LORD JUSTICE ROBERT GOFF: Mr. Justice Farquharson is absent on circuit; the judgment I am about to deliver is the judgment of the court, on which we are all agreed.
On 27th March, 1981 the appellant, David Keith Pagett, was convicted, after a trial before Mr. Justice Park and a jury, on a number of counts relating to very serious offences — one count of possession of a firearm with intent to endanger life; two counts of kidnapping; three counts of attempted murder; and one count of manslaughter. On each count he was sentenced to a term of 12 years' imprisonment concurrent.
The evidence before the jury (which must have been substantially accepted by them) reveals a terrible story, with a tragic conclusion. The appellant, who was aged 31 and was separated from his wife, formed a relationship with a young girl called Gail Kinchen. In June 1980 Gail, who was then aged 16 and was six months pregnant by the appellant, left him after various domestic upsets and returned to the home of her mother and stepfather (Mr. and Mrs. Wood) in Brandon Park Road, Birmingham.
On the evening of 11th June the appellant armed himself with his brother's shotgun and a number of cartridges and then went off in his sister's mini-car to look for Gail. He arrived at the Woods' house at 77 Brandon Park Road shortly after midnight. Mr. Wood answered the door, and found the appellant standing there with a shotgun held in both hands at an angle of about 45°. The appellant said: "Now try your commando tricks. " Mr. Wood slammed the door and ran through the house, out into the garden. He tried to push his wife into a lean-to shed. The appellant followed him. Mrs. Wood turned and saw him aiming his gun at her husband. She knocked the gun into the air; as she did so, she heard a bang. The appellant hit her on the head with the gun and she fell to the ground. The appellant then fired the gun at Mr. Wood as he fled over the garden fence a few feet away. Mr. Wood was shot in his rear left thigh; later over 100 pellets were removed from an area covering about nine inches. The appellant then frogmarched Mrs. Wood away; she was shouting for help as she went. He dragged her off to his car, asking where Gail was. Mrs. Wood directed him to the area where she and her husband had earlier dropped Gail to visit her friend Maria. The appellant still carried his shotgun, which he had reloaded. They arrived at the flat where Gail was, 15 Masefield Square. There were various people there, including Gail. The appellant lined them up, waving his shotgun at them. He hit Gail; as Mrs. Wood tried to grab the gun, he hit her with it in the ribs, knocking her to the floor. She was later found to have cracked or fractured ribs in her lower right chest. He called Gail, who was crying; she went out. He hit her again in the hall. There were thuds, as if she had fallen downstairs. He called for Mrs. Wood; she asked the others to call the police, and went out to join the appellant and Gail.
The appellant drove off in the mini, with Mrs. Wood in the passenger seat and Gail sitting on her lap. He kept on hitting Gail. A police car came up; in it were two police officers who were on the lookout for the mini which was believed to contain an armed man wanted after a shooting incident. Gail signalled to it; the appellant threatened to kill both Gail and Mrs. Wood. Mrs. Wood got out on the passenger side; her evidence was that the appellant hit her on the head and knocked her out of the car. The appellant and Gail got out on the driver's side. Gail was hysterical, pleading with the appellant not to shoot Mrs. Wood. The officers got out of their car. The appellant threatened them with his gun, shouting: "Back off. I am going to shoot you. " The officers took cover in a nearby garden. The appellant then drove off with Gail.
The officers returned to their car and followed the appellant's mini to Deelands Road, where it stopped. Two other officers had arrived at Deelands Road. The appellant and Gail got out of the mini; the appellant was carrying his shotgun, and Gail was walking in front of him. The appellant gestured with his gun at the officers and said: "One more step pal, and I will let you have it. " The appellant took Gail into a block of flats, No. 21 Deelands Road.
No. 21 Deelands Road consisted of three floors, with two flats on each floor, opening out of a common central staircase. The appellant took Gail into his flat, No. 4, which was on the first floor. A number of police cars were by then parked opposite the flat, about 250 yards away, with their headlights on. A police officer, using a loud hailer, told the appellant to surrender his gun and come out. The appellant shouted to the police to turn their lights off or he would shoot at them and he would shoot the girl. Headlights were put out. The officer with the loud hailer again told the appellant to surrender his gun and come out. The appellant said that there was no way he would come out alive, he would shoot the girl and himself. The police told him that Mr. Wood was not badly hurt; he refused to come out, saying that he would get 17 years. He shouted for other car lights to be put out, and then fired his gun twice at the cars. They were hit but not badly damaged; some police officers were hit by pellets but not injured. Gail shouted out: "Please move or he will shoot me. " The police cars were moved.
By then, police officers trained in the use of weapons and in the handling of "hostage situations" had arrived on the scene. They were split into three teams of two officers each. Two officers were stationed in the entrance to the block of flats; two others were stationed at the rear. The third pair of officers, D. S. Sartain and D. C. Richards, entered the public part of the block of flats, in order to contain the appellant. D. C. Richards, using a loud hailer, called on the appellant to surrender. Shortly before 2 a. m., the appellant brought Gail out on to the balcony at the rear of his flat. He appeared to have a gun in his right hand, which was round her waist, and his left hand was round her neck. He shouted for the police to go or he would shoot; he said that if they did not leave he would kill her. Gail screamed: "Get back or he will kill me. " One of the officers called out to the appellant that he was surrounded by armed police, and should come out. The appellant shouted back and took the girl back into the flat.
Meanwhile D. S. Sartain and D. C. Richards had taken up position on the landing on the first floor, outside the adjacent doors of Nos. 3 and 4. There was only one light on in the common staircase, at the rear of the ground floor. The two officers were provided with bullet-proof jackets. The peephole in the front door of No. 4 was covered with mud by the police. There was no sound in the flat; the officers thought that the appellant and Gail might be asleep. Then the door was unlocked and opened. There was no light inside the flat. A shotgun barrel was poked out of the doorway. D. S. Sartain shouted that they were armed. The door was closed. Then it opened again. The shape of a woman (it must have been Gail) was in the doorway. The appellant had his left arm round her neck. The gun was in his right hand, pointing at the police officers. The appellant told them to get downstairs. The officers warned him several times that they were armed, and told the appellant to stand still and drop his gun. The appellant moved towards the officers pushing Gail in front of him.
The two officers retreated to the top landing. It was very dark up there. D. S. Sartain walked along the landing, but could see nothing downstairs; he returned to D. C. Richards at the top of the stairs. He stood by the banister. D. C. Richards was on his right. They could see practically nothing. They could hear the appellant threatening to kill them. The appellant said to Gail: "Talk to them, they don't think I mean it. " Gail screamed: "he is going to kill me. " The appellant shouted out words to the effect that they were testing him and he was going to show them. A figure loomed round the corner on the upper flight of the stairs and started coming up towards the police officers. As D. C. Richards shouted to the appellant to stand still, the appellant fired his shotgun. D. S. Sartain fired two shots, and D. C. Richards fired four. There was another shotgun blast from the appellant. D. C. Richards fired two more shots, and D. S. Sartain one. The officers had fired their guns instinctively, not taking any particular aim. Gail shouted: "You've shot me. You've shot me. " As D. C. Richards was reloading his gun, D. S. Sartain ran down the stairs. D. C. Richards followed. They found the appellant sitting on the floor at the corner of the landing, with Gail sitting on top of him. The shotgun was on the floor: D. S. Sartain slid it out of the appellant's reach. Thirteen unused cartridges were later found in the appellant's pocket. It was plain that he had been using Gail as a shield as he went up the stairs, though the police officers could not see this. She received three bullet wounds, of which she later died. The appellant was unharmed by the bullets fired by the police officers. Very fortunately, the two police officers were unharmed by the shots fired by the appellant, which struck the banister and were deflected up towards the ceiling.
At the trial, the appellant dismissed his counsel and defended himself. He called no evidence, but made a statement from the dock and a closing speech. We need not burden this judgment with his defence, which was plainly rejected by the jury. He was convicted by the jury of possessing a firearm with intent to endanger life; of kidnapping Mrs. Wood and Gail Kinchen; of the attempted murder of Mr. Wood, D. S. Sartain and D. C. Richards. He was acquitted of the murder of Gail, but convicted of her manslaughter.
The present appeal against conviction is concerned only with the conviction of the manslaughter of Gail Kinchen. In a sense, it is academic; because, although there is an application that if the conviction of manslaughter should be quashed the sentence should be reviewed, it appears to the court to be inevitable, having regard to the extreme gravity of the other offences of which he was convicted, that the sentence of 12 years for the other offences should stand in any event. However, the grounds of appeal raise a question of law alone and for that reason the appeal has been referred directly to the full court.
The question of law relates to the direction given by the learned judge to the jury in respect of the count of murder, and the alternative count of manslaughter, of Gail Kinchen. He directed the jury as follows. First he gave them the full definition of murder in the following terms:
"A person who unlawfully and deliberately causes the death of another person intending to kill or to do serious bodily harm to that person is guilty of murder, and so in the present case the prosecution have to prove beyond all reasonable doubt two things: first that by his unlawful and deliberate acts the defendant caused Gail's death or was a cause of her death. Secondly, in doing those acts he intended to kill or to do serious bodily harm to her. "
Next he considered with the jury the two acts of the appellant which the prosecution contended were unlawful and deliberate and which caused her death, viz. (1) the firing of the gun at the police officers (which he explained could constitute an assault), and (2) the physical force applied to Gail so that her body could be used as a shield (which again he explained could constitute an assault). Then the learned judge turned to the question of causation. On this, he directed the jury as follows:
"Now, Members of the Jury, if you were satisfied that he did those 2 unlawful and deliberate acts, the question now becomes whether by those acts he caused or was a cause of Gail's death. It sometimes happens that difficult questions arise when a jury has to decide whether something is a cause of the death of the victim. This is just such a case. In those circumstances it is for me to decide as a question of law whether by his unlawful and deliberate acts the defendant caused or was a cause of Gail's death, but the answer to that question of law depends upon findings of fact which you alone can decide, and accordingly I have to direct you that if you find the facts I am about to mention proved beyond all reasonable doubt, then the defendant would have caused or been a cause of Gail's death. It might help you if I explain that the act of an accused person on the charge of murder need not be the sole cause or even the main cause of the death of the victim. It is not necessary to prove actual physical violence on the victim by the accused, but let me illustrate that point by an old case which came before the courts years and years ago. A man quarrelled with the woman he was living with. He ran towards her in order to hit her but he did not succeed in doing so. In fear or in retreat from the attack she jumped or fell from a window and was killed. The courts held that he, although he had not laid a finger on her, was a cause of her death.
"I turn now to the question whether the defendant caused or was a cause of Gail's death. I am going to mention the facts. If you are sure that the following facts have been proved beyond all reasonable doubt, then the defendant would have caused or would have been a cause of Gail's death. First of all, that he fired the shot-gun deliberately at the police officers before any shot was fired by them. In other words, sure that he fired first. Secondly that his act in firing at the police officers caused them to fire back with the result that bullets from their weapons shot Gail and caused her death. Next, that in firing back for that reason the police acted reasonably either by way of self-defence or in the performance of their duty as police officers, or both. I will explain that in a little more detail in a moment. Lastly, that from the beginning to the end of the firing Gail was being used against her will and by force by the defendant as a shield to protect him from any shots fired by the police. If you are not sure about any of those matters, acquit him, and you will acquit him of course because the chain which links his deliberate and unlawful acts with Gail's death will have been broken. "
Having directed the jury on causation in those terms, he then turned to the question whether the police officers fired at the appellant because they had been fired at by him, and if so, whether they acted reasonably; and in doing so, he explained to the jury both the law relating to self-defence and, in relation to the question whether the police acted reasonably in the performance of their duties as police officers, the legal principle that a person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of an offender or a suspected offender.
Finally, in connection with the count of murder, he gave the following direction on the necessary intent (plainly founded upon Hyam v. D. P. P. (1975) A C 55):
"Members of the jury, if you were satisfied by the evidence so that you felt sure that the defendant caused or was a cause of Gail's death, the prosecution must next satisfy you on the charge of murder that by his deliberate and unlawful acts he intended either to kill Gail or to cause her really serious bodily harm. In other words, they must satisfy you that he acted with a willingness in his mind to produce, as a consequence of what he did, either the death of Gail or serious bodily injury to her.
"The prosecution will have established the necessary intent if they satisfy you that in doing what he did, he knew that it was probable that his unlawful acts would result in Gail's death or in really serious bodily harm to her.
"I have used the word 'knew'. Another word which expresses equally well the state of mind which has to be proved is 'foresaw'; he foresaw that it was probable that his unlawful acts would result in Gail's death or in really serious bodily harm to her. "
Having directed the jury on the count of murder, the learned judge turned to the alternative count of manslaughter. Here he gave a direction (obviously founded upon D. P. P. v. Newbury (1977) A C 500) as follows: "A person would be guilty of manslaughter if he intentionally did an act which was unlawful and dangerous, and that act caused the death of another person. For this purpose — the purpose of the charge of manslaughter — the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to the risk of some harm resulting from it, albeit not serious harm. On a charge of manslaughter it is not necessary to prove that the accused knew that his act or acts were unlawful, nor is it necessary to prove that he knew his acts were dangerous.
"So if you were sure in this case that the two unlawful acts — the assault on the police by firing at them and the assault on Gail — considered in the way I have described, caused Gail's death and that they were acts which all sober and reasonable people would inevitably recognise would subject Gail to the risk of some harm, then the defendant would be guilty of manslaughter. "
It is difficult to imagine a more lucid and careful summing-up on these topics, in a form designed to be as fair as possible to the appellant and at the same time as helpful as possible to the jury.
The criticism of the summing-up, advanced in this court by Lord Gifford (to whose argument we are much indebted), was directed primarily to the direction to the jury on causation, which was of course equally applicable to the count of murder and the alternative count of manslaughter. The three specific points raised on behalf of the appellant were as follows (we quote from the grounds of appeal):
(1) The learned judge erred in law in directing that the jury must as a matter of law find that the appellant caused the death of the deceased, if they were satisfied as to the four matters of fact which he sets out. The learned judge ought rather to have left it to the jury to determine as an issue of fact whether the defendant's act in firing at the police officers was a substantial, or operative, or imputable, cause of the death of the deceased.
(2) In the alternative, if the learned judge was correct in himself determining as a matter of law what facts would amount to causation of the death by the appellant, he ought to have held that the appellant had not in the circumstances of this case caused the death of the deceased. The learned judge, in directing himself upon the law, ought to have held that where the act which immediately-resulted in fatal injury was the act of another party, albeit in legitimate self-defence, then the ensuing death was too remote or indirect to be imputed to the original aggressor.
(3) If the learned judge's direction as to causation was correct, then he erred in law in directing the jury that they could bring in an alternative verdict of manslaughter. The requirement that the jury had to be satisfied that the deceased was being used by the appellant as a shield required the jury to apply a test which was the same or very similar to the test of mens rea in murder.
The argument addressed to this court by Lord Gifford on behalf of the appellant was concentrated primarily on the first and second grounds of appeal, and was as presented concerned with the issue of causation. We find it convenient to deal first with the second ground of appeal. We do so because this ground raises a particular, defined, issue, founded upon certain United States authorities; furthermore, having considered those authorities and the submission founded upon them, we are satisfied that this ground of appeal is not well-founded, and we feel that it would be more satisfactory if we were to deal with this point before turning to consider the more fundamental question raised on the first ground of appeal.
The United States authorities cited to us, which reflect some diversity of judicial opinion, were concerned with the question whether an accused person could be convicted of the murder or manslaughter of a person by shooting, where the fatal shot was fired not by the accused but by some other person. In Commonwealth v. Almeida 362 Pa. 596 (1949), a case concerned with a robbery in the course of which shots were exchanged with police officers and a police officer was killed, the accused (one of the robbers) was convicted of the murder of the police officer. It was held by the Supreme Court of Pennsylvania, following dicta in the earlier case of Commonwealth v. Moyer 357 Pa. l8l (1947), that it was immaterial whether the shot which killed the police officer was fired by one of the robbers or by a police officer, the circumstances being such that the police officers were acting both in justifiable self-defence and in the performance of their duty. In these circumstances, even if the fatal shot was fired by one of the police officers, "The felonious acts of the robbers in firing shots at the policemen, well knowing that their fire would be returned, as it should have been, was (sic) the proximate cause of Officer Ingling's death". The point was, as appears from this brief quotation, considered by the court to raise a question of causation. The decision was subsequently followed in Commonwealth v. Thomas 382 Pa. 639. However, in Commonwealth v. Redline 137 Atl. (2d. ) (Pa. ) (1958), the earlier case of Thomas was overruled, and Almeida itself, although not formally overruled, was plainly disapproved by the majority of the court. In Redline, it fell to the court to consider a case of armed robbery which gave rise to a gun battle between the robbers and police officers, in the course of which one of the robbers was killed by a bullet fired by one of the police officers. A majority of the Supreme Court of Pennsylvania held (following a number of earlier authorities, including in particular Commonwealth v. Campbell 89 Mass, 541 (1863), Butler v. The People 125 Ill. 64l (1888), and Commonwealth v. Moore 121 Ky. 97 (1905)) that the conviction of one of the robbers for the murder of the deceased robber could not stand, the fatal shot not having been fired by him but by another person with whom he was not acting in concert. It was on this case in particular, and on the earlier cases cited in it, that Lord Gifford founded his argument in the present case.
Examination of the reasoning of the majority of the court in Redline shows, however, that the decision provides no useful guidance to an English court today. The point is that the reasoning of the Pennsylvanian court was concerned with the scope of the felony murder doctrine which, since the abolition of constructive malice in murder by section 1 of the Homicide Act, 1957, forms no part of English law. The approach of the majority of the Pennsylvanian court is amply illustrated by the following passage taken from page 476 of the report: "In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the requirement of the felony-murder doctrine....
"The legal situation which for years obtained in this State in cases of felony-murder was aptly epitomized by Mr. Justice Parker in Commonwealth v. Guida 341 Pa. 505, 308, 19 A. 2d. 100, as follows: '.... if a person killed another in doing or attempting to do another act, and if the act done or attempted to be done was a felony, the killing was murder. There was thus supplied the state of mind called malice which was essential to constitute murder. The malice of the initial offense attaches to whatever else the criminal may do in connection therewith. '.... And so, until the decision of this court in Commonwealth v. Almeida...., the rule which was uniformly followed, whether by express statement or by implication, was that in order to convict for felony-murder, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking. " It was this principle, reflected in the earlier cases, which was reaffirmed in the case of Redline.
It at once becomes apparent that the case of Redline, and the earlier cases cited in it in support of the conclusion in that case, are of no assistance to an English court concerned with the English law of murder, of which the felony-murder doctrine forms no part. Even so, it was pressed upon us by Lord Gifford that there either was, or should be, a comparable rule of English law, whereby, as a matter of policy, no man should be convicted of homicide (or, we imagine, any crime of violence to another person) unless he himself, or another person acting in concert with him, fired the shot (or, we imagine, struck the blow) which was the immediate cause of the victim's death (or injury).
No English authority was cited to us in support of any such proposition, and we know of none. So far as we are aware, there is no such rule in English law; and, in the absence of any doctrine of constructive malice, we can see no basis in principle for any such rule in English law. Lord Gifford urged upon us that, in a case where the accused did not, for example, fire the shot which was the immediate cause of the victim's death, he will inevitably have committed some lesser crime, and that it would be sufficient that he should be convicted of that lesser crime. So, on the facts of the present case, it would be enough that the appellant was convicted of the crime of attempted murder of the two police officers, D. S. Sartain and D. C. Richards. We see no force in this submission. In point of fact, it is not difficult to imagine circumstances in which it would manifestly be inadequate for the accused merely to be convicted of a lesser offence; for example, a man besieged by armed terrorists in a house might attempt to make his escape by forcing some other person to act as a shield, knowing full well that that person would in all probability be shot, and possibly killed, in consequence. For that man merely to be convicted of an assault would, if the person he used as a shield were to be shot and killed, surely be inadequate in the circumstances; we can see no reason why he should not be convicted at least of manslaughter. But in any event there is, so far as we can discern, no basis of legal principle in Lord Gifford's submission. We are therefore unable to accept it.
In our judgment, the question whether an accused person can be held guilty of homicide, either murder or manslaughter, of a victim the immediate cause of whose death is the act of another person must be determined on the ordinary principles of causation, uninhibited by any such rule of policy as that for which Lord Gifford has contended. We therefore reject the second ground of appeal.
We turn to the first ground of appeal, which is that the learned judge erred in directing the jury that it was for him to decide as a matter of law whether by his unlawful and deliberate acts the appellant caused or was a cause of Gail Kinchen's death. It is right to observe that this direction of the learned judge followed upon a discussion with counsel, in the absence of the jury; though the appellant, having dismissed his own counsel, was for this purpose without legal representation. In the course of this discussion, counsel for the prosecution referred the learned judge to a passage in Professor Smith and Professor Hogan's Criminal Law, 4th ed., at page 272, which reads as follows: "Causation is a question of both fact and law. D's act cannot be held to be the cause of an event if the event would have occurred without it. The act, that is, must be a sine qua non of the event and whether it is so is a question of fact. But there are many-acts which are sine qua non of a homicide and yet are not either in law, or in ordinary parlance, the cause of it. If I invite P to dinner and he is run over and killed on the way, my invitation may be a sine qua non of his death, but no one would say I killed him and I have not caused his death in law. Whether a particular act which is a sine qua non of an alleged actus reus is also a cause of it is a question of law. Where the facts are admitted the judge may direct the jury that a particular act did, or did not, cause a particular result. " There follows a reference to R. v. Jordan (1956) 40 Cr. App. E. 152.
For the appellant, Lord Gifford criticised the statement of the learned authors that "Whether a particular act which is a sine qua non of an alleged actus reus is also a cause of it is a question of law". He submitted that that question had to be answered by the jury as a question of fact. In our view, with all respect, both the passage in Smith and Hogan's Criminal Law, and Lord Gifford's criticism of it, are over-simplifications of a complex matter.
We have no intention of embarking in this judgment on a dissertation of the nature of causation, or indeed of considering any matters other than those which are germane to the decision of the issues now before us. Problems of causation have troubled philosophers and lawyers throughout the ages; and it would be rash in the extreme for us to trespass beyond the boundaries of our immediate problem. Our comments should therefore be understood to be confined not merely to the criminal law, but to cases of homicide (and possibly also other crimes of violence to the person); and it must be emphasised that the problem of causation in the present case is specifically concerned with the intervention of another person (here one of the police officers) whose act was the immediate cause of the death of the victim, Gail Kinchen.
In cases of homicide, it is rarely necessary to give the jury any direction on causation as such. Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused has by his act caused the victim's death. But how the victim came by his death is usually not in dispute. What is in dispute is more likely to be some other matter: for example, the identity of the person who committed the act which indisputably caused the victim's death; or whether the accused had the necessary intent; or whether the accused acted in self-defence, or was provoked. Even where it is necessary to direct the jury's minds to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result. It is right to observe in passing, however, that even this simple direction is a direction of law relating to causation, on the basis of which the jury are bound to act in concluding whether the prosecution has established, as a matter of fact, that the accused's act did in this sense cause the victim's death. Occasionally, however, a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim's death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens. We are aware that this time-honoured Latin term has been the subject of criticism. We are also aware that attempts have been made to translate it into English; though no simple translation has proved satisfactory, really because the Latin term has become a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person, but that that act was so independent of the act of the accused that it should be regarded in law as the cause of the victim's death, to the exclusion of the act of the accused. At the risk of scholarly criticism, we shall for the purposes of this judgment continue to use the latin term.
Now the whole subject of causation in the law has been the subject of a well-known and most distinguished treatise by Professors Hart and Honore. Passages from this book were cited to the learned judge, and were plainly relied upon by him; we, too, wish to express our indebtedness to it. It would be quite wrong for us to consider in this judgment the wider issues discussed in that work. But, for present purposes, the passage which is of most immediate relevance is to be found in Chapter XII, in which the learned authors consider the circumstances in which the intervention of a third person, not acting in concert with the accused, may have the effect of relieving the accused of criminal responsibility. The criterion which they suggest should be applied in such circumstances is whether the intervention is voluntary, i. e. whether it is "free, deliberate and informed". We resist the temptation of expressing the judicial opinion whether we find ourselves in complete agreement with that definition; though we certainly consider it to be broadly correct and supported by authority. Among the examples which the authors give of non-voluntary conduct, which is not effective to relieve the accused of responsibility, are two which are germane to the present case, viz. a reasonable act performed for the purpose of self-preservation, and an act done in performance of a legal duty.
There can, we consider, be no doubt that a reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused's own act, does not operate as a novus actus interveniens. If authority is needed for this almost self-evident proposition, it is to be found in such cases as R. v. Pitts (1842) C. & M. 284, and R. v. Curley (1909) 2 Cr. App. R. 96. In both these cases. the act performed for the purpose of self-preservation consisted of an act by the victim in attempting to escape from the violence of the accused, which in fact resulted in the victim's death. In each case it was held as a matter of law that, if the victim acted in a reasonable attempt to escape the violence of the accused, the death of the victim was caused by the act of the accused. Now one form of self-preservation is self-defence; for present purposes, we can see no distinction in principle between an attempt to escape the consequences of the accused's act, and a response which takes the form of self-defence. Furthermore, in our judgment, if a reasonable act of self-defence against the act of the accused causes the death of a third party, we can see no reason in principle why the act of self-defence, being an involuntary act caused by the act of the accused, should relieve the accused from criminal responsibility for the death of the third party. Of course, it does not necessarily follow that the accused will be guilty of the murder, or even of the manslaughter, of the third party; though in the majority of cases he is likely to be guilty at least of manslaughter. Whether he is guilty of murder or manslaughter will depend upon the question whether all the ingredients of the relevant offence have been proved; in particular, on a charge of murder, it will be necessary that the accused had the necessary intent, on the principles stated by the House of Lords in Hyam v. D. P. P. (1975) A C 55.
No English authority was cited to us, nor we think to the learned judge, in support of the proposition that an act done in the execution of a legal duty, again of course being an act itself caused by the act of the accused, does not operate as a novus actus interveniens. Before the judge, the cases relied on by the prosecution in support of this proposition were the two Pennsylvanian cases already referred to, Commonwealth v. Moyer and Commonwealth v. Almeida. However, since the case of Redline, neither of these cases can be regarded as authority in the State of Pennsylvania: Redline was not cited to the learned judge, we suspect because it is not referred to in Hart and Honore's Causation in the Law, almost certainly because the report of Redline was not available to the learned authors when their treatise went to the press. Even so, we agree with the learned judge that the proposition is sound in law, because as a matter of principle such an act cannot be regarded as a voluntary act independent of the wrongful act of the accused. A parallel may be drawn with the so-called "rescue" cases in the law of negligence, where a wrongdoer may be held liable in negligence to a third party who suffers injury in going to the rescue of a person who has been put in danger by the defendant's negligent act. Where, for example, a police officer in the execution of his duty acts to prevent a crime, or to apprehend a person suspected of a crime, the case is surely a fortiori. Of course, it is inherent in the requirement that the police officer, or other person, must be acting in the execution of his duty that his act should be reasonable in all the circumstances: see section 3 of the Criminal Law Act, 1967. Furthermore, once again we are only considering the issue of causation. If intervention by a third party in the execution of a legal duty, caused by the act of the accused, results in the death of the victim, the question whether the accused is guilty of the murder or manslaughter of the victim must depend on whether the necessary ingredients of the relevant offence have been proved against the accused, including in particular, in the case of murder, whether the accused had the necessary intent.
The principles which we have stated are principles of law. This is plain from, for example, the case of Pitts, to which we have already referred. It follows that where, in any particular case, there is an issue concerned with what we have for convenience called novus actus interveniens, it will be appropriate for the judge to direct the jury in accordance with these principles. It does not however follow that it is accurate to state broadly that causation is a question of law. On the contrary, generally speaking causation is a question of fact for the jury. Thus in, for example, R. v. Towers (1874) 12 Cox C. C. 530, the accused struck a woman; she screamed loudly, and a child whom she was then nursing turned black in the face, and from that day until it died suffered from convulsions. The question whether the death of the child was caused by the act of the accused was left by the judge to the jury to decide as a question of fact. But that does not mean that there are no principles of law relating to causation, so that no directions on law are ever to be given to a jury on the question of causation. On the contrary, we have already pointed out one familiar direction which is given on causation, which is that the accused's act need not be the sole, or even the main, cause of the victim's death for his act to be held to have caused the death. Similarly, it was held by this court in the case of R. v. Blaue (1975) 6l Cr. App. R. 271 that "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 his victim's religious belief which inhibited her from accepting certain kinds of treatment was unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death. " (See at page 274 per Lord Justice Lawton delivering the judgment of the court. ) This was plainly a statement of a principle of law. Likewise, in cases where there is an issue whether the act of the victim or of a third party constituted a novus actus interveniens, breaking the causal connection between the act of the accused and the death of the victim, it would be appropriate for the judge to direct the jury, of course in the most simple terms, in accordance with the legal principles which they have to apply. It would then fall to the jury to decide the relevant factual issues which, identified with reference to those legal principles, will lead to the conclusion whether or not the prosecution have established the guilt of the accused of the crime of which he is charged.
It was submitted by Lord Gifford that any such conclusion would be contrary to the principles stated by the House of Lords in D. P. P. v. Stonehouse (1978) A. C. 55. In that case, which was concerned with an attempt to obtain property by deception, the trial judge directed the jury that certain conduct of the accused, if proved, would in law constitute the actus reus of an attempt. It was held by a majority of the House of Lords that the judge must leave it to the jury to decide on the evidence whether or not the accused had committed the alleged attempt, and the judge may not even direct the jury that, if certain acts are proved to their satisfaction, they must amount in law to an attempt. However that case simply exemplifies in a particular context the well-established principle that it is the function of the judge to direct the jury on the applicable law, and that he must not deprive the jury of their function to decide, on the law so stated to them, whether in fact the relevant offence has been committed. That principle does not conflict with what we have just stated with regard to the law of causation, which is consistent with the general approach that it is for the judge to direct the jury with reference to the relevant principles of law relating to causation, and then to leave it to the jury to decide, in the light of those principles, whether or not the relevant causal link has been established.
There is however one further aspect of the present case to which we must advert. On the evidence, Gail Kinchen was not just an innocent bystander killed by a shot fired from the gun of a police officer who, acting in reasonable self-defence, fired his gun in response to a lethal attack by the appellant: though on those facts alone it would, in our opinion, have been open to the jury to convict the appellant of murder or manslaughter. But if, as the jury must have found to have occurred in the present case, the appellant used Gail Kinchen by force and against her will as a shield to protect him from any shots fired by the police, the effect is that he committed not one but two unlawful acts, both of which were dangerous — the act of firing at the police, and the act of holding Gail Kinchen as a shield in front of him when the police might well fire shots in his direction in self-defence. Either act could in our judgment, if on the principles we have stated it was held to cause the death of Gail Kinchen, constitute the actus reus of the manslaughter or, if the necessary-intent were established, murder of Gail Kinchen by the appellant, even though the shot which killed her was fired not by the appellant but by a police officer.
In the light of these principles, we do not consider that any legitimate criticism can be made, on behalf of the appellant, of the direction given by the learned judge to the jury on the issue of causation in the present case. The most that can be said is that one statement by him was not, in our judgment, absolutely correct, viz. when he said: "It is for me to decide as a question of law whether by his unlawful and deliberate acts the defendant caused or was a cause of Gail's death, but the answer to that question of law depends upon the findings of fact which you alone can decide.... " Strictly speaking, it was for him to direct the jury on the applicable principles of law, leaving it for the jury to decide as a question of fact, on those applicable principles, whether the necessary causal link had been established. In practical terms, however, that is precisely what the learned judge did; and so his mis-statement (such as it was) of the legal position was of no materiality. Indeed, in stating the matters which the jury had to be sure about on causation, in order to convict the appellant, the judge was in our view generous to the appellant, in that he directed the jury that it was necessary that they should find both that he fired at the police officers and thereby caused them to fire back, and that he used Gail Kinchen as a shield by force and against her will. In our judgment, as we have already indicated, either of these acts could in the present case have constituted the necessary actus reus, whether of murder or manslaughter, causing Gail Kinchen's death.
For these reasons, we are unable to accept Lord Gifford's argument based on the first ground of appeal.
We turn finally to the third ground of appeal, which was that the learned judge erred in law in directing the jury that they could bring in an alternative verdict of manslaughter, because the requirement that the jury had to be satisfied that Gail Kinchen was being used by the appellant as a shield required the jury to apply a test which was the same as or very similar to the law of mens rea in murder. We can deal with this point quite shortly. In our judgment, even in circumstances such as these, the mens rea for murder and manslaughter are not the same. In the case of murder, the test (as stated by Lord Hailsham in Hyam v. D. P. P. (1975) A C 55 at pages 73-79) is "a subjective test of what was the state of mind of the accused". Before the act can be murder it must be "aimed at someone" and must in addition "be an act committed with one of the following intentions, the test of which is always subjective to the actual defendant:
"(i) The intention to cause death;
"(ii) The intention to cause grievous bodily harm in the sense of that term explained in Smith (1961) A. C. 290, at page 335, i. e., really serious injury; "
(iii) Where the defendant knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as the result of those acts..... "
In manslaughter, however, it is sufficient in a case such as the present that the accused intentionally did an act which is both unlawful and, objectively considered, dangerous, and which in fact caused the victim's death. It must follow that the mens rea for each crime is different; and further that, on the evidence before them, it was open to the jury in the present case to conclude (if they thought it right to do so) that the appellant did not have any one of the three subjective intentions specified by Lord Hailsham as constituting the mens rea of murder, but did have the necessary mens rea for manslaughter. In our opinion, the learned judge could have been, and might well have been, criticised if he had not given the jury the opportunity of returning an alternative verdict of manslaughter of Gail Kinchen by the appellant (who, it must be remembered, was not represented by counsel during the closing stages of the trial). For these reasons, we reject the argument founded on the third ground of appeal.
Accordingly, having held that all three grounds of appeal are not well-founded, the appeal against conviction will be dismissed.
MR. ALLEN: My Lord, may I first say I appear here as Lord Gifford's junior. He is, I am afraid, absent elsewhere. I have spoken to Lord Gifford, and obviously we had some inkling as to which way your Lordships' judgment was going. We considered that it would be appropriate to apply for a certificate. I have spoken to your learned Registrar who informs me that this court cannot receive that application without Mr. Justice Farquharson•
LORD JUSTICE ROBERT GOFF: That is quite right.
MR. ALLEN: May I simply make the application and invite your Lordships to adjourn. I understand that there is a date when the court could be reconstituted.
LORD JUSTICE ROBERT GOFF: What I think I would like to say is this. First of all, if we are to consider giving a certificate, we would be most obliged if you, with Lord Gifford, would formulate the question of law in writing and give Mr. Bowley a copy so that he could see it before any hearing takes place.
MR. ALLEN: May I say that I had made a preliminary attempt at that, but one would obviously want to reconsider that in the light of what your Lordship has said. Certainly I will do that, and in fact I have given my learned friend a copy of the first draft.
LORD JUSTICE ROBERT GOFF: Secondly, the date we have provisionally in mind is Friday fortnight.
MR. ALLEN: That is l8th February.
LORD JUSTICE ROBERT GOFF: I hope that is convenient, gentlemen, as a date, but that appears to be the only date possible for any such application.
MR. ALLEN: I will take that date from the court back to my clerk.
LORD JUSTICE ROBERT GOFF: It is actually the only date when Mr. Justice Farquharson can be here.
MR. ALLEN: Then there is no doubt about it at all. My Lords, perhaps the question of costs should be dealt with at that stage rather than today. Obviously we are legally aided in this matter.
LORD JUSTICE ROBERT GOFF: By all means if you wish it. Then we will meet again presumably, unless we hear to the contrary, on l8th February.
MR. ALLEN: Yes, I am grateful.
