Rethinking Causation in English Criminal Law

Abstract

This article challenges English criminal law's approach to causation. In doing so, it proposes replacing the standard tests of causation with a single test, known as ‘INUS’ causation – where a cause is an insufficient but necessary part of an unnecessary but sufficient condition. It argues that the standard tests represent a normative exercise in finding the defendant (D) responsible for a prohibited outcome, often grounded only in D's moral responsibility for that outcome. This approach is problematic because moral responsibility is irrelevant to causal responsibility; and not distinguishing causal responsibility from moral responsibility results in inappropriate criminal-responsibility ascription for result crimes. INUS would provide a single, non-normative test of causation; a metaphysical one that offers a robust causal enquiry that focuses only on causal responsibility, which contributes appropriately to criminal-responsibility ascription. INUS would also yield practical benefits. It would be able to engage with causal enquires in a broader range of cases on a more principled, clear and consistent basis.