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The defendant must ‘take his victim as he finds him’. Also known as the ‘egg-shell skull rule’, these words have long been established as a key principle in the criminal law of England and Wales.

Most textbooks include their discussion of the thin skull rule within a section on ‘acts of the victim’ which break the chain of causation. Indeed, this makes a lot of sense as the question becomes whether the susceptibility of the victim is an act on their part which can break the chain of causation. For instance, Colvin (Principles of Criminal Law, 2nd edn (Carswell, 1991)) argues that there is no need for a ‘special’ rule because in all cases where the thin skull rule is used, applying the ‘operating and substantial cause’ test would produce the same result. It is felt, however, that given the novel area of law concerned and the fact that in many cases the ‘thin skull’ is not as a result of an act of the victim, but rather is an integral part of the victim, this area is best placed within its own section.

In general, the principle is concerned with the effect a defendant’s act has on the victim in question.

example

Jill gives Jack a paper cut as a joke. Ordinarily, a paper cut would be of no threat to an individual. Although it may cause some discomfort, there is no likelihood of real harm or injury to the individual.

However, suppose Jill does the same thing to Andy who suffers from haemophilia (a condition where the blood does not clot). As a result of his condition, Andy is likely to suffer greater harm than an individual without such a condition. This condition, or ‘susceptibility’ as it is referred to in practice, is irrelevant to the liability of the defendant, as he must take his victim as he finds him. This means that the defendant will remain the factual and legal cause of the harm despite the vulnerability of the victim and regardless of whether the defendant was aware of the condition or not.

Let us take another example.

example

Jack pushes Andy off a 3ft high wall. In the majority of cases, this is unlikely to cause an individual significant harm. Andy, however, suffers from a thin skull and is severely injured upon falling. Jack remains liable for the injuries to Andy despite the fact that such an action would not have had such a great effect on another person, such as Jill.

There may be many circumstances that result in a victim’s heightened vulnerability, for example:

•old age;

•young age;

•brittle bones;

•haemophilia;

•thin skull, etc.

What the examples above provide us with is a decent picture of the operation of the law (see R v Hayward (1908) 21 Cox CC 692 – concerning a thyroid condition). However, such examples have been intentionally restricted to ‘physical’ vulnerabilities to allow us to question the extent to which the principle operates. As a result of the decision in R v Blaue [1975] 1 WLR 1411, the principle is clearly capable of an extremely wide application.

case example

Charge: Murder

Case progression: Crown Court – Not guilty of murder; guilty of manslaughter

Court of Appeal – Conviction upheld

Point of law: Thin skull rule applies to religious or holistic beliefs

In R v Blaue [1975] 1 WLR 1411, the victim was a Jehovah’s Witness and refused a blood transfusion on religious grounds after being stabbed by the defendant. The victim died and Blaue was charged with and acquitted of murder. However, the defendant was found guilty of manslaughter.

The Court of Appeal upheld the conviction, ruling that the victim’s susceptibilities need not be physical, but may be more holistic in character also. In particular, Lawton LJ commented:

It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that the victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable.

In the older case of R v Holland (1841) 2 Mood & R 351, the defendant cut the victim’s finger and the wound became infected. The victim refused to accept medical advice, and as a result developed lockjaw and died. The Court concluded that the original wound remained the substantial and operating cause, and the victim’s conduct did not break the chain of causation. Blaue relied on and affirmed the decision of Holland.

As a result of Blaue, which followed R v Holland, it is questionable to what extent the principle now extends. The principle could now effectively cover susceptibilities of all kinds and natures. For example, vulnerabilities could now be:

•physical;

•emotional;

•psychological; or

•holistic/religious.

The case led to strong criticisms from the likes of Williams (‘Criminal Law – Causation’ [1976] CLJ 15), who argued that it was ‘absurd’ to convict an accused for murder in circumstances where the victim had unreasonably refused treatment, thus resulting in death. Williams furthers this by explaining that a defendant in most cases can be convicted of a lesser offence, such as wounding in Blaue, and the public interest in securing a conviction and imprisoning a wrongdoer would be served. This is furthered by Klimchuk (‘Causation, thin skulls and equality’ (1998) 11 Canadian Journal of Law and Jurisprudence 115), who suggests that the test should not apply ‘where the outcome would offend common sense’.

So where, then, does one draw the line? Should it be the case that the defendant must take his victim as he finds him with regard to any of the above susceptibilities? Jefferson (Criminal Law, 12th edn (Pearson, 2015)) helpfully suggests that

the ‘take your victim’ test should not apply where the outcome would offend common sense; therefore, if the victim has acted in a ‘daft’ manner the accused should not be guilty of the offence charged, though he may still be guilty of a lesser offence or of the attempt.

Such appears to be a logical solution and accords with the view of Child and Ormerod (Smith, Hogan, & Ormerod’s Essentials of Criminal Law, 3rd edn (OUP, 2019)), who argue that it would be taking the thin skull rule ‘too far’ where the victim acts in a way which causes further harm, and ‘it is better to restrict it to cases where the victim does not do anything to make their condition worse’.