In practice the moral judgements regarding the responsibility of the accused for his actions affect the judiciary’s application of the legal rules.
Critically analyse the extent to which the criminal law on causation aligns with this statement.
This essay question provokes consideration of the moral judgments of the accused when their actions place them in a position of being accused of a criminal offence. The question also considers the moral judgements of the judiciary who are deciding upon whether that same accused individual is guilty of committing the criminal offence.
In exploring the moral judgement of the accused, we will be looking at the traditional view which is that to be at fault or ‘culpable’ the accused is required to have recognised or intended to act wrongly. This is the meaning behind ‘guilty mind’ which is the intent to commit the crime commonly known as the ‘mens rea’ of an offence.1
When discussing the moral judgements of the judiciary in this context, there are various schools of thought about whether law and morality are one and the same or are distinct and separate and should be treated as such. One such school of thought which is focused upon here is that of Utilitarianism which separates law and morality and when there are discussions of ‘what the law should be’, this is not the same as saying that there must be a moral judgement on what the law should be. Their stance is to separate law and morals and therefore distinguish the law from what it is and what it should be.2
The context in which the above issues are explored is that of criminal causation.
What is the criminal law on causation?
The criminal law does not seek to punish people for their evil thoughts but for the conduct of the accused.3 Where charged with a result crime, the prosecution must prove the accused’s acts or omissions caused the outcome.4There are two strands to causation, factual and legal. Factual causation or the ‘but for test’5 is where it must be proved that the outcome would not have occurred but for the conduct of the accused.6
Legal causation, on the other hand, is closely related to ideas of responsibility and culpability.7 In a criminal case, once the ‘but for test’ is decided upon, the legal test is not a test of causation but of moral reaction. The question is whether it is fair to attribute blame, fault, responsibility, or culpability to the accused which indicates the value-judgment made.8 Utilitarians such as Bentham disagree that these concepts must be considered as utilitarians are clear that there should be no liability without fault.9 In other words, if the accused did not cause the outcome or the consequence, then they should not be held to be criminally liable. This question often arises in discussions and deliberations surrounding homicide. This is because with such result crimes actus reus is that the accused’s conduct must have caused a specific outcome.; In murder cases the accused’s act must have caused the death of another person before they can be considered criminally liable.10
On questions of legal causation the jury will be directed to consider whether the accused’s act was more than minimal in contributing towards the victim’s death. One of the leading cases in this area is R vAdams195711 in which a doctor faced a murder charge for providing his patient with pain-relieving drugs which lead to an acceleration of the patient’s death. The jury were directed by Devlin J to consider that no act constitutes murder unless it causes death.12 By ’cause’ Devlin J explained that it was not a scientific, technical or philosophical definition but what the jury would consider to be ‘common sense’.13 According to Allen, presumably a jury’s moral reaction would be that the doctor’s sole aim was to relieve pain and it was incidental that the patient’s death was accelerated. However, had it had been a sole beneficiary who injected the patient with the aim of accelerating the patient’s death so that they could benefit from their inheritance quicker, then the jury’s moral reaction is likely to be that the beneficiary caused the death.
Do moral judgements affect questions about causation, and if so to what extent?
It appears in R v Adams14 the issue of causality became mixed up with the issue of motive because there was a strong moral imperative to clear the doctor of liability. This led to the causality of the doctor’s actions being doubted rather than his mental state or the mens rea of the offence being doubted.15 It is as though a special defence was created to distinguish the doctor from a murderer in cases of life-shortening palliative care.16 This is a class example of a case in which moral judgements affected questions about causation to the maximum extent. This is proven as the outcome of the case was that the accused was acquitted. However some academics would argue that the moral judgements affect questions about causation to a limited extent. This is because of the argument that Dr Adams was no more different than the doctor and serial killer Harold Shipman who was also acting outside the law, despite the judgement in the case.17
It is clear to utilitarian’s that in this instance that the doctor should have been found guilty. The patient was bound to die and the doctor was simply using palliative care to ease the pain however it was the palliative care which accelerated the patient’s death.18 As such, there was no intervening act which broke the chain of causation between the act of the doctor in providing palliative care and the victim’s death.19 Therefore a utilitarian judgment would be that the doctor was guilty as he caused the patient’s death. The ‘morality’ of the matter should not be considered in deciding whether an accused person is guilty. According to utilitarians the moral judgment of the accused and the moral judgement of the judiciary is not how the issue of criminal causation should be decided upon.20
The moral judgment exercised by the judiciary stems from their judicial oath and what is expected of them when they are appointed.21 At Equality in Justice Day, the Lord Judge the Lord Chief Justice spoke on the qualities of a good judge: “Many qualities are required of a judge… He or she must of course know the law, and know how to apply it, but the judge must also be wise to the ways of the world. The judge must have the ability to make a decision … Judges must have moral courage – it is a very important judicial attribute – to make decisions that will be unpopular with the politicians or the media and the public, and indeed perhaps most importantly of all, to defend the right to equal treatment before the law of those who are unpopular at any given time.”22 It therefore appears that the judiciary in their decision making process should have regard to morality and ‘do the right thing’. This is why when taking the judicial oath, the judiciary swear ‘to do right to all manner of people’.23 It can therefore be seen that it is deemed very important for the judiciary to have moral courage when making decisions and so moral judgements regarding the responsibility of the accused should affect the judiciary’s application of the legal rules.
The judicial oath appears to permit moral decision making in the judicial process, however it may be that the judicial oath places too much emphasis on ‘taking decisions with moral courage’.24. Clearly moral decision making should be limited where it leads to an exaggeration of the law and the spirit of the law which was the outcome in R v Adams 1957.25
Alan Norrie argues that such moral decision making should be limited so that judgements are given within the ambit of the law and the law is not changed for ‘morally appropriate cases’.26 For some offences when discussing the issue of mens rea, the jury are entitled to find that there was ‘indirect intention’ but other offences require direct intention for an offence to be proved. However this element of flexibility is what the judiciary rely on to acquit the accused in ‘morally appropriate’ cases. This is because traditionally, questions about the accused’s mens rea at the time of the offence excludes moral judgements.27
Therefore according to Norrie, the moral judgments of the judiciary affects their application of the law to the facts of a case28. It is noted, however, that Norrie’s opinion relates to the mens rea of the accused rather than the actus reus. Therefore it can be said that ‘in practice the moral judgements regarding the mental state of the accused affect the judiciary’s application of the legal rules’.
There are also schools of thought such as those adopted by Moore, which supports the proposition that legal responsibility should closely mirror moral responsibility.29 Moore’s reasoning is that legal liability only falls on those who are morally liable.30 This is perhaps the flip side of the utilitarian argument which seeks to separate law from morality as discussed earlier.
However, whilst Moore’s opinion may be reflected in cases such as R v Adams31, the breadth of case law on euthanasia clearly shows that morally liability is far from being the ‘decisive’ factor. An example is R (Purdy)32 in which the Director of Public Prosecutions was required to set out detailed policy by which he exercised his discretion to prosecute euthanasia cases. The logic behind this was so that a person contemplating assisting someone who is terminally ill could foresee whether they would be prosecuted. It is therefore clear that such cases are decided not merely on moral grounds and what is ‘morally appropriate’ as Moore states. If that were the case, the direction for the DPP to provide policy guidance in this area would not have been necessary. Issues of criminal liability are not just based on moral judgments of the accused because they were acting for the ‘right reasons’. The reason is because there is no universal declaration on what is right or wrong even in euthanasia cases.
As outlined at the beginning of this essay, there is a difference between the moral judgment of the accused and that of the judiciary when considering causation and criminal liability. The question is important because problems arise where the judiciary creatively interpret and apply the law to convict those who they feel that morally are to blame but acquit those who they morally sympathise with.33The reason for the creative law-making is because in Alan Norrie’s view, the judiciary want the freedom to acquit the accused in morally appropriate cases.34 Utilitarianisms would also agree that ‘morally appropriate’ judgements are made in certain circumstances. They are however also strongly of the view that judgments should not be based on this but on whether the accused cause the offence.35
So the moral judgment of the judiciary, can and clearly has affected the application of the legal rules in relation to criminal causation. The case of R v Adams36 is a classic example where the law is clear that the doctor should have been found guilty as his actions caused the patient’s death. Just because the doctor’s primary aim was to provide palliative care, the moral judgement of the judiciary provided a ‘special defence’ to the doctor. This is a judgement, however, which is very much in the minority and therefore it can be said that the extent to moral judgments affect the criminal law on causation is minimal.
In relation to the moral judgement of the accused, this refers to the mens rea of the accused, whether they have a ‘guilty mind’ and therefore whether their state of mind makes them guilty (providing the actus reus is also proved). However causation only deals with the actus reus of the offence, and is specific to whether the accused’s act caused the outcome required for the offence to be proved. The main example in the essay was murder and that the accused’s act had to cause the victim’s death for them to be guilty. As such, the criminal law on causation does not align with the statement as causation and mens rea are two separate elements.
1 Catherine Elliott and Frances Quinn, Criminal Law (9th edn, Pearson 2012) 14.
2 Herbert L.A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev. 593, 595.
3 Michael Allen, Textbook on Criminal Law (7th edn, OUP 2007) 17.
4 Allen (n 3) 17.
5 R v White19102 KB124.
6 Allen (n 3) 17.
7 Allen (n 3) 34.
8 Glanville Williams, Textbook of Criminal Law (2nd edn, Steven & Sons Ltd 1981) 381.
9 Jeremy Bentham, ‘Principles and Morals and Legislation’ in I Works I 84 (Bowring edn, 1859) Ch XIII 593
10 Ibid (n 1) 15.
11 R v Adams1957 Crim LR 365.
12 Ibid (n 11).
13 Ibid (n 8) 381.
14 Ibid (n 11).
15 Andrew Simester, Bob Sullivan, John Spencer and Graham Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine(5th edn, Hart Publishing 2013) 367-368.
16 David Ormerod, Smith & Hogan: Criminal Law (11th edn, OUP 2005) 435.
17 Stephen Smith, End of Life Decisions in Medical Care (Cambridge University Press 2012) 208.
18 Ibid (n 11).
19 Ibid (n 1) 15.
20 Jeremy Bentham, ‘Principles and Morals and Legislation’ in I Works I 84 (Bowring edn, 1859) Ch XIII 593
21 Judiciary 2015, ‘Oaths’ (Court and Tribunal Judiciary, 2015) Read the article here accessed 2 July 2015
22 Judiciary 2015, ‘Becoming a judge’ (Courts and Tribunal Judiciary, 2015) Read the article hereaccessed 2 July 2015.
23 Ibid (n 21).
24 Ibid (n 22).
25 Ibid (n 11); Ibid (n 17) 208.
26 Alan Norrie, ‘After Woollin’ (1999) Crim LR 532, 534.
27 Ibid (n 26), 533.
28 Ibid (n 26) 533.
29 Fabio Bacchini, Stefano Caputo, Massimo Dell’Utri, New Advances in Causation, Agency and Moral Responsibility (Cambridge Scholars Publishing 2015) 132.
30 Ibid (n 31) 132.
31 Ibid (n 11).
32 R (Purdy) v DPP (2009) UKHL 45.
33 Elliott (n 1) 32.
34 Alan Norrie, ‘After Woollin’ (1999) Crim LR 532
35 Herbert L.A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev. 593, 595.
36 Adams (n 11).