R v Wallace [2018] EWCA Crim 690

Key points

  • The requirement of a ‘voluntary’ act by the victim or a third party for the novus actus interveniens rule to apply and break the chain of legal causation can be interpreted to require an intervening act committed with ‘free and unfettered volition’
  • Shifted the test for legal causation from ‘operating and substantial’ cause to ‘operating and significant’

Facts

  • D, ex-partner of V, poured acid onto V’s face
  • V was permanently disfigured, suffering severe physical and psychological pain
  • Months later, V travelled to Belgium, where, upon further severe medical complications, he requested for and was legally euthanized by a doctor’s injection
  • On the case of murder (among other offences also being prosecuted) D’s counsel argued that legal causation was not present, and there was therefore no case to answer, as the act of the doctor’s injection constituted a novus actus interveniens
  • May J in the Crown Court agreed and withdrew the case of murder from the jury
  • The prosecution appealed

Held (Court of Appeal)

  • Appeal allowed; causation could be found by a jury, and a new trial was therefore ordered

Sharp LJ

Requirement for Novus Actus Interveniens

  • “Mr van Dongen’s death, his request to the doctors, and the act of euthanasia itself carried out in accordance with his wishes, were not discrete acts or events independent of the defendant’s conduct, nor were they voluntary, if by this is meant they were the product of the sort of free and unfettered volition presupposed by the novus actus rule”: [61]

Approach to Causation

  • “The correct approach in the criminal law is that enunciated in Smith and the other authorities to which we have referred: were the injuries inflicted by the defendant an operating and significant cause of death? That question, in our judgment, is necessarily answered, not by philosophical analysis, but by common sense according to all the circumstances of the particular case.” [69]

The present case

  • “In the event we consider that the jury could conclude on the facts as they were here that the acts of Mr van Dongen and the doctors were not sensibly divisible; tha the doctors’ (lawful) conduct in carrying out with their hands what he could not carry out with his own were not sensibly divisible; that the events instigated by the defendant and, notwithstanding the intervening act of Mr van Dongen, and/or the doctors, the defendant’s conduct could fairly be said to have made a significant contribution to Mr van Dongen’s death… [I]n the light of the decision in Dear the seeking of death (suicide in that case) as a response to horrific injuries does not preclude the jury finding that the defendant’s conduct made a significant contribution to Mr van Dongen’s death.” [85]

Commentary

From J. Herring, ‘Texts, Cases, and Materials (9th edn)’

The ‘Unfettered’ Requirement

  • “Neither the victim nor the doctors were unfettered. They were under considerable pressure to act as they did as ‘a direct response’ to the defendant’s act. It is not quite clear how the courts will interpret this ‘unfettered’ requirement in future cases. One could say that the drug-using victim in Kennedy was pressurized by their love of drugs and so was not ‘unfettered’”: p. 90

Shift from ‘Substantial’ to ‘Significant’

  • “The shift from ‘substantial’ to ‘significant’ makes it clear that even if a jury were persuaded the doctor was the main cause of death, the stab wound could still be a significant (even if secondary) cause of death”: p. 84
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