Law Commission has sought to restate
the common law principles as they emerge from the leading cases, believing them
to be essentially adequate.
In
so
doing, however, they can only include the difficulties
that exist within the law. What
is
the answer to this problem? Traditionally, lawyers
and academics have sought to resolve the problems
of
legal doctrine by engaging
in
deeper conceptual rationalisations and reconciliations of the surface tensions and
contradictions of the law. The outstanding illustration of this in the field of causation
is the work of Hart and Honore, which is examined below. More recently, however,
some academics have begun to question the value of such an approach, and to argue
that
it
would be more fruithl as a means
of
understanding the nature and development
of legal doctrine to recognise that the surface contradictions of the law are not to
be overcome by a more sophisticated ratiocination, but are rather founded upon
deeper tensions and contradictions within the form of law itself. This position, which
is adopted here,9 draws its conviction from the observation that even the most
sophisticated traditional treatises are often unsuccessful
in
overcoming the problems
in
law that they identify. Thus, it will be argued that for all its analytical strength,
Hart and Honore are unable to provide a sound philosophical basis for the criminal
law of causation
in
their
Causation
in
the
Law,
and that another, more critical, analysis
is required to explain,
if
not to rationalise, the vagaries
of
the law in this area.
A Critical Approach to Criminal Law
It
is surprising that criminal law, unlike, for example, the law of contract,I0 has
attracted little critical attention. The most noteworthy argument is that
of
Kelmanll
whose claim is that for all the intellectual enquiry that has gone into the criminal
law, the attempt to present it as a potentially rational process of law creation and
application is bogus. In reality, criminal law is essentially contradictory, and the
contradictions are only managed by a set
of
rhetorical and conceptual devices1* that
(Oxford:
OUP,
2nd ed,
1985)
p
361,
The relevant case,
R
v
Blaue
[
19751 3
All
ER
446
is also discussed
below at p.
695.
This article is part of a broader critical enquiry into the conceptual foundations of the criminal law
and the philosophy
of
punishment. With Hart
(Punishmertt and Repsonsibility
(Oxford: Clarendon,
1968))
I
agree that there is a deep homology between the work of the philosopher and the lawyer,
but against him,
I
argue that the connection revolves around the repetition of unresolved contradictions,
not their resolution through rationalisation. See my
Law, Ideology
and
Punishment
(Dordrecht: Kluwer,
199
I).
This present paper will appear in different form
in
a book entitled
Crime, Reason
arid
History,
to be published
in
the Weidenfeld Law
in
Context series.
The analysis rests
upon
a non-atomistic view of social life as involving an analytic duality of individual
powers and social causes.
A
theoretical underpinning for this perspective is provided philosophically
by
R.
Bhaskar,
’Ihe
Possibility
of
Naturalism
(Brighton: Harvester, chs 2.3,
1979);
and in psychology,
by the work of Rom Harre
(R.
Harre,
Personal
Being
(Oxford: Blackwell, 1983);
R.
Harre, D. Clarke,
N.
De Carlo,
Motives
and
Mecltanisrrts
(London: Methuen, 1985)), though these are not referred to
in
the text.
H. Collins,
The
Law
of
Contract
(London: Weidenfeld,
1986);
J. Adams and
R.
Brownsword,
Understanding
Contract
Law
(London: Fontana,
1987).
‘Interpretive Construction in the Substantive Criminal Law’
(1981)
Stanford
Law
Review
591.
See
also D. Nelken, ‘Criminal Law and Criminal Justice: Some Notes on their Irrelation’ in
I.
Dennis,
Crintinaf
Law
andhstice
(London: Sweet and Maxwell,
1987),
and ‘Critical Criminal Law’
14
Jo
Lnw
arid
Sociefy
105;
and
N.
Lacey, C. Wells and D. Meure,
Reconstructittg Criminal
Law
(London:
Weidenfeld, 1990). Lacey
eta/,
pp 26-27, briefly discuss causation in a way similar to the argument
presented herc. See also my
Law,
Ideology
arid
Punishmenf,
op
cir
chs
7(3),
8.
Kelman identifies ‘unconscious interpretive constructs’ involving the broadening and narrowing of
time frames, the disjoining and unifying of accounts, and broad and narrow views of the defendant
686

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