Considering Causation in Criminal Law

Abstract

According to the dominant view, causation in criminal law is a bifurcated test consisting of cause in fact and proximate causation. In the first section of this article the theoretical underpinnings of causation are explored, for instance concerning the underlying interrogations of causal questions in the law. In the second section, the traditional view on bifurcation is challenged, weaknesses are uncovered, and the shortcomings of counterfactual tests as a heuristic test for factual or ‘empirical’ causation are assessed. By reviewing R v Williams and R v Hughes, the third section of the article seeks to elucidate the nature of the causal requirement in law. It is suggested, that legal influences permeate the causal requirement in law to the extent that it is dominated by them. The article consequently concludes that the bifurcation needs to be rejected to better reflect the role of (empirical) causation in criminal law better.