Variations on a theme of causation: Blameworthiness, voluntarism and consent in intimate partner homicide

Whilst the principles of causation have a pivotal role in determining liability, an array of factors influence outcomes. In most cases, factual causation is easily established where A kills or wounds B. Legal causation is much more problematic and especially where multiple factors are likely involved, creating challenges for determination of the proximate cause. Whilst statutory construction driven by social policy considerations affords a specific interpretation with regard to what is ‘sufficient in law’ for certain offences, judicial decision-making is heavily context specific and leads to further inconsistency. The CPS, in considering all these aspects, act as gatekeepers as the predilection to bring particular charges or none at all is determined by the ‘reasonable prospect of conviction’ test in weighing the factors for and against prosecution. The reasonable-prospect-of-conviction test in some circumstances may work contrary to or outside the evidential test and is even more heavily context specific as prosecutors’ decisions are heavily influenced by likely jury outcomes. This collective fluidity and uncertainty produces some concerning results, particularly where death arises. For example, in sexual and violent assault cases resulting in death where causation is complicated by several factors, the prosecution, much to the bemusement of the deceased’s family, may accept a defence plea to gross negligence manslaughter where uncertainty of jury outcome is the most vulnerable. Cases of R v Broadhurst and Warren Coulton, amongst others in the UK, and cases in other jurisdictions where women intimate partners have died are examined. Determination of causation and therefore offender liability is thwarted, arising from the difficulty in establishing with certainty the operative and substantial cause in acts or omissions. Consideration will also be given to the likely construction by the jury of the fault of the deceased in the creation of a dangerous situation and to the latitude the defence may have and its impact on the jury in making imputations on the deceased’s character and responsibility for the demi