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The next concept to consider, and often the hardest for students to grasp, is that the defendant must be the ‘blameworthy’ cause of the end result. Naturally you may think that if the defendant caused the act, then clearly he is blameworthy. However, it is not as simple as that. When we speak of blameworthiness, we are concerned with whether the blameworthy conduct caused the end result, as opposed to whether the act or conduct was itself blameworthy.

A defendant’s actions may be blameworthy in that they are unlawful or illegal; however, unless that blameworthy conduct actually caused the end result, the defendant is not the blameable cause for the purposes of legal causation.

Let us look at the classic example of blameworthiness in order to ascertain its meaning.

case example

Charge: Gross negligence manslaughter

Case progression: Assize Court – Not guilty

Point of law: Whether a defendant’s blameworthy conduct was the cause of the end result

In R v Dalloway (1847) 2 Cox CC 273, the defendant, whilst driving a cart and horse on a highway, allowed the reins to lie on the back of the horse, as opposed to keeping control of them. Such conduct was negligent on the part of the defendant. The victim, a small child, ran out into the road only a few yards ahead of the cart and was struck. The victim died. The defendant was charged with gross negligence manslaughter.

The court held that although the defendant’s conduct was negligent, he could not have stopped the cart in time to save the victim had he had control of the reins.

Dalloway is the classic authority that the defendant is not liable for an offence unless his blameworthy conduct was the cause of the end result. Essentially, there must be an element of ‘fault’. Emphasis is therefore best placed on whether the end result occurred because of the blameworthy conduct – in Dalloway, because of the defendant’s negligent driving. Where that is not the case, the defendant cannot be said to be the blameworthy cause.

In recent years, however, the appellate courts have questioned whether this requirement for fault is necessary at all. Although the following cases all revolve around driving offences, they are entirely relevant to the broader concept of legal causation.

case example

Charge: Aggravated vehicle taking (TA 1968, s 12A)

Case progression: Crown Court – Guilty

Court of Appeal – Conviction upheld

Point of law: Whether fault was necessary to convict a defendant

In R v Marsh [1997] 1 Cr App R 67, the defendant stole a car and was involved in an accident. The victim survived but was severely injured. The defendant was charged with and convicted of aggravated vehicle taking in the Crown Court.

On appeal, the Court of Appeal faced the question of whether fault was required in an offence worded as ‘owing to the driving of the vehicle, an accident occurred by which injury was caused to any person’. The Court ruled that fault was not an element of the offence. Laws LJ held that the only relevant requirement of the offence was that the driving of the vehicle alone should have been the cause of the accident.

The Court of Appeal was not concerned with the manner of the driving. It ruled that once the basic offence of taking the vehicle had been committed, no further element of fault was required. All that was required was for the defendant to be driving the car on the road at that time. As can be appreciated, this sounds entirely contrary to R v Dalloway.

A similar issue arose in the case of R v Williams [2011] 3 All ER 969. Another driving offence, this case concerned the offence of driving when unlicensed, disqualified or uninsured, contrary to s 3ZB of the RTA 1988.

case example

Charge: Driving when unlicensed, disqualified or uninsured (RTA 1988, s 3ZB)

Case progression: Crown Court – Guilty

Court of Appeal – Conviction upheld

Point of law: Whether fault was necessary to convict a defendant

In R v Williams [2011] 3 All ER 969, the defendant was driving through Swansea, without a licence or insurance, when a pedestrian crossed the central reservation and stepped in front of his car. The accident was entirely the fault of the pedestrian and could not have been avoided by the defendant. The defendant was charged with and convicted of driving whilst unlicensed.

On appeal, the Court of Appeal was concerned with the wording of the statute which provided that a person commits an offence if, being unlicensed, uninsured or disqualified, he ‘causes the death of another person by driving a motor vehicle on a road’. The Court of Appeal followed the decision of Marsh in that fault is not an element of the offence. Merely driving on the road without a licence or insurance was sufficient.

This judgment was criticised by many, including Sullivan and Simester (‘Causation Without Limits: Causing Death While Driving Without a Licence, While Disqualified, or Without Insurance’ [2012] Crim LR 753), who commented that Dalloway is the correct authority and it would be unethical to find a defendant liable for an offence where his conduct was not the blameworthy cause of the end result. Further, Hirst (‘Causing Death by Driving and Other Offences: A Question of Balance’ [2008] Crim LR 339), who wrote before the decision in Williams, contended:

Lack of sympathy for disqualified or uninsured drivers should not however blind us to the fact that this new offence corrupts the usual principles governing causation.

See further, Crosby, ‘Court of Appeal: Causing death by faultless driving’ (2011) 75(2) J Crim L 111 and Ormerod at [2011] Crim LR 468.

A matter of weeks later, the Court of Appeal approached the exact same issue in R v Hughes [2011] EWCA Crim 1508 (also known as R v H). As you will see, the case eventually proceeded to the Supreme Court ([2013] UKSC 56).

case example

Charge: Driving when unlicensed, disqualified or uninsured (RTA 1988, s 3ZB)

Case progression: Crown Court – Guilty

Court of Appeal – Prosecution appeal upheld, defendant liable for offence

Supreme Court – Conviction quashed

Point of law: Whether fault was necessary to convict a defendant

In R v Hughes [2011] EWCA Crim 1508, the defendant was driving his family’s camper van without a licence or insurance, when a vehicle approached from the other direction, veering over both sides of the road. The other driver was overtired and was high on heroin. There was a collision in which other driver was killed. It was accepted that the defendant’s driving was faultless and that there was nothing that he could have done to avoid the accident.

The trial judge, quite sensibly, ruled that he had not committed the offence because he had not ‘caused’ the death, following Dalloway.

The Court of Appeal overturned the ruling, once again applying Marsh that there was no requirement to prove fault in the manner of driving, simply that the driving of the car itself caused the end result.

Again, the Court of Appeal found liability to exist despite a lack of fault on part of the defendant. The case was, however, appealed to the Supreme Court (R v Hughes [2013] UKSC 56) which reversed the decision of the Court of Appeal and ruled that fault was an essential element of the offence.

The important passage from the Supreme Court’s judgment was provided by Lord Hughes, who ruled:

By the test of common sense, whilst the driving by Mr Hughes created the opportunity for his car to be run into by Mr Dickinson, what brought about the latter’s death was his own dangerous driving under the influence of drugs. It was a matter of the merest chance that what he hit when he veered onto the wrong side of the road for the last of several times was the oncoming vehicle which Mr Hughes was driving. He might just as easily have gone off the road and hit a tree, in which case nobody would suggest that his death was caused by the planting of the tree, although that too would have been a sine qua non.

Later in his judgment, Lord Hughes concluded:

There must be at least some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death.

Reviewing the Supreme Court’s judgment in Hughes, Ormerod and Laird (Smith, Hogan, & Ormerod’s Criminal Law, 15th edn (OUP, 2018)) comment that the decision is a ‘welcome affirmation of the fundamental role played by legal causation’.

One would like to think that this was the end of the matter and that Dalloway had been confirmed as the correct position regarding the necessity for fault. Unfortunately it was not. In 2016, the Supreme Court was faced, yet again, with the question of whether fault was required in a driving offence. This time, the driving offence was of the same kind concerned in the Marsh case. This was the Supreme Court’s opportunity to settle the debate once and for all.

case example

Charge: Aggravated vehicle taking (TA 1968, s 12A)

Case progression: Crown Court – Not guilty

Court of Appeal – Prosecution appeal upheld; defendant liable for offence

Supreme Court– Conviction quashed

Point of law: Whether fault was necessary to convict a defendant

In R v Taylor [2016] UKSC 5, the defendant took a Ford Transit Tipper truck from a friend, in order to collect another friend from Exeter. The prosecution alleged that the truck was taken without the owner’s consent. Having picked up the friend, the defendant was driving back home when he collided on a bend with a scooter driven by the victim. The scooter slid under the wheels of the truck, and the victim was killed. The defendant was found to be over the drink drive limit and uninsured; however, his driving was deemed faultless and open to no criticism. The defendant was acquitted of the offence which was then reversed by the Court of Appeal following Williams.

The Court of Appeal did, however, certify a question of public importance to the Supreme Court: ‘Is an offence contrary to s 12A(1) and (2)(b) of the Theft Act 1968 committed when, following the basic offence and before recovery of the vehicle, the defendant drove the vehicle, and without fault in the manner of his driving the vehicle was involved in an accident which caused injury to a person.’

Lord Sumption, providing the unanimous judgment of a seven-member Supreme Court, allowed the appeal, answering ‘no’ to the certified question and ruling:

… the accident must have occurred ‘owing to the driving of the vehicle’, that there will have been something wrong with the driving … the driving cannot be said to have caused the accident if it merely explained how the vehicle came to be in the place where the accident occurred.

It follows from the admitted absence of fault in the driving of the vehicle that the driving did not cause the death of Mr Davidson-Hackett.

Lord Sumption would conclude:

I would express the test applicable in this case in the same terms as Lord Hughes and Lord Toulson expressed it in Hughes at para 36. There must be ‘at least some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death’.

It would appear that the law has now finally been clarified with Taylor effectively re-endorsing the decision of Dalloway. As a result, therefore, the defendant’s blameworthy conduct must be the cause of the end result. There must be an element of fault in causation. Simply having conduct that is blameworthy is not sufficient; there must be fault.

Figure 2.6 should assist in understanding the position as a result of Taylor.

Figure 2.6Understanding blameable conduct