The facts of Wallace [2018] EWCA Crim 690 are as tragic as they are unusual. The victim, Mr van Dongen, and the defendant, had formerly been in a long-term relationship. On 22 September 2015, the victim visited the defendant’s flat, at her request. The defendant threw a glass of sulphuric acid into the victim’s face, with the words; “If I can’t have you, no one else will”. The victim suffered catastrophic injuries. He was left severely disfigured, lost the sight in one of his eyes, had to have his left leg amputated and was left permanently paralysed from the neck down.
The victim endured these injuries for many months. Shortly after being discharged from hospital to a care home, Mr van Dongen, a Dutch national, was moved by his father to a hospital in Belgium. Within a week of his arrival in Belgium, he made an application for voluntary euthanasia, which is lawful in Belgium if it is carried out in accordance with the 2002 Belgian Act on Euthanasia. On 2 January 2017, Mr van Dongen’s life was ended, in accordance with his wishes, by doctors at the Belgian hospital. Such actions, had they been carried out by doctors in this jurisdiction, would have constituted the offence of murder.
The defendant was charged with applying a corrosive fluid with intent contrary to section 29 of the Offences Against the Person Act 1861. After the victim’s death, Ms Wallace was charged with murder.
The defendant applied to dismiss the murder charge before Sir John Royce, sitting as a High Court Judge. The defendant argued that the act of voluntary euthanasia, as a free, deliberate and informed decision, represented a novus actus interveniens, thus breaking the chain of causation in a case in which the victim would otherwise have survived. The application to dismiss was refused; the court concluding that the jury would be entitled to say that the defendant’s act was a substantial, if not the main, cause of the victim’s death.
At the close of the prosecution’s case the defence made a submission of no case to answer on the count of murder. The trial judge, Mrs Justice May, agreed with this submission and withdrew the murder charge. The prosecution appealed pursuant to the provisions at section 58 of the Criminal Justice Act 2003, which allow appeals to the Court of Appeal against terminating rulings made in the Crown Court.
The formulation of a comprehensive test for causation had long proved problematic
The argument advanced by the defence was, in brief, that Mr van Dongen had been killed by the doctors in Belgium and not by the defendant. The exercise of his free choice, unaffected by any psychiatric condition and prohibited under domestic law, broke the chain of causation. The prosecution contention was that it was for the jury to decide whether the injuries caused by the defendant were a substantial and operating cause of death, or whether the subsequent acts meant that the injuries were no more than the setting in which the act causing the victim’s death occurred.
The Court of Appeal, in a judgment delivered by Sharp LJ, acknowledged that the formulation of a comprehensive test for causation had long proved problematic.
In agreeing with the prosecution’s submission that a jury could conclude that the defendant was the legal cause of the victim’s death, the court emphasised that there may be multiple legally effective causes. To assess whether the defendant could be a legal cause of the victim’s death, the court held that it was necessary to consider the proximity between the relevant events in the case. It could not sensibly be disputed that Mr van Dongen’s unbearable physical and psychological suffering at the time of his death resulted from the injuries that were inflicted upon him by the defendant. But for those injuries and the suffering they caused, the victim would not have requested euthanasia, nor would or could his doctors lawfully have carried it out.
The court considered whether the acts of the victim and his doctors were such as to break the chain of causation. The court considered the line of authority, including Smith [1959] 2 Q.B. 35 , Blaue [1975] 1 WLR 1411 , Malcharek [1981] 1 WLR 690, [1981] 2 All ER 422, CA and Williams and Davis [1992] Crim. LR 19, in which the foreseeability of the conduct or act which in fact ended the victim’s life was examined; the test was one of reasonable foreseeability which could be gauged in the context of the characteristics of the victim and the circumstances in which he had been placed by the defendant. By contrast, in Dear [1996] Crim. LR 595, the intervening act was said to be the suicide of the victim, motivated by the horrific facial injuries he had sustained at the hand of the defendant. As noted by Professor John Smith in his commentary on Dear, it was apparently regarded as immaterial by the court that the conduct of the victim in choosing to kill himself was unforeseeable.
Turning specifically to whether there was a break in the chain of causation in respect of the death of Mr van Dongen, the court in Wallace held that the acts of the victim and his doctors were not random, extraneous events, or acts unconnected with the fault element of the defendant’s conduct. Rather, they were inextricably bound up with it. It could not be said that these were discrete acts, independent of the defendant’s conduct. The victim’s acts were not the product of the sort of free and unfettered volition which is presupposed by the novus actus principle.
The connection between the inflicted injuries and death in Mr van Dongen’s case was direct and discernible. It was not blurred by any pre-existing suicidal tendency on the part of the victim, or by any pre-existing physical or mental condition. Despite the fact the victim could have remained alive, he continued to suffer severe physical and psychological effects from those injuries. His position could not realistically be equated with that of someone in a more conventional case, a stabbing for example, whose wounds had healed or nearly healed.
An apparent conflict thus emerges, between the autonomy of an individual in choosing to act in a particular way and the principle of reasonable foreseeability. As the court observed in Wallace, informed adults of sound mind are regarded in law as autonomous beings, able to make their own decisions about how they would act and a defendant may not be held responsible for the deliberate act of such a person.
An apparent conflict thus emerges, between the autonomy of an individual in choosing to act in a particular way and the principle of reasonable foreseeability
Although the facts of Wallace are most unusual, the judgment is valuable for the opportunity it provides to consider the boundaries of Lord Bingham’s seminal judgment in Kennedy (No 2) [2007] UKHL 38. It will be recalled that in Kennedy (No 2) Lord Bingham, speaking for a unanimous House of Lords, held that the free, informed and voluntary decision of the victim in injecting himself with heroin, broke the chain of causation between the defendant’s unlawful act in supplying heroin and the victim’s death of an overdose after self-administering that drug. The defendant had not ‘caused’ the administration of the heroin because the deceased had, knowing what he was doing, chosen freely and voluntarily to inject himself with the drug.
On the face of it, Kennedy is difficult to reconcile with Wallace. In both cases, the victim acted autonomously and voluntarily. Given that Mr van Dongen could only be euthanised in accordance with Belgian law if his doctors concluded that his request was voluntary, this could suggest that, applying Kennedy (No 2), the Court of Appeal ought to have concluded that there was a break in the chain of causation.
Can it be said, in any event, that the conduct of a heroin addict in self-injecting heroin is truly voluntary? The death of an addict from a drug overdose is reasonably foreseeable and addiction to drugs may erode autonomy to the point where the addict’s actions in injecting drugs provided by an accused cannot be said to be an independent action breaking the chain of causation set in motion by the accused’s unlawful act in supplying the drugs.
As Professors Hart and Honoré recognised in Causation in the Law, which was cited by Sharp LJ, voluntariness is, however, a malleable concept. The House of Lords in Kennedy (No 2) did not specify a threshold of volition below which the victim’s conduct can no longer be described as being truly voluntary, which would perhaps suggest that it understood voluntariness in quite broad terms.
Sharp LJ’s understanding in the instant case was narrower, however, and arguably more nuanced. Her ladyship held that the applicable principles of causation presuppose the existence of free and unfettered volition. As the victim’s decision to be euthanised was a direct response to the injuries inflicted by the defendant and the circumstances created for them for which she was responsible, it was held that a jury could conclude that his actions were not truly voluntary.
It is submitted that this understanding of voluntariness is to be welcomed. Whilst Lord Bingham was undoubtedly correct to say that the criminal law assumes the existence of autonomy and free will, it would be undesirable to understand these concepts in unduly shallow terms. The court’s conclusion that the victim’s decision to be euthanised was not the product of unfettered volition must surely be correct.
Whilst the example of the heroin addict may not be as obvious as Lord Bingham’s judgment in Kennedy (No 2) would suggest, it is submitted that Sharp LJ’s conclusion – that Mr van Dongen’s decision to be euthanised could not be characterised as the conduct of a truly autonomous individual – is unassailable. It is interesting to note, however, that in the event, the jury chose to acquit Ms Wallace of murder.
