The Learning & Resource Section

Causation in Criminal Liability

Causation in Criminal Liability:

This refers to whether or not the defendant's conduct caused the harm or damage. It must be established in all result crimes. It can be divided into factual causation and legal causation.

Factual Causation

This is the starting point on finding causation. Factual causation consists of applying the 'but for' test. Essentially, it asks, 'but for the actions of the defendant, would the result have occurred?' If the answer to this is yes, that the result would have occurred regardless, the defendant is not held liable. If the answer is no, the defendant is held liable. ( R v White)

Legal Causation:

In most cases, factual causation is enough to establish causation. However, sometimes it is necessary to consider legal causation. Legal causation requires that the harm must result from a culpable act, the defendant's action does not have to be the sole cause of the resulting harm, there must be no novus acus interveniens (a new intervening act which breaks the chain of causation), and the defendant must take his victim as he finds him (i.e. the 'thin skull rule')


This is a summary offence and it is one that is the least serious of the non-fatal offences against the person. In Fagan v MPC, the House of Lords stated that "an assault is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence."

Fagan v MPC [1969]
Fagan v MPC [1969]
A policeman was directing the defendant to park his car. The defendant accidentally drove onto the policeman's foot. The policeman shouted at him to g

Actus reus of Assault:

1. The victim must apprehend. Meaning, they must be aware that they are about to be subjected to some sort of violence. This needs to be present in order for it to be classified as assault. (R v Lamb) Conduct is usually what amounts to an assault, however depending on how severe, words can also be classified as assault. (R v Constanza) Further, silence can also amount to assault. ( R v Ireland)

2. It must be immediate. Meaning, the threat must be immediate; threats of future violence do not amount to assault.

3. It must be unlawful. If the defendant has a lawful excuse or reason to use force against another, the actions do not amount to assault. For example, self-defence, reasonable punishment of a child, or if the victim consents.

4. Personal Violence

Mens rea of Assault:

Essentially, the mens rea of assault is that there was an intention to cause the victim to apprehend immediate unlawful personal violence or one was being reckless and apprehension was caused.


Like Assault, Battery is also a summary offence. It is the second of the least serious offences of the non-fatal offences against the person. In R v Ireland, battery was defined as the "unlawful application of force by the defendant upon the victim."

Actus reus of Battery:

1. The Application of force does not need to be direct. ( DPP v K)

2. The use of force must be unlawful in order to amount to a Battery.

3. Physical Force must be present, it does not have to be a high amount of force-any touching is sufficient. ( Faulkner v Talbot)

Mens rea of Battery:

There needs to be an intention to apply unlawful physical force or the defendant must be reckless when force is applied.

Actual Bodily Harm (ABH) under S.47 Offences Against the Person Act 1861

S. 47 of the Offences Against the Person Act 1860 sets out that it is an offence to commit an assault causing actual bodily harm. The offence can also be committed by a battery which is far more common for these types of offences under s.47 than just by an assault. It is a triable either-way offence which has a maximum sentence of 5 years imprisonment.

Actus reus of Actual Bodily Harm:

1. All elements of an Assault or Battery must be present to constitute Actual Bodily Harm unless there are lawful reasons that do not constitute it as an offence under section 47. (Reasonable punishment of a child or consent)

2. Assault or Battery must cause Actual Bodily Harm which requires both factual and legal causation.

3. Actual Bodily Harm-as defined in R v Miller, it must include "any injury calculated to interfere with the health or comfort of the victim." Further, this can include psychiatric injury if it is sufficient. ( R v Ireland)

R v Miller [1983]
R v Miller [1983]
The defendant had been out drinking for the evening. He went back to the house he had been staying in and fell asleep on a mattress with a lighted cig

Mens rea of Actual Bodily Harm:

The mens rea must have a subjective intention or recklessness as to the assault or battery.

Wounding and Grievous Bodily Harm- S.20 & S.18 Offences Against the Person Act 1861

The Offences of Wounding and Grievous Bodily Harm are found under the Offences Against the Person Act of 1861. Section 20 states the lesser offence that is triable either-way and carries only a maximum penalty of 5 years imprisonment. Offences under section 18 are more serious offences which are indictable and hold a maximum sentence of 25 years. The difference between offences under section 18 and section 20 relate to the mens rea.

S.20 Offences Against the Person Act 1861

"Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm on any other person, either with or without a weapon or instrument, shall be guilty of a misdemeanour"

Actus reus:

1. Actions that are unlawful that cause wounding or grievous bodily harm unless they are considered lawful. (For example, those that act in self-defence or commit an action in order to prevent a crime from occurring)

2. A defendant through his or her actions cause a wound on another person

3. The harm against the victim must be grievous bodily harm, meaning the harm must be really serious. (DPP v Smith) What constitutes serious harm is objectively assessed. (R v Brown and Stratton)

4. There must be infliction of harm. It must be a direct or indirect application of force. (R v Wilson)

DPP v SMITH [1961]
DPP v SMITH [1961]
A policeman tried to stop the defendant from driving off with stolen goods by jumping on to the bonnet of the car. The defendant drove off at speed an
R v Brown (1993)
R v Brown (1993)
There were five adult men who were all consenting sado-masochists. They were convicted of offences of assault causing actual bodily harm (s 47 Offence
R v Wilson (2007)
R v Wilson (2007)
The defendant who was 13 was charged with murder together with his father. They were Charged with the murder of the defendant's mother. He stated he d
R v Wilson (1996)
R v Wilson (1996)
A wife requested her husband to brand his initials on her buttocks with a heated butter knife. The wife’s burns became infected and needed medical t

Mens rea :

Under section 20, the defendant must have the intention or be reckless when causing harm. There is no need for prosecution to establish that they intended to cause serious harm or they were reckless when causing serious harm. The subjective test applies-in other words, the defendant must have foresaw that there was a risk of causing some sort of harm. ( R v Parmeter)

S.18 Offences Against the Person Act 1861

"Whoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent, to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony."

Actus reus:

A person must unlawfully wound or cause Grievous Bodily Harm on another person. The only difference between s. 18 and s. 20 is that the offence under s. 20 must be committed on another person whereas s. 18 can be on any person which would include those who inflict harm on themselves.

Mens rea


mens rea

under s.18 requires either intention to cause grievous bodily harm or the intention to resist or prevent lawful protection of any person which then causes harm.

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