R v Pagett [1983] EWCA Crim 1

Pagett used his pregnant girlfriend as a human shield while firing at armed police. Officers lawfully returned fire and killed her. The Court of Appeal held he had legally caused her death and upheld his manslaughter conviction, clarifying causation where third parties act in self-defence or legal duty.

Facts

The appellant, David Keith Pagett, was separated from his wife and in a relationship with 16-year-old Gail Kinchen, who was six months pregnant by him. After domestic disputes, Gail returned to live with her mother and stepfather, Mr and Mrs Wood, in Birmingham.

On 11 June 1980, Pagett armed himself with his brother’s shotgun and cartridges, drove to the Woods’ home and confronted Mr Wood at the door with the gun at an angle of about 45°. He said:

“Now try your commando tricks. “

Mr Wood fled through the house into the garden. Pagett followed, aimed at Mr Wood; Mrs Wood knocked the gun upwards, heard a bang, and was then struck on the head with the gun. As Mr Wood climbed over the garden fence, Pagett fired and shot him in the rear left thigh, later requiring removal of over 100 pellets.

Pagett then forced Mrs Wood away at gunpoint, demanding to know Gail’s whereabouts, and took her by car to a flat where Gail was visiting a friend. Inside, he lined people up with the shotgun, assaulted Gail and Mrs Wood (causing Mrs Wood fractured or cracked ribs) and took Gail away with him.

Pagett drove off with Mrs Wood in the front passenger seat and Gail on her lap, repeatedly hitting Gail. A police car, whose officers were looking for an armed man after the earlier shooting, drew alongside. Gail signalled to them; Pagett threatened to kill both women. Mrs Wood was forced out of the car; the officers got out of their vehicle, and Pagett threatened them, shouting:

“Back off. I am going to shoot you. “

The officers took cover and Pagett drove away with Gail.

Police followed to Deelands Road, where Pagett stopped, got out carrying the shotgun and forced Gail in front of him towards a block of flats at 21 Deelands Road. Gesturing at police with the gun, he said:

“One more step pal, and I will let you have it. “

He took Gail into his first-floor flat, number 4. Several police cars with headlights lit parked about 250 yards away. Via loudhailer, officers called on Pagett to surrender his gun and come out. He threatened to shoot both the police and Gail unless lights were turned off and stated he would not come out alive, would shoot Gail and himself, and that he would get 17 years if captured. He fired twice at the police cars; some officers were hit by pellets but not injured. Gail cried out:

“Please move or he will shoot me. “

Specialist armed police and hostage-trained officers arrived and were deployed at the entrance, rear, and inside the common staircase. Detective Sergeant Sartain and Detective Constable Richards entered the building to contain Pagett, and repeatedly called on him to surrender.

Shortly before 2 a.m., Pagett brought Gail onto the rear balcony, his right arm with the gun around her waist and his left arm around her neck. He shouted that police must leave or he would shoot, and that if they did not leave he would kill her. Gail screamed:

“Get back or he will kill me. “

Police warned that he was surrounded by armed officers and should come out. He retreated back into the flat with Gail.

On the first-floor landing outside flats 3 and 4, Sartain and Richards took position. It was dark; the stairway had only one light at the ground floor rear. Police covered the peephole to flat 4. The door was unlocked and opened briefly; a shotgun barrel protruded. Sartain shouted that they were armed; the door closed and re-opened. A woman’s shape (Gail) appeared with Pagett’s left arm around her neck and the shotgun in his right hand pointing at the officers. He ordered them downstairs; the officers repeatedly warned him they were armed and told him to stand still and drop the gun. Pagett advanced, pushing Gail in front of him.

The officers retreated to the top landing in near-total darkness. They heard Pagett threatening to kill them. He said to Gail:

“Talk to them, they don’t think I mean it. “

Gail screamed:

“he is going to kill me. “

Pagett shouted that they were testing him and he was going to show them. A figure appeared on the upper flight of stairs moving towards the officers. As Richards shouted for Pagett to stand still, Pagett fired his shotgun. Sartain fired two shots, Richards four; Pagett fired again; Richards then fired two further shots and Sartain one. The officers fired instinctively without taking particular aim. Gail shouted:

“You’ve shot me. You’ve shot me. “

When the shooting stopped, Sartain and Richards discovered Pagett on the floor at the landing corner with Gail on top of him; the shotgun lay nearby, and 13 unused cartridges were found in Pagett’s pocket. Gail had three bullet wounds, from which she later died. Pagett was uninjured by police shots; the officers were unharmed as Pagett’s shots struck the banister and ceiling. It was plain Pagett had been using Gail as a shield, though officers could not see this at the time.

Pagett dismissed his counsel at trial, called no evidence, and made a dock statement and closing speech. The jury convicted him of possession of a firearm with intent to endanger life, kidnapping Mrs Wood and Gail, attempted murder of Mr Wood, Sartain and Richards, and the manslaughter (but not the murder) of Gail. Concurrent sentences of 12 years’ imprisonment on each count were imposed.

The appeal before the Court of Appeal (Criminal Division) concerned only the manslaughter conviction in relation to Gail’s death.

Issues

Causation where the fatal act is by a third party

The core issue was whether Pagett could be said in law to have “caused” Gail’s death where the fatal bullets were fired not by him but by the police officers acting in self-defence and in the execution of their duty. This raised whether the officers’ actions constituted a novus actus interveniens, breaking the chain of causation.

Pagett’s counsel (Lord Gifford) advanced three grounds:

1. The judge wrongly directed that, as a matter of law, the jury must find that Pagett caused Gail’s death if satisfied of four factual matters, rather than leaving causation fully to the jury as a question of fact, applying a test such as “substantial” or “operative” cause.
2. Alternatively, if causation was for the judge as a matter of law, he should have held that Pagett did not cause Gail’s death because the immediate fatal act was by another person acting in legitimate self-defence, rendering the death too remote or indirect to be imputed to Pagett.
3. If the causation direction was correct, the judge erred in allowing an alternative verdict of manslaughter, as the requirement that Gail was used as a shield effectively required a mental element similar to that for murder.

Judgment

Rejection of the American authorities and policy-based limitation

The court reviewed United States decisions, particularly Commonwealth v. Almeida and Commonwealth v. Redline. In Redline, the Supreme Court of Pennsylvania had limited liability under the felony-murder rule where the fatal shot was fired by someone not acting in concert with the accused.

The court noted that the reasoning in Redline centred on the felony-murder doctrine, under which malice from the underlying felony is imputed to a killing. This doctrine, analogous to constructive malice, had been abolished in England by section 1 of the Homicide Act 1957. The court therefore held that these American authorities provided no guidance for English law on homicide causation and rejected the submission that English law should adopt a similar policy rule requiring that only the person who fires the fatal shot, or someone acting in concert with him, can be convicted of homicide.

The court emphasised that there was no English authority supporting such a policy limitation and no principled basis for it.

Principles of causation and novus actus interveniens

The court undertook a detailed discussion of causation in homicide, confining itself to crimes of violence and cases involving intervention by a third party. It observed that in most homicide cases causation directions are unnecessary, but when required it is common to direct juries that the accused’s act need not be the sole or main cause of death so long as it contributed significantly.

The court discussed the concept of novus actus interveniens as an intervening act of another person so independent of the accused’s conduct that it is regarded in law as the cause of death to the exclusion of the accused’s act. Referring to Hart and Honoré’s Causation in the Law, the court noted the suggested criterion that such intervention must be “free, deliberate and informed” to break the chain, while expressly confining its remarks to the immediate problem.

The court endorsed as a matter of law that the following types of conduct, when caused by the accused’s wrongful act, do not amount to a novus actus interveniens:

• A reasonable act of self-preservation by the victim (for example, attempting to escape), citing R v Pitts and R v Curley.
• A reasonable act of self-defence, which the court treated as a form of self-preservation.
• An act done in the execution of a legal duty, such as a police officer using reasonable force to prevent crime or arrest an offender, drawing an analogy with “rescue” cases in negligence and noting the requirement of reasonableness under section 3 of the Criminal Law Act 1967.

Such responses are not “voluntary” in the relevant sense, but are provoked by and dependent on the accused’s wrongful conduct. Where such acts cause death, they do not absolve the original wrongdoer from criminal responsibility. Whether the resulting liability is for murder or manslaughter will turn on whether the requisite mental element for each offence is proved.

Role of judge and jury in causation

The court then addressed whether causation is a question of law or fact. It acknowledged Professor Smith and Professor Hogan’s statement that whether a sine qua non act is a “cause” is a question of law, but considered both that and Lord Gifford’s contrary view (that it is purely factual) to be oversimplifications.

The court explained that, generally, causation is a question of fact for the jury. However, legal principles govern what constitutes causation, and judges must direct juries on these principles. Examples include the rule that the accused’s act need not be the sole or main cause and the “thin skull” principle applied in R v Blaue, where the court had stated:

“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. “

Similarly, in cases where victim or third-party conduct might constitute a novus actus interveniens, the judge should state the law simply and then leave the jury to decide the factual issues in light of those principles. The court distinguished this approach from DPP v Stonehouse, which held that a judge cannot direct that proved acts must as a matter of law amount to an attempt; here, explaining legal principles of causation and leaving the ultimate factual conclusion to the jury remained consistent with that decision.

Application to Pagett’s case

The trial judge had, after discussing with counsel, directed the jury on causation by specifying four factual matters they must be sure of before finding that Pagett caused Gail’s death. He stated:

“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. “

The Court of Appeal considered that, strictly, it was not for the judge “to decide” causation as a matter of law, but for him to state the legal principles and for the jury to reach their factual conclusion. However, in practical terms, the judge had done exactly that; his misstatement of roles was not material. Moreover, he had been “generous” to the appellant, requiring the jury to find both that Pagett fired first and thereby prompted the police firing, and that he used Gail as a shield. In the court’s view, either unlawful and dangerous act alone could have constituted the actus reus of manslaughter (or murder, if the necessary intent were proved) in causing Gail’s death.

The court therefore rejected the first and second grounds of appeal, holding that Pagett’s conduct legally caused Gail’s death and that the police officers’ reasonable acts of self-defence and duty did not break the chain of causation.

Mental element for murder and manslaughter

The court then considered the third ground, concerning the availability of manslaughter as an alternative verdict. The trial judge had directed the jury on murder using the definition founded on Hyam v DPP:

“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. “

He further explained intention in terms of willingness and foresight or knowledge of probability:

“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. “

As to manslaughter, the judge, drawing on DPP v Newbury, directed:

“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. “

The Court of Appeal affirmed that the mens rea for murder and manslaughter remained distinct. For murder, following Lord Hailsham’s analysis in Hyam v DPP, there must be a subjective intent aimed at someone, encompassing (i) intent to kill; (ii) intent to cause really serious bodily harm; or (iii) deliberate exposure of a potential victim to a known serious risk of death or grievous bodily harm. For manslaughter by unlawful and dangerous act, it is enough that the accused intentionally does an unlawful act which is objectively dangerous (as judged by sober and reasonable people) and which in fact causes death; there is no requirement that the accused knew the act was unlawful or dangerous.

Accordingly, even in the present circumstances, the jury could rationally conclude that Pagett lacked the subjective intent for murder while possessing the requisite mental element for manslaughter. The court considered that the trial judge would rightly have been criticised had he not left the manslaughter alternative, particularly as Pagett was unrepresented at the close of trial.

Implications

This decision is a leading authority on causation in criminal law. It confirms that a defendant can be held to have caused a death where third parties, responding reasonably in self-defence or in execution of legal duty, perform acts that physically inflict the fatal harm. Such responses are not treated as a novus actus interveniens breaking the chain of causation, provided they are reasonable and provoked by the accused’s wrongful conduct.

The case reinforces that those who use others as shields or precipitate armed confrontations with police may bear criminal responsibility for resulting deaths, even when the fatal shot is fired by someone else. It also clarifies the respective roles of judge and jury in causation issues, the operation of legal principles such as the “thin skull” rule, and the continuing distinction between the mental elements of murder and manslaughter.

Verdict: The Court of Appeal dismissed the appeal against conviction, upholding Pagett's conviction for the manslaughter of Gail Kinchen and the associated sentence.

Source: R v Pagett [1983] EWCA Crim 1