SUPPOSE that Jim is walking to the shops. It is nine o'clock in the morning. Nearby is Kevin, driving home from an all-night bender and still thoroughly intoxicated. At two minutes past nine, Kevin mounts the pavement and collides with Jim, killing them both. Does Jim's walking cause Kevin's death? Surely not. But how do we distinguish this example from two recent causation decisions, Williams [2010] EWCA Crim 2552, [2011] 1 W.L.R. 588 and MH [2011] EWCA Crim 1508?
Both cases concerned the notorious offence of causing death by driving when unlicensed, disqualified, or uninsured; contrary to section 3ZB of the Road Traffic Act 1988. The Act makes it a crime, imprisonable for up to two years, if D “causes the death of another person by driving a motor vehicle on a road” when, at the time, D is committing any one of three predicate offences: driving without a licence, driving whilst disqualified, or driving while uninsured.
This is a highly problematic example of constructive liability. By committing one of the predicate offences, D becomes a strict-liability risk taker. Should anyone die while he is doing so, he commits a very serious crime. But the aggravating circumstance, the very feature that makes the crime so serious, is a matter of strict liability. Indeed, so are the predicate offences. That is neither right nor fair. Williams and MH confirm that D need not be at fault in any way for the death. Yet he is specifically punished for causing that death.
Not only is there no fault requirement, but traditional causation requirements are also attenuated by the statute. There is no criterion of causal salience, that the death be in some way related to the wrongfulness of D's conduct – a requirement articulated clearly by Dalloway (1847) 2 Cox C.C. 273. In that case, D was driving a cart without retaining a proper grip on the reins. A child ran in front of the cart and was killed. It was ruled that D might be convicted of manslaughter only if it were proved that, had D been using the reins correctly, the child would have been saved. Otherwise the predicate wrong, D's negligence, was not a cause of death.
As Williams and MH accept, section 3ZB abrogates this need for causal salience. It demands only that D must cause death by driving a motor vehicle on a road. The predicate offence (driving without a licence, etc.) is merely an accompanying circumstance. The core of the crime, what generates the real opprobrium, is just that somebody dies.
So far, one might be disappointed that Williams and MH did not try harder to interpret section 3ZB creatively. The ringing interpretive pronouncements of B v DPP [2000] 2 A.C. 428 are nowadays well behind us. But fair enough. The statutory wording is clear. Where these cases really give rise to concern is in their handling of the key remaining element: that D's driving be a cause of death.
In Williams, W lacked both insurance and a licence. He was otherwise driving lawfully and within the speed limit when the victim, L, suddenly stepped in front of his car, about three feet away. W was unable to stop in time, and L was killed.
The circumstances of MH were perhaps even more extreme. MH, without insurance, was driving at a safe speed on the correct side of the road. V was driving in the opposite direction. V was a vehicular time bomb, exhausted from overwork, disoriented by a cocktail of drugs, and weaving erratically across both sides of the road. Finally, he veered across the carriageway, collided with MH, and died. “In terms of civil law,” the court said, V “was 100% responsible for causing the accident and the respondent was not in any way at fault for the death,” at [22].
Nonetheless, W was convicted and the Court of Appeal ruled that proceedings against MH should be resumed. Indeed, W was sentenced to imprisonment for nine months, reduced on appeal to 24 weeks. W and MH were both culpably guilty of the predicate motoring offence. They knowingly drove without insurance. Yet they were not culpable for causing death.
In terms of legal doctrine, however, all that mattered was whether they caused another person's death by driving. Section 3ZB doesn't require a lot. But it does ask that much. Even so, as the courts observed (citing Hennigan (1971) 55 Cr. App. R. 262), the “cause” does not have to be primary. It simply has to be non-negligible, more than de minimis. Indeed, the court in Williams thought this a better way of putting things than a requirement that the cause be “significant” or “substantial”, agreeing with Lord Hoffmann in Environment Agency (Formerly National Rivers Authority) Respondent v Empress Car Co. (Abertillery) Ltd. [1999] 2 A.C. 22, 29 that “one cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule.”
In what way, then, was the defendants' driving per se more than a negligible contribution to the deaths? The decision in Williams never tells us. It seems that merely by being there, W helped to cause L's death. This is confirmed by the court in MH: “if [V] had ploughed into the respondent's van whilst stationary in a queue of traffic or at a traffic light, the respondent, it could be said, would have caused the death of [V] by driving a motor vehicle,” at [44].
That is not right. It means that Jim's walking to the shop causes Kevin's death. Suppose, alternatively, that Jim had been walking toward Lisa, having commenced an attempt to kill her, when Kevin ploughed into him and died. The accident should not make Jim a murderer. And it does not help to say, as the Court of Appeal might suggest, that driving is not like killing. The requirements of causation may differ somewhat across legal contexts, but causation must have some basic foundation, some common element. Or it is not causation.
The problem lies, as so often, with the mirage of sine qua non causation. If W and MH had not been driving on the road, L and V would not have died. But that does not mean their driving caused death. Except in the special case of omissions, the so-called “but for” relationship is not a variety of causation at all. It is just an indicium of causal relationships, no more than a convenient proxy. If A shoots B, killing him instantly, it is no answer that C also shot B a half-second later and would also have killed him. A causes B's death, not C. Conversely, suppose that B was walking slowly. Had B been running, A would have missed. That does not make B's walking a cause of death. Being there is not, by itself, causative. The court in MH explicitly declined to address this argument: “As to the fifth point (arguably there has to be a causal link between the driving and not just the fact that the car was on the road at that time and the death), whilst seeing some force in the argument we are constrained by the decision in Williams not to accept it, even though it does not seem specifically to have been argued in that case,” at [46]. But the point was not merely “arguable”. It is a clear requirement of the statute.
It is not as if the point was unarguable. On the facts, there was debatably more than mere presence. Driving a car, even at lawful speeds, sets in motion forces of considerable destructive power. It was those very kinds of forces that helped to kill L and V. This is what differentiates Williams and MH from Jim the shopper, and indeed from the driver waiting at a traffic light. Unfortunately the Court of Appeal saw no need to develop this line of reasoning. Even if it had, of course, such analysis cannot make the convictions morally satisfactory. But the blame for that would then lie with the framing of the statute.
