questions whether the victim’s self-administration of drugs will break the chain of causation rendering the accused, the ‘drug-dealer’, not liable for the death or injuries that follow administration.
(3) The final circumstance is more of a mixed bag and consists of where the victim refuses medical treatment, exacerbates their injuries through neglect or self-aggravation, or ends their own life as a result of the defendant’s conduct.
We shall consider each in turn.
Fright and flight
As noted above, when considering if the victim’s acts broke the chain of causation, the court looks to see whether their actions were foreseeable or unreasonable. According to the Court of Appeal in R v Roberts (1971) 56 Cr App R 95, the court is to question whether the response of the victim was ‘daft’ in the circumstances.
Importantly, the court is not concerned with whether the victim acted reasonably, but, rather, whether the victim’s reaction was reasonably foreseeable by the defendant (emphasised by the Court of Appeal in R v Mackie (1973) 57 Cr App R 453). The arbiters of fact are, therefore, concerned with whether the defendant foresaw that the victim would act in a certain matter. If it is not reasonably foreseeable, the victim’s act may be considered ‘daft’ and thus break the chain of causation. If, however, their actions are reasonable foreseeable, the chain will remain intact and the defendant will be liable for any death or injury that follows. Figure 2.7 below will assist on this point.
case example
Charge: ABH (OAPA 1861, s 47)
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Acts of the victim must be ‘daft’ in order to break the chain of causation
In R v Roberts (1971) 56 Cr App R 95, the defendant, whilst driving the victim home from a party, began to make unwanted sexual advances towards her. The defendant also threatened her and touched her coat. The victim jumped from the moving car and suffered harm. The defendant was convicted in the Crown Court.
The Court of Appeal upheld his conviction, ruling that the acts of the victim were neither unreasonable nor unforeseeable.
Stephenson LJ commented:
The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?
Roberts was subsequently applied and approved by the Court of Appeal in R v Williams and Davis [1992] 2 All ER 183. In that case, the victim, a hitchhiker, jumped from the defendant’s car which was travelling at 30mph after being threatened to hand over his money. The victim died as a result of a serious head injury. The defendants were convicted of manslaughter at first instance, but their convictions were quashed on appeal on account that the trial judge had failed to give adequate directions to the jury. On appeal, the test of ‘daftness’ was slightly modified by Stuart-Smith LJ who stated that the jury must instead consider whether the victim’s act was
proportionate to the threat, that is to say that it was within the ambit of reasonableness and not so daft as to make it his own voluntary act which amounted to a novus actus interveniens and consequently broke the chain of causation.
His Lordship went on to explain the state the law:
The jury should consider two questions: first, whether it was reasonably foreseeable that some harm, albeit not serious harm, was likely to result from the threat itself; and, secondly, whether the deceased’s reaction … was within the range of responses which might be expected from a victim placed in the situation which he was. The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation.
The test of ‘daftness’ is still employed to this day alongside the idea of a ‘range of responses’. There was, however, a conflicting of authority with Williams, namely that of R v Evans [1992] Crim LR 659, where the Court of Appeal ruled that the test to be applied is whether the flight was a ‘natural consequence’ of the accused’s behaviour. If it was not, the chain of causation is broken. That test, however, has been dismissed by the subsequent decision of R v Corbett [1996] Crim LR 594. We remain, therefore, concerned with the test of ‘range of responses’. The test of ‘range of reasonable responses’ was adopted by the Court of Appeal in R v Tarasov [2016] EWCA Crim 2278.
A couple of questions arise from this issue:
(1) What does the court mean by a ‘range of responses’ from the victim?
(2) What does the court mean by ‘reasonable foreseeability’ on the part of the defendant?
The first question was answered by Stuart-Smith LJ in Williams and later affirmed by the Court of Appeal in Corbett, which ruled that the jury should bear in mind any ‘particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation’. As a result, therefore, the range of responses will vary and fluctuate according to the victim’s age, mental capacity and other internal and external circumstances. For example, where the victim is intoxicated, the jury will be required to consider if the victim’s response was within the ‘range of responses’ of an intoxicated person. The test, therefore, is partly objective and partly subjective in that the jury are considering the individual characteristics of the victim, but from the standpoint of another individual with the same characteristics.
The second question was answered by the Court of Appeal in R v Marjoram [2000] Crim LR 372, which ruled that when dealing with the question of whether the victim’s reaction was ‘reasonably foreseeable’, the jury are concerned with whether the reaction was foreseeable to an ‘ordinary person’ and not to a person of the defendant’s age and characteristics. The defendant’s own inability to foresee the reaction of the victim is, therefore, not relevant to the question of causation, but may be relevant when one considers mens rea. In that regard, the test is objective and not subjective. In the recent case of R v Lewis [2010] EWCA Crim 151, the Court of Appeal held that in cases of death during flight, there must be a causal link, with the jury asking themselves whether the victim’s response ‘might have been expected’. Pitchford LJ made clear that the judge did not need to use the language of Williams so long as the fundamental nature of the test was communicated:
[The jury] could not have been in doubt that they were being asked to measure the nature of the threat posed by the unlawful act with the form of escape adopted by the deceased.
in practice
Ensure that you consider the specific facts of each case presented before you. For example, should there be a difference in law between jumping from a vehicle travelling at 30mph and from a vehicle travelling at 70mph? Many would argue that to jump from a vehicle travelling at high speed is daft and unreasonable. Others would argue that the victim’s reaction depends upon the situation they are escaping from. Consider both of these matters carefully and reach a reasoned conclusion.
Figure 2.7Fright and flight outcomes
Drug-dealing cases
A specific area of law was required to deal with the circumstance when the defendant supplied drugs to the victim who self-administered such drugs that then resulted in their death or injury.
Following the defendant’s original conduct, where the end result has come about because of the victim’s ‘free, voluntary and informed’ act, the chain of causation