TMA 04

In order to explain how legal causation is established in criminal law it is first necessary to understand that legal causation is an element of the actus reus (the guilty act prohibited by law) that needs to be satisfied before a person can be convicted of an offence. This essay will consider how factual and legal causation can be established in regards to acts and omissions before discussing the views of Brett and Waller concerning the fairness of legal causation in situations such as refusing medical treatment and careless driving.
For a person to be convicted for an offence the prosecution will establish firstly whether the person has committed the actus reus, secondly, the persons state of mind at the time of offence such as intent or recklessness (mens rea) and lastly whether the defendant has a valid defence such as self defence.
To establish the actus reus of an offence the courts will consider the guilty act, the circumstances at the time of the act and the consequences of that act. These are commonly defined within statute relating to the particular offence, for example, the actus reus of criminal damage is defined in s.1(1) of Criminal Damage Act 1971 as “a person who, without lawful excuse destroys or damages property belonging to another”. Criminal damage requires a consequence from an action making it a result crime; therefore the prosecution would have to show that the defendants conduct had caused a consequence that is prohibited by criminal law, this is known as causation.
Causation consists of two elements, factual and legal causation, both of which need to be established before the actus reus can be satisfied. Firstly the courts will consider factual causation which uses the ‘but for’ test to determine ‘but for’ the defendants conduct would the consequence have occurred in the way it did? However, the ‘but for’ test is not enough to