A word needs to be briefly said about transferred malice. A defendant may be guilty of injuring a person other than his intended victim under this doctrine. However, there has to be a coincidence of both the Mens Rea and the Actus Reus (Guilty Act), see Latimer. If the defendant has the mens rea for a different offence from that which he commits however, the intent cannot be transferred, see Pembliton. Based on this it could be said that Andy has the mens rea for assault as he did tell Bill to ‘shut up’ (which could constitute an assault if it could be should that Bill ‘apprehended immediate and unlawful personal violence’) and kicked the ball in Bill’s direction. If this was shown then Andy may be guilty of Assault Occasioning Actual Bodily Harm under s.47 OAPA even if his intended victim was Bill. Andy could still be convicted under s.47 even if charged under s.20 despite s.20 not being proven.
Another issue, which arises from this problem question as regards Andy’s criminal liability, is one of, recklessness, particularly in relation to criminal damage. Liability for such an offence is defined in the Criminal Damages Act 1971:
‘s.1 (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether such property will be damaged shall be guilty of an offence’
Until recently, the test for recklessness, regarding criminal damage was laid down in Caldwell. The test used was an objective one. This means that the risk should be obvious to the reasonable man, the defendant’s age, mental and physical characteristics will not be taken into account.
However, this decision was overturned in the very recent case of G. In this case it was held that 2 boys aged 11 and 12 were not guilty of criminal damage under s1(1) because they could not have ‘reasonably foreseen’ that their actions would cause the extent of damage that it did. It was agreed that
‘a person acts “recklessly” [within the meaning of s1 of the Criminal Damage Act] with respect to (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that will occur, and it is in the circumstances known to him, unreasonable to take the risk’
This decision introduces an element of subjectivity in the law relating to recklessness. This statement makes it clear that the risk should be obvious to the defendant themselves and not as was previously stated ‘the reasonable man’ and early indications are that the decision has been welcomed by the majority. However, this decision is limited to cases of Criminal Damage and will not as yet be extended to other areas of the criminal law.
Going back to the scenario and Andy’s liability for Criminal Damage, under the old law, Andy would probably have been guilty of ‘recklessness’. However, under the present law, the fact that Andy is only 12 (the same age as one of the boys in G) would be taken into account and he would probably not be convicted of criminal damage under s.1(1).
Now we come on to the Criminal Liability of Ethel. Ethel would probably guilty of an assault on Bill, under s.39 of the Criminal Justice Act. This is because all that is required for an assault to have been committed in the Criminal Law is the victim needs only to ‘apprehend immediate and unlawful personal violence. The act need not involve any physical contact, this would be an assault and a battery. There is little doubt, based on the definition in Fagan that Ethel has committed an assault as it is clear that Bill does apprehend an immediate and unlawful personal violence as he runs away ‘terrified’, which leads to Bill’s subsequent accident.
However, there is still one important element of criminal liability that has not been discussed. This relates to causation. Causation can be defined in general terms as
‘the relationship between an act and its consequences’
In other words, for causation to be proved it has to be shown that the defendant’s act (Andy and/or Ethel) caused the harm to the victim (Bill). . In this case it was held that the defendant was still liable for his victims death despite a series of events, which occurred whilst getting the victim to hospital. The chain of causation can only be broken by a Novus Actus Interveniens (new act intervening). This is an act, which ‘breaks the causal connection between a crime committed by the defendant and subsequent happenings’. An example of where this was the case was in Jordan, which will be discussed below. Also, there are two types of causation – factual caustion and legal causation. Factual causation involves the ‘but for test’, established in White. Factual causation can only be established if it is shown that ‘but for’ the defendants act/negligence the harm to the victim would not have occurred. Once factual causation is established legal causation will then need to be established for a defendant to be guilty. Legal causation requires that it be shown that the victims act
was ‘an operating and substantial cause’ at the time of death, as stated by Lord Parker, in the case of Smith. Causation in fact does not always mean there will be causation in law.
As regards the issue of causation within the question there are some important observations that need to be made. Firstly although, Andy would be may be guilty of causing harm to Cilla, it could not be said to be guilty of starting the ‘chain of causation’, which lead to Bill’s death. Similarly, it could be argued that although ‘but for’ Ethels actions/assault Bill would not have been struck by the cyclist, there is still the possibility of a ‘novus actus interveniens’, which would break Ethel’s liability, possibly for murder. The mens rea for murder simply being intention kill or cause Grievous Bodily Harm, which it could be argued that Ethel did intend, by threatening Bill. On the other hand, it was more of an ultimatum i.e. if you don’t implies he will only get hurt if he doesn’t get off her property.
In addition, it could be argued, the doctor’s action’s could constitute a ‘novus actus interveniens’ as when Bill was reasonable ok when he went to casualty. However, by giving Bill a sedative, which Bill had, a reaction could be seen to be a ‘novus actus interveniens’. This particular event would come under another principle associated with causation, the fact that you take your victim as you find them. This includes any allergies the victim may have which are known or unknown to either the defendant or the victim.
There has only been one case where the acts of the medical profession have been held to break the chain of causation. In the above mentioned case of Jordan , the act of a doctor in administering a drug to which unbeknownst to the patient he was allergic to and subsequently died as a result was held to constitute a novus actus interveniens. However, it should be remember that this was ‘ very particular case depending on its exact facts’. The facts in this scenario may be sufficiently similar to Jordan to warrant the doctor’s actions breaking the chain of causation. However, it would be very unlikely in the particular circumstances that the doctor would be convicted of an offence as by and large doctors are immune from prosecution the negligent treatment needs to be
‘so independent of his (the defendant’s) acts, and itself so potent in causing death, that they regard the contribution made by his acts as insignificant’
Also, doctors are often under a lot of stress and need to act fast and do what they consider to be best in the particular circumatances. So unless their acts were not just negligent but grossly negligent then it is unlikely that a prosecution would be brought against a doctor (or the doctor in this particular scenario).
So, to conclude, the liability of Andy and Ethel will be summarised. Andy would probably not be guilty of any offences against Bill, he may even be cleared of the criminal damage of Bill’s window. However, he would probably of a s.47 offence against Cilla based on the doctrine of transferred malice. Ethel on the other hand would probably be guilty of Assault, under s.39 of the Criminal Justice Act. However, as regards causation neither of them would be guilty as neither the acts of Andy and Ethel it could be argued were an ‘operating and substantial cause’ of Bill’s brain damage and it was the independent act of the doctor which ultimately broke the chain of causation.
Oxford Dictionary of Law p257
James J - Fagan v MPC (1968) 3 All ER 442
Oxford Dictionary of Law p68
per Lord Bedlam in Jordan