In every result crime causation in fact and law must be established. Difficulties can arise when the latter test is contested by a Novus actus interveniens. The defendant’s (D) conduct must be a ‘substantial’ cause, but the use of the word is misleading and seems to mean only that D’s contribution must be more than negligible or be so minute that it will be ignored under the ‘de minimise principle’
Result crimes requires defendants to satisfy both legal and factual causation to be held accountable for the crime. Causation in fact uses the ‘but for’ test which is expressed as if the defendant did not act upon it the result would not have occurred. However, legal causation questions whether the respondent was a substantial and operating cause to the victim’s harm.
Problems occur with legal causation because it is said that it has to be a substantial cause.
Additionally, Novus actus interveniens can break of the chain of causation. An unrestricted intentional and knowledgeable act of third party renders the novel act not a substantial cause of the outcome. Hence the defendant’s (D) contribution needs to be more than de minimis because it was not their responsibility that the action occurred.
In R.v Cheshire (Cheshire), the court advanced that the act of the accused must not be the only cause of the demise. It is adequate if his action considerably contributed to the victim’s death. Therefore, requirements were not needed to show that the respondents act was the substantial cause of death. Medical negligence will not break the chain of causation by itself and the carelessness of the staff was not so abnormal to break the chain of causation.
A criticism of the case of Cheshire is that at the time of the victim’s death, the actions of the D no longer were compelling sufficiently to cause death. The court mentioned that the negligent treatment was the instant cause of death.
The Court of Appeal held in Kimsey. which involved racing cars along the public road, killing the driver of one of the cars in the race, while the term ‘substantial’ could be used, it may lead the jury to consider that the cause really had to be substantial where the omission or act leaves no rational uncertainty to the defendant’s intention to oblige the crime, he will be charged with attempting which is misleading as it only means more than slight link also it has not been given an ordinary meaning in the cases
. The defendants driving caused the death had to be ‘a cause’, not necessarily the principal cause of the death. There had to be more than ‘a slight or trifling link’ between the driving and the deat.
where the victim was stabbed by the defendant, but the wound largely healed. Consequently, the victim was injected with a drug that he was allergic to and passed away. The defendant was not liable of killing, as the cure was so peculiar and negligent that the injury was just the scene of the death, not the cause itself.
In those two cases mentioned above, the courts did not have to consider the effects of medical treatment which fell short of the standard of care that was excepted from competent and experienced practitioners.Although, the negligence in the treatment was the instant cause of the death. Whereby, the jury should not have favoured it as eliminating the accountability of the defendant and the contribution of his acts that were insignificant.
In conclusion, the explanation of substantial is left to the combined wisdom of the jury to agree upon. Furthermore, imprecise legal concepts will be interpreted by common sense of the citizen’s and not through the constricted lens of training and tradition of lawyers in general or in practice. The broad-brush approach includes the law, common sense and policies that takes everything included into consideration to further achieve justice in criminal law. Therefore, the outcome of this approach is positively required and desirable in the law.