Culpable Driving and Issues of Causation
| DOI | 10.1350/jcla.2012.76.5.797 |
| Author | Simon Cooper |
| Date | 01 October 2012 |
| Published date | 01 October 2012 |
| Subject Matter | Article |
Culpable Driving and Issues of
Causation
Simon Cooper*
Abstract
This article, focusing on road traffic homicides, considers the
extent to which notions of culpability and blameworthiness influence the
concept of causation. The article reviews the legal rules for determining
causation in criminal cases and recognises how a jury’s perception of
fairness can be determinative. It concludes by questioning the wisdom of
leaving emotive moral value judgements to a randomly selected jury.
Keywords
Causation; Legal/Factual; Driving; Homicide; Culp-
ability
A traditional analysis of the concept of causation in criminal law in-
volves answering two questions. The first question asks whether or not
the defendant caused the consequence in a factual sense. If he did, then
the second question asks whether or not the defendant caused the
consequence in a legal sense. It is the latter question which is critical
because a consequence might be factually caused by a defendant who
acts without any culpability. If David invites Veronica to dinner and she
is knocked down and killed by a dangerous driver as she crosses the road
to the restaurant, in a factual sense, she died because David invited her
to dinner. Had he not invited her, she would not have been knocked
down and killed. But no one could sensibly say that David should face
any sort of criminal liability for killing her. His conduct lacks any
culpable link between it and the outcome of Veronica’s death. In short,
he cannot be blamed. English law has come to identify this relationship
between conduct and the ensuing consequence as ‘legal’ causation.
As Ormerod has recognised, ‘[d]isputes abound as to whether . . .
causation can be properly seen as being exclusively an element of actus
reus or whether it ought also to be seen as including consideration of D’s
fault’.1 Tadros has argued that causation is affected by the state of mind
of the defendant and morality2 and Glanville Williams preferred to use
the term ‘imputable’ causation to describe the concept of legal causa-
tion, reflecting the view that the issue was really one of assigning
blame.3 In a detailed analysis, Padfield compared the differing approach
taken by the courts to the concept of causation by looking at (1)
homicide cases and (2) pollution cases where liability is strict. Padfield
* Senior Lecturer, Salford Law School, University of Salford, Manchester;
e-mail: S.Cooper@salford.ac.uk.
1 D. Ormerod, Smith and Hogan’s Criminal Law, 13th edn (Oxford University Press:
Oxford, 2011) 81.
2 V. Tadros, Criminal Responsibility (Oxford University Press: Oxford, 2005).
3 G. L. Williams, Textbook of Criminal Law, 2nd edn (Stevens & Son: London, 1983).
The Journal of Criminal Law (2012) 76 JCL 431–437
431
doi:10.1350/jcla.2012.76.5.797
The Journal of Criminal Law
discerned that in determining whether legal causation can be estab-
lished in homicide cases, ‘the courts have given priority to the assess-
ment of moral blame’4 whereas in pollution cases ‘[a] different value
judgment is made: the courts are less concerned with whether the
defendant is to blame’.5
It seems unarguable that, for offences of homicide at least, notions of
culpability and blameworthiness are inextricably and perhaps inevitably
mixed up with the concept of causation. The ultimate arbiter of whether
or not D’s conduct caused the result in question is the jury. The task of
the judge is to explain to the jury properly the relevant legal principles,
but as with many other jury decisions, the potential for allowing a moral
value judgement to dominate those legal principles is ever present.6
Recently, driving offences that have resulted in death have presented
some unusual factual situations involving issues of causation. The cases
call into question the wisdom of leaving emotive moral value judge-
ments to a randomly selected jury, and the true nature of causation has
been brought sharply into focus.
Driving offences involving death
In principle, where a driver has caused the death of another person and
it is alleged that the circumstances might give rise to criminal liability,
issues of causation ought not be treated differently from any other
species of homicide. It follows that for causation to be established for
driving offences that result in death, the defendant should have per-
formed an act that is (in accordance with well-established principles)
both the factual and legal cause of that death. The principles would
therefore require that (1) the defendant’s...
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