¹ Lord Goff, (1988) 104 L. Q. R. 30 at 44.

² Although this principle is recognised to a limited extent in the law of tort, it differs from the criminal rule in certain respects, particularly in that if A instigates B to commit a tort, both A and B are regarded as causing the result as joint tortfeasors. The law of tort does not distinguish between degrees of complicity as the criminal law does. Also, the law of tort is preoccupied with compensating the victims of disaster, whereas the criminal law is much more concerned with moral aspects.

³ Blame and Punishment (1987) pp. 140–141 (reprinted from (1985) 73 Calif. L. Rev. 324). See this illuminating study generally; also Fletcher, George P., Rethinking Criminal Law (Boston 1978) pp. 366–368Google Scholar, 582.

⁴ Hart, and Honoré, , Causation in the Law (2nd edn 1985) p. 388Google Scholar, says: “Only when an instigator uses threats, lies or authority to induce the principal to commit a crime can he reasonably be said to ‘cause’ the principal so to act. In other cases of instigation, e. g. by bribes or the giving of disinterested advice, the principal may be said to act in consequence of the instigator's conduct, so that there is a different variety of ‘causal connection’.” (I think it would be clearer to say that in both cases the instigator may cause the crime in fact, but only in the first case are his words the imputable as well as the but-for cause.)

⁵ The decisions of some civil courts in the U. S. A. have transgressed the bounds of reason. Smokers have been awarded huge damages against tobacco companies for negligence causing their harmful addiction; and similar steps are currently being proposed in Britain. Even if they are misguidedly allowed to succeed, the criminal law should not take this course.

⁶ [1982] 1 W. L. R. 425, 1 All E. R. 916, 74 Cr. App. R. 348.

⁷ (1983) The Times, February 4, [1983] Crim. LR 393.

⁸ Mastin (1834) 6 C. & P. 396, 172 E. R. 1292. Cp. Dubois (1959) 32 C. R. 187 (Quebec).

⁹ Mastin, last note.

¹⁰ (1882) 9 Q. B. D. 308.

¹¹ [1971] 2 All E. R. 357. The offence in Impress was one of “causing” an event described in non-human terms (there, a polluting leak). Note, however, that an offence of “causing” another person to produce a forbidden result is not read as subject to the novus actus principle: see Williams, , Textbook of Criminal Law (2nd edn 1983) pp. 938–939Google Scholar.

¹² This was assumed by the court, and was afterwards decided in Alphacell Ltd v. Woodward [1972] A. C. 824.

¹³ [1972] A. C. 824.

¹⁴ [1989] Crim. L. R. 442.

¹⁵ For some difficulties with the doctrine see below, n. 37.

¹⁶ In view of the paucity of recent authority to support the novus actus doctrine, and the occasional departure from it, courts that are unpersuaded by philosophical or psychological arguments may look more kindly upon the rather cloudy statement of principle by someone within the charmed circle of the judiciary. Lord Wright said that causation is broken by “something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic” (quoted in Smith [1959] 2 Q. B. 35). A novus actus fits this description nicely.

¹⁷ The present discussion turns only on the novus actus rule. Various other objections to the clauses in question will be stated in a pair of articles to appear in the Criminal Law Review in 1990.

¹⁸ The subclause has the further effect that where the person procured etc. is not guilty of the offence in question, the procurer etc. is normally not guilty of an offence of causation. This is of importance in respect of assisting suicide. If D provides X with a pill to commit suicide, and X knowingly commits suicide accordingly, D is protected by subcl. (3) from guilt of murder in causing X's death, even though that was his purpose. D is, of course, guilty of the statutory offence of assisting suicide.

¹⁹ (1840) 9 C. & P. 356, 173 E. R. 867, 2 Mood. C. C. 120, 169 E. R. 48.

²⁰ Crompton's Justice 24. 1.

²¹ Text at nn. 8–10 above.

²² [1983] Crim. L. R. 105. The point was not covered in the first draft of the code produced under the chairmanship of Professor Smith; perhaps he was unable to persuade his colleagues of the value of his principle, or perhaps the team were committed to a minimalist statement of causation (as is the present draft).

²³ Clause 26(1)(b) brings in action through accessories; a person can be a principal if “he does at least one such act and procures, assists or encourages any other such acts by another.” But “any” is too weak; the definition should run: “procures, assists or encourages another or others to do the remainder of such acts.”

²⁴ The words “procures, assists or encourages” in the definition of a principal in cl. 26 are a repetition of the words in cl. 17(3), which takes accessories out of the requirements for causation. A person can become an accessory by assisting the perpetrator without the latter's knowledge or consent, but he must know that the perpetrator intends to commit the crime or is engaged upon it (or, in “common purpose” cases, that he may commit it). This requirement of knowledge was quite evidently intended to apply to the word “assists” in both clauses. The conclusion is that Michael did not assist the small boy within the meaning of the Draft Code.

²⁵ The latest and best case is Roberts (1971) 56 Cr. App. R. 95.

²⁶ [1981] 1 W. L. R. 690.

²⁷ Note 7 above. The judgment in this case is important because it shows the acceptance by the Court of Appeal of the doctrine of autonomy expounded by Hart and Honoré.

²⁸ Cp. the well-known tort case of Scott v. Shepherd (1773) 2 W. B1. 892, 96 E. R. 525. It may be thought that the acts of the intermediate throwers in that case were so plainly negligent and unnecessary as to insulate the first thrower (who was not shown to have intended injury) from criminal responsibility; but De Grey C. J. assumed otherwise. The problem is discussed by Lanham in (1979–80) 12 Melbourne Univ. L. Rev. 490 at 491–494, but I would query, for English law, the author's conclusion on p. 494. Other instances of an intervener's act not ending the liability of an initiator, where the intervener acted under stress caused by the initiator, are the escape cases mentioned before. See also Madison v. State (1955) 234 Ind. 517, 130 NE 2d 35.

²⁹ Langham v. Crisp [1975] Crim. LR 652 (Crown Court). For the practical difficulties see comment in 139 JPN 669.

³⁰ Porter v. Honey [1988] 1 W. L. R. 1420.

³¹ Note 11 above.

³² Russell [1933] VLR 59. Cp. Popen 60 CCC (2d) 232 (Can.), and the American authorities there cited.

³³ See, in addition to Stone [1977] Q. B. 354, the three cases cited in my Textbook of Criminal Law (2nd edn. 1983) p. 268.

³⁴ Note 26 above.

³⁵ Paragraph (b) is founded upon the wording of the Model Penal Code, §2.03(2)(b), (3)(b), but I have added the word “trivial” to carry the meaning of paragraph (a) in the Draft Code.

Cohen, Meir Dan has objected to the definition in the M. P. C. on the ground that the inclusion of the word “just” makes it circular: Encyclopedia of Crime and Justice, ed. Kadish, Sanford H. (New York 1983)Google Scholar i 165. The objection seems to me to lack force: what the definition does is to make it clear that a question of justice is involved, which enables the tribunal to exercise a degree of discretion.

³⁶ These words do not prevent the first actor being convicted as accessory on account of the subsequent act of his accomplice, because the issue of causation arises only in respect of the acts of the alleged perpetrator, not of the accessories.

³⁷ “The offence in question” is intended to mean “the offence for which the actor is charged,” but I avoid using this phrase because the issue of the first actor's liability may arise only incidentally, the charge being against another.

The requirement that the intervening actor must be guilty of the offence in question makes it unnecessary to stipulate that he must have attained the age of responsibility. There is some difficulty here. The age of criminal responsibility is only 10 (or, if the presumption of doli incapax is not rebutted, 14). If a case like Michael (n. 19 above) recurred, except that the intervening boy was aged 14 and he himself acted with murderous intent, it may seem absurd that his intervention should insulate Michael from liability as perpetrator of murder. But (1) the absurdity need not affect the practical outcome, for the first actor would be guilty of an attempt, for which he could be punished as severely as for the completed crime. Also, if there is an absurdity it is one that appears to represent the present law under the novus actus rule; and modifying the rule to avoid the anomaly would itself not be free from anomalies. If, for example, it were provided that a voluntary intervener does not break the chain of causation unless he is aged, say, 20, one can imagine situations where this modification would itself have a strange result.

If the intervener becomes guilty only of a lesser offence than that charged against the first actor (e. g. of provocation-manslaughter rather than murder), the first actor remains guilty of the graver offence.

Problems of proof may cause difficulty in applying the novus actus rule. Suppose that Dl and D2 successively and independently wound V with murderous intent, and V dies from loss of blood caused by both wounds together, when he might not have died from either alone. On normal principles D2 could be convicted of murder, since he “must take his victim as he finds him,” but Dl could not be, though he could be convicted of attempt. This application of the rule may seem to reach an arbitrary conclusion, but not an intolerable one. Suppose, however, that the prosecution cannot establish whether it was Dl or D2 who struck first? Then it would seem that neither can be convicted of murder, although one or other of them must be guilty of this crime. The point could be met if it were provided that “where two persons independently commit a criminal attempt to cause a result, and it is proved beyond reasonable doubt that one of them caused it but not which one did so, either or both may be convicted of causing it unless it is proved beyond reasonable doubt which one did not.” This rule would, I think, be justifiable; but it may be thought that the situation is too unlikely to arise to deserve legislation.

³⁸ An instance would be where the intended victim of a poisoning plot finds the poison, and, realising what it is, commits suicide with it.

³⁹ My draft follows the analogy of clause 49(4) of the Draft Code (attempt). The Law Commission is probably heavily influenced by decisions of the lords that limit the discretion of judges to direct juries on questions of law. It was, no doubt, politically wise of the Law Commission not to attempt to qualify these decisions, regrettable as they are. Under the above draft the judge will be able to withdraw a case from the jury on the ground that no sufficient evidence of causation has been given, but will probably not be able with safety to direct the jury that on the uncontested evidence imputable causation has been established, however clearly this may be the case.