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Table 2.11Free, deliberate and informed acts

Principle	Explanation	Example
Free	When we speak of ‘free’ conduct, we are concerned with circumstances where the third party is not acting in a justified or excused manner or where their actions are not a natural or foreseeable consequence of the defendant’s actions.	R v Pagett (1983) 76 Cr App R 279
Deliberate	When we speak of ‘deliberate’ conduct, we are referring to ‘voluntariness’ and are concerned with whether the third party’s actions were willed.	Wise v Dunning [1902] 1 KB 167
Informed	When we speak of ‘informed’ conduct, we often refer to so-called ‘innocent agents’. Innocent agents may be doli incapax, insane or have no mens rea.	R v Michael (1840) 9C&P356

With these principles in mind, let us now look at the three cases listed in turn. First, the act must be ‘free’.

case example

Charge: Unlawful act manslaughter

Case progression: Crown Court – Guilty

Court of Appeal – Conviction upheld

Point of law: Whether a third party can break the chain where their actions are foreseeable as a result of the defendant’s conduct

In R v Pagett (1983) 76 Cr App R 279, the defendant abducted the victim, his pregnant girlfriend, and used her as a ‘human shield’ when confronted by the police. The defendant fired at the police who then returned fire, killing the victim in the process. The defendant was charged with and convicted of constructive manslaughter, which was upheld in the Court of Appeal.

The Court of Appeal ruled that the officers had acted ‘involuntarily’ and in a manner that was not ‘free’. The Court reasoned that the officers had acted reasonably for the purpose of ‘self-preservation’ and in performance of their legal duty to apprehend the defendant. The defendant remained the legal cause of death through his unlawful act.

Pagett is a demonstration that the courts take a broad interpretation of what conduct is ‘free, deliberate and informed’. To this extent, the court can find that the chain of causation is broken in circumstances where they feel it is ‘just’ for it to be broken. Cases involving police officers performing their duties are clearly not in this bracket, which Ormerod and Laird (Smith, Hogan, & Ormerod’s Criminal Law, 15th edn (OUP, 2018)) argue has ‘compromised’ the principles of legal causation. Such application of legal principles has led to many academics criticising the courts for their inconsistent and arbitrary judgments based very much on a ‘desired conclusion’ basis. Indeed, Williams (Textbook of Criminal Law, 2nd edn (Sweet & Maxwell, 1983)) describes the judiciary’s use of legal causation as a ‘moral reaction’ whereby the courts seek certain ‘desired’ results.

In Pagett, it is clear that the officers did not intentionally or deliberately shoot the victim. Rather, they were responding to shots fired by the defendant. It is questionable whether the officers acted reasonably in firing back at the defendant; however, this point is moot given that it would make no difference to the outcome of the case. In summary, the police officers acted in a manner that was ‘deliberate and informed’ but was not ‘free’, in that their actions were a natural and foreseeable consequence of the defendant’s conduct. In this regard, the police officer’s conduct did not break the chain of causation.

Secondly, the act must be ‘deliberate’/‘voluntary’.

case example

Charge: Breach of the peace

Case progression: Magistrates’ court – Bind over

Divisional Court – Bind over upheld

Point of law: Whether the actions of a third party can break the chain where they ‘appear’ voluntary

In Wise v Dunning [1902] 1 KB 167, the defendant, a Protestant preacher, gave anti-Catholic speeches in Liverpool which he knew would cause the audience to react violently, which they did. The magistrates’ court bound him over (ie had him agree) to keep the peace which he then breached.

The defendant appealed by way of ‘case stated’ to the Divisional Court, arguing that he should not be liable for any breach of the peace caused by a third party. The Divisional Court ruled that the violence arose as a ‘natural consequence’ of the defendant’s actions.

Dunning is a complex case involving both substantive and procedural points of law. Dunning has been used as an example here to demonstrate that the actions of third parties (ie the members of the crowd) will not break the chain of causation where their actions are not ‘voluntary’. You may think this idea sounds absurd. Herring (Criminal Law: Text, Cases, and Materials, 9th edn (OUP, 2020)) agrees and argues that this case stretches the meaning of ‘voluntary’ to its extreme. The easiest way to appreciate this decision is to break it down into a common sense understanding:

•The violence erupted as a result of the defendant’s actions in making the speech.

•The defendant knew the crowd would react violently.

•The reaction to turn to violence was ‘instinctive’ and without thought on the part of the crowd.

Have you ever acted without thought? Become so angry or upset that you say or do something out of character? That was the position here, and although it may be considered a stretch in meaning, it is a useful demonstration of the meaning of voluntary.

Finally, the act must be ‘informed’.

case example

Charge: Murder

Case progression: Court for Crown Cases Reserved – Guilty

Point of law: Whether a third party could break the chain of causation when uninformed as to their actions

In R v Michael (1840) 9 C & P 356, the defendant desired her baby dead and handed a bottle of laudanum (poison) to a nurse, telling her that it was medicine for the baby. The nurse regarded the medicine as unnecessary and placed it on the mantelpiece unaware that it was poison. The nurse’s child, aged five, picked up the poison and administered it to the baby. The baby died as a result.

The Court held that the mother remained the legal cause of death. This was despite the actions of the five-year-old who was described by the Court as ‘an unconscious agent’, thus not resulting in a break in the chain of causation.

The case of Michael is an authority on two points. The first being the so-called ‘intended results’ cases where a defendant is liable where they intended a result and that result occurs. This shall be discussed in greater detail in Chapter 3, but for now it is worth stating that despite the manner of death of the child, the end result of death was as the defendant desired. Hart and Honoré in their text, Causation in the Law, 2nd edn (OUP, 1985) do not take this view and argue that the ‘intended result’ did not occur. The true intended result was for the nurse to administer the deadly substance, not the child. Specifically, the pair state that the child was ‘not in any sense an agent, conscious or unconscious, of the mother, who intended [X] alone to give the poison to the child’.

The second point is that which we are more concerned with, namely whether the act of the child was a novus actus interveniens. The Court was clear that the actions of the child could not amount to a new and intervening act. Hart and Honoré go on to say that ‘the decision may be justified on the ground that … the act of the child of five did not negative causal connexion between the prisoner’s act and the death’. Essentially, given that the child was an ‘innocent agent’ (as a result of her age) and being uninformed of the poisonous substance, her actions could not amount to a ‘free, deliberate and informed’ intervention. Should the child have drunk the substance, as opposed to administering it to the victim, the doctrine of transferred malice (see Chapter 3) would operate to maintain the liability of the defendant.

That is the first element for you to consider when faced with an intervention from a third party. Ensure that you are clear in any answer given whether the third party is truly acting in a ‘free, deliberate and informed’ manner. If they are, you may then consider the second element; namely, whether the defendant remains the ‘operating and substantial’ cause.