Factual Causation in Criminal Law

In my last few blog posts, we have been looking at several rules and tests that are used in criminal law to establish guilt, such as the tests for strict liability. The point of all of these requirements set out in the law is to ensure the defendant does actually have the required mens rea and actus reus of the offence they are being tried for. As these are set tests, everyone should be held to the same standards, even if some of these are subjective tests. This should result in a fair and just system. Part of the requirements will be that the defendant’s actions must be the thing that caused the criminal outcome, which requires there to be causation. This is what we will focus on in this blog post.

What is Causation?

Causation is exactly what it sounds like – it looks at whether the defendant’s actions (or omissions) were the actual cause of the outcome that led to the defendant being charged with a criminal offence. If there is no causation, then there is no crime as the defendant was not the one that led to the outcome occurring. They may have been partly responsible, or something else might have happened to interrupt the chain of causation. We will be looking at what does and doesn’t qualify as causation in this blog post and my next one.

Causation is relevant in all result crimes, which are crimes that require a particular result to happen for that offence to apply. For example, murder is a result crime, for which the result element is the victim dying. If the defendant’s victim does not die, they may be tried with attempted murder or GBH, but they cannot be guilty of murder without the result. On the other hand, conduct offences are those that only require the defendant to have acted in a certain way, regardless of the result. For example, theft is a conduct crime. If the defendant has appropriated their victim’s property against their will with intent to permanently deprive, they have committed theft, even if they later decide to give the item straight back.

Types of Causation

There are two different types of causation in criminal law. The first of these, factual causation, is the subject of this blog, so we will look at it in more detail later. It can essentially be summed up as the “but for” test and is the first test applied in courts.

The second type of causation is legal causation, which my next blog post will look at in more detail. Legal causation has four different elements. Firstly, the outcome must be caused by a culpable act, unless the offence is one of strict liability. Secondly, the defendant’s action must be a more than minimal cause of the result, although it doesn’t have to be the sole cause. Thirdly, there must be no new intervening act that would break the chain of causation. Finally, the thin skull rule states that the defendant must take their victim as they find them, so if the victim is particularly vulnerable and is harmed in a way the ordinary person wouldn’t be, there is still causation.

Factual Causation

As mentioned above, factual causation uses the “but for” test. This asks whether the damage would have happened “but for” the defendant’s act or omission. If it would have happened regardless of the defendant’s act or omission, then there is no factual causation as the defendant did not actually cause the damage. They would therefore be found not guilty of the offence. On the other hand, if the damage would not have happened but for the defendant’s act or omission, there is factual causation. Bear in mind that this does not necessarily mean a guilty verdict, as the court will still need to prove that there was legal causation and that there are no relevant defences.

The case R v White [1910] 2 KB 124 illustrates how factual causation works in practice. The defendant poisoned his mother’s drink with the intent to murder her. His mother did in fact drink a few sips and then retired to bed, where she later died in the night. However, the cause of death was actually found to be a heart attack, not the poisoned drink. The question posed in court was whether the defendant was responsible for his mother’s death, i.e., would it have happened “but for” the defendant’s actions. In this case, the victim’s death would have occurred regardless, so there was no factual causation and the defendant could not be found guilty of murder. Nevertheless, he was still found guilty of attempted murder.

Wrapping Up

Proving causation is a vital part of a criminal trial, as it shows the link between the defendant’s act or omission and the consequences. In my next blog post, we will be looking at how legal causation is tested for, so come back in two weeks for that!

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