Rethinking Causation in English Criminal Law
| Author | Grant Firkins |
| DOI | http://doi.org/10.1177/00220183231151918 |
| Published date | 01 February 2023 |
| Date | 01 February 2023 |
| Subject Matter | Articles |
Rethinking Causation in English
Criminal Law
Grant Firkins
Liverpool Law School, University of Liverpool, UK
Abstract
This article challenges English criminal law’s approach to causation. In doing so, it proposes
replacing the standard tests of causation with a single test, known as ‘INUS’causation –
where a cause is an insufficient but necessary partofanunnecessary but sufficient condition. It
argues that the standard tests represent a normative exercise in finding the defendant (D)
responsible for a prohibited outcome, often grounded only in D’s moral responsibility for
that outcome. This approach is problematic because moral responsibility is irrelevant to causal
responsibility; and not distinguishing causal responsibility from moral responsibility results in
inappropriate criminal-responsibility ascription for result crimes. INUS would provide a single,
non-normative test of causation; a metaphysical one that offers a robust causal enquiry that
focuses only on causal responsibility, which contributes appropriately to criminal-responsibility
ascription. INUS would also yield practical benefits. It would be able to engage with causal
enquires in a broader range of cases on a more principled, clear and consistent basis.
Keywords
Insufficient but necessary part of an unnecessary but sufficient condition, causation, moral
responsibility, criminal responsibility, culpable wrongdoing, causal responsibility
Introduction
On 21 October 2021 the actor Alec Baldwin was filming on the set of the upcoming film Rust when a
prop gun he was pointing at cinematographer Halyna Hutchins discharged a live bullet that killed her.
Baldwin denied pulling the trigger and it is alleged that the prop supplier company distributed a mix of
dummy and live ammunition on set. Amongst other factors, the question of whether Baldwin should be
criminally liable for Hutchins’death depends on whether his conduct was a cause of her death, which
also speaks to his broader criminal responsibility. That specific–but crucial –causal enquiry forms the
backdrop for this article. It directly challenges English criminal law’s standard tests for causation –the
Corresponding author:
Grant Firkins, Liverpool Law School, University of Liverpool, Liverpool, UK.
Email: g.firkins@liverpool.ac.uk
Article
The Journal of Criminal Law
2023, Vol. 87(1) 18–38
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231151918
journals.sagepub.com/home/clj
legal doctrines that govern the connection between the defendant’s(D’s)conduct and outcome in result
crimes.
1
It is uncontroversial to say that the standard tests are problematic. The ‘but-for’test of factual caus-
ation leads to both over and under-inclusive results and the additional criteria, known as legal (or ‘prox-
imate’) causation, have rendered the law of causation ‘unstable and irrational’.
2
However, there is a
further, neglected problem with these standard tests in the context of criminal-responsibility ascription.
This article argues that those tests represent a normative
3
exercise in finding D responsible for a prohib-
ited outcome, often grounded only in D’s moral responsibility
4
for that outcome. Such an approach is
problematic because moral responsibility is irrelevant to causal responsibility; and a failure to distinguish
causal responsibility from moral responsibility results in inappropriate criminal-responsibility ascription
for result crimes.
Criminal responsibility is central to criminal justice because it concerns the basis on which individuals
are called to account for criminal conduct.
5
The claim that the standard tests contribute inappropriately to
criminal-responsibility ascription is therefore important. It reveals that individuals are inappropriately
called to account for criminal conduct in result crimes.
This concern prompts my examination of an alternative approach to causation in English criminal law.
The article contends that it is preferable for English criminal law to adopt a single, non-normative test of
causation; a metaphysical one that offers a robust causal enquiry that focuses only on causal responsibil-
ity. It examines the potential utility of the ‘INUS’test of causation: Which holds that a cause is an insuf-
ficient but necessary part of an unnecessary but sufficient condition. It argues that the INUS account of
causation is the most rational metaphysical account of causation that criminal law could adopt, and would
offer several practical benefits.
The analysis of causation in terms of necessary and sufficient conditions is the most favoured line of
metaphysical causal enquiry, stemming back to Hume and Mill.
6
However, even though INUS causation
is considered by some to be the most sophisticated attempt to analyse causation along these lines,
7
it
rarely features in academic scholarship on criminal law. This article, therefore, fills an intellectual gap
by proposing INUS causation as an alternative approach to causation in English criminal law and exam-
ining its practical utility.
The article starts, in the ‘Causation in English criminal law: Ascribing moral responsibility’section, by
analysing the standard tests in English criminal law. It claims that these tests represent a normative exer-
cise in finding D responsible for a prohibited outcome, often grounded only in D’s moral responsibility
for that outcome. Such an approach to causation gives rise to incoherence and uncertainty. Then, the
‘Criminal law inappropriately ascribing criminal responsibility’section demonstrates why that approach
is problematic in the context of criminal-responsibility ascription. Moral responsibility is irrelevant to
causal responsibility; and not distinguishing causal responsibility from moral responsibility results in
inappropriate criminal-responsibility ascription for result crimes. This is because both notions –causal
1. ‘Result crimes’, such as murder, are so called because they require a proscribed outcome to be caused. Whereas, ‘conduct
crimes’, such as dangerous driving, are so called because they do not require a prohibited outcome to be caused.
2. A Norrie, ‘A Critique of Criminal Causation’(1991) 54 Mod Law Rev 685–701, 701.
3. This article refers to the concept of ‘normative’as a value judgment about the desirability of a situation. In other words, instead of
describing the world as it is, the term ‘normative’refers to the idea of how things should, or ought to, be.
4. This article refers to the notion of ‘moral responsibility’as a moral reaction in the blaming sense. That is, an individual is morally
responsible for something bad or wrong if that individual is blameworthy for that wrong thing.On this view, blame is ascribed to
an individual for something when it is appropriate to have some negative reaction towards them because of (a) some type of
control (i.e. capacity), and (b) defective exercise of that control, exhibited in their conduct (i.e. a wrong or defective choice).
Most criminal-law scholars use the term ‘culpability’or ‘fault’to refer to D’s blameworthiness. As such, these terms will
used interchangeably in this article.
5. A Loughnan, Self, Others and the State: Relations of Criminal Responsibility (Cambridge University Press, 2020) 3–4.
6. E Sosa and M Tooley (ed.) Causation (Oxford University Press, 1993) 5.
7. Ibid, 8.
Firkins 19
To continue reading
Request your trial