Apr 15, 2025
Causality and Adequacy in Criminal Law
In criminal law, the issue of causation plays a central role in a range of criminal statutes. While tort law typically requires causation between action and harm, the picture is more nuanced in criminal law. This article highlights the key issues surrounding causation and adequacy in criminal law, and explains how these concepts are applied in practice.
When is causation relevant in criminal law?
Not all criminal statutes require causation. Many statutes describe the criminal act in a different manner, for example, "appropriating" or "removing" an item (theft), "giving false testimony" or "using" a false document. Here, it is not necessary to establish a causal chain.
Causation, however, becomes a central topic when the law addresses physical injury to a person or property. The Criminal Code uses various expressions such as "cause", "inflict", "create", "kill", "cause harm", and "destroy" to describe this requirement of causation. The choice of expression, however, has little legal significance; it refers to the same form of connection that the law aims for.
The significance of causation in criminal law
The significance of whether causation exists varies depending on the nature of the crime:
In intentional crimes, causation determines whether the perpetrator should be punished for a completed crime or an attempt
In negligent crimes and other offenses where attempt is not punishable, causation becomes crucial for establishing criminal liability in its entirety
This differs from tort law, where the presence or absence of causation directly determines whether compensation is awarded. Other key differences are that the evidentiary requirements for causation are stricter in criminal law than in tort law.
The theory of conditions as a starting point
The common starting point for determining causation in Norwegian law is the theory of conditions. This theory is based on the principle that any necessary condition—any conditio sine qua non—is considered a cause.
To determine whether an action is the cause of a harmful consequence, the following question is asked: Would the consequence have occurred if the action had not been taken? Thus, a kind of differential calculation is performed, comparing the actual course of events with what would have happened if the action were absent.
The theory of conditions provides a good starting point for delimiting responsibility, but the formula cannot be used without explanations and modifications. The decision often has to be made through a discretionary assessment, where there may reasonably be a difference of opinion about the solution to the individual case.
Only one perpetrator
When applying the theory of conditions where there is only one perpetrator, the following situations may be encountered:
If the action is imagined away, the damage would have been entirely absent
The damage would have occurred in exactly the same way regardless
The damage would have occurred at another time, in another place, or in another way
In the first two cases, the assessment is straightforward: In case 1, causation exists; in case 2, it does not. The third case raises more complex questions.
The general rule is that any significant change in terms of time, place, or manner is considered sufficient to establish causation. It does not help if the perpetrator can prove that other causes would have intervened if he had not acted.
For example:
The person who shoots a traveler on the way to the airport is responsible for murder even if the plane the victim was to board later crashes and all passengers perish
The person who sets a house on fire has undoubtedly destroyed or damaged it, even if it is clear that the house would have burned down anyway for other reasons
However, it may be that the change caused by the action is so minor that it is not natural to assign it legal significance. If a mistake by the doctor or nurse shortens a dying person's life by a few minutes, it will usually not be natural to punish for negligent homicide. Conversely, if the acceleration is significant, it cannot relieve liability that death was unavoidable.
Multiple perpetrators
When multiple perpetrators could be responsible for the same damage, the application of the theory of conditions becomes more complicated.
Cases of joint action
When multiple actors have acted jointly, for example where several persons together have assaulted and injured a person, all are liable, even if one alone could have inflicted the injury. This follows from the fact that the action is seen as a collective act for which all participants are responsible.
Independent actions
Even without deliberate cooperation, situations arise where the theory of conditions is insufficient. Three main types can be identified:
Collision of independently acting causes: Two independent actions, each by itself sufficient to cause the injury, operate simultaneously. For example, both A and B, independently, give the victim a lethal dose of poison.
Surplus causes: Several causal factors work together, and although none alone would have been sufficient, there are more than necessary. For example, if five grams of poison are required to kill, and three people independently give the victim three grams each.
Combination of sufficient and insufficient cause: Two causes operate together; one alone could have caused the injury, the other could not. For example, if five grams of poison are needed, and one person gives six grams while another gives three grams.
In all these cases, strict application of the theory of conditions would lead to unreasonable results. Both fairness considerations and practical concerns argue that all perpetrators should be held responsible, even if the condition criterion is not met for each individual.
Adequacy: Limitation of the causation doctrine
Even when causation is present, it does not automatically mean responsibility extends as far as causation. Here, the doctrine of adequacy serves as an important limitation.
The adequacy doctrine can be divided into two main requirements:
The action must have general harm-inducing capacity: The action must pose a certain risk of harm.
The risk must have realized itself in a reasonably normal manner: The sequence of events must not be too unforeseeable or extraordinary.
General harm-inducing capacity
The requirement of harm-inducing capacity has little significance as an independent liability condition in criminal law. This is because the prerequisite for liability is already an illegal act and subjective fault (intention or negligence).
However, the requirement does take on significance for crimes where the penalty is increased due to unintentional consequences, such as bodily harm resulting in death or serious injury. According to section 43 of the Criminal Code, the aggravated penalty only applies where the perpetrator "could have foreseen the possibility of such a consequence".
Unforeseeable sequence of events
A central question is whether liability encompasses injuries that occur in an unusual and unforeseeable manner. For example:
A shoots at B to kill him, misses, but B suffers heart failure from fright and dies
A engages in blasting operations in a grossly negligent manner, B suffers a minor scratch from a stone chip, but dies because he has hemophilia
Generally, such deviations between the actual and probable sequence of events do not exempt from liability. If A has attempted to take B's life and has succeeded, it is difficult to see any reason why he should avoid a murder charge because the intervening steps did not match the expectations.
Cases where liability is still limited
Liability is, however, limited in the following situations:
The harm has no connection with the dangerous qualities of the action: For example, where a coachman falls asleep and the horse takes a wrong turn, the traveler is then killed by a lightning strike. Here, the accident has no connection with the dangerousness of the action.
Remote and indirect connection: Even if there is some connection, liability can be limited when the harm is remote and indirect, especially when:
Time has passed since the harmful action
The situation has stabilized
A new independent cause intervenes
For example: A strikes B on the head with an axe. B survives, but suffers permanent hearing loss. Later, B is hit and killed in an accident because he could not hear the car horn. Here, A will likely only be convicted of attempted murder, not completed murder.
The requirement of adequacy as a safety valve
The adequacy requirement acts as a safety valve, allowing for the exclusion of liability the judge does not find reasonable. In the decision, not only will foreseeability be considered significant, but also other circumstances, such as:
The degree of fault
The closeness of the causal connection
The nature of the accompanying circumstances
Conclusion
Causation and adequacy are important elements in the doctrine of criminal law. The theory of conditions provides a good starting point, but must be supplemented with adequacy considerations to avoid unreasonable results. The adequacy doctrine serves as a limitation of responsibility to reasonable and foreseeable consequences.
The central question is always what constitutes a reasonable interpretation of the law's requirement for causation in each specific criminal statute. Liability does not extend to overly remote and unforeseeable consequences, even if there is a factual causation.
