ABSTRACT
This chapter argues that fault (culpability) and causation are separate matters. Where commission of an offence requires proof that D caused a particular consequence (death; serious harm etc.) proof of a causal link between D’s conduct and the proscribed result is the first step and should be resolved in non-obvious cases (such as indirectly caused consequences) by objective analysis. Then matters of culpability can be addressed according to what is required to prove the offence.
Too often in English criminal law no proof of fault will be necessary. Because of the injustice that liability based on the blameless causing of an outcome may bring about, courts on occasion infiltrate some element of fault into the causal analysis, particularly where the definition of the offence always no scope for reading in some measure of culpability. It will be argued that English courts possess ways of resisting liability for serious offences which include no element of fault that are preferable to making a finding of causation conditional on some proof of culpability.
Yet fault and causation cannot be kept completely apart. There will be cases where the correct causal analysis may be disputed. Such disputes may arise in cases where there is a strong moral case for ensuring that D bears full responsibility for harms inflicted on others, something that will not happen if causal analysis A is preferred to causal analysis B. A court may legitimately prefer analysis B and be properly influenced in its choice of B by a commitment to do justice to the victims of D. But the preference must be realistic in its findings of causation. For instance, a court may be understandably reluctant to find that any intervention by V or a third party that comes after the culpable act of D is an event that supervenes over D’s earlier conduct. But some interventions do exactly that: causal analysis should not be stressed beyond breaking point to avoid that inconvenient truth.
