On 23rd May 2018, Berlinah Wallace was jailed for life, with a minimum term of twelve years, for a “sadistic and evil” acid attack on her ex-partner that left him so grossly disfigured that he saw no other recourse than euthanasia.
Sentenced by Justice Nicola Davies at Bristol Crown Court for applying a corrosive fluid with intent contrary to s.29 of the Offences Against the Persons Act 1861, the conviction marked the end of a protracted and undoubtedly emotional period, one dominated by media attention from start to finish.
Back in September 2016, Ms Wallace threw sulphuric acid over her ex-partner, Mark van Dongen, intending to “burn, disfigure, and disable” him, having learned of his new relationship with another woman. The consequence of such a nefarious and callous act was that Mr van Dongen suffered burns covering 25 per cent of his body.
In total, he spent eleven months recuperating in an Intensive Care Unit. Whilst procedures were taking place, his left leg had to be amputated. He became blind in his left eye as a result of the attack, and there was damage caused to the sight in his right eye. Alongside this were various other injuries incurred to his bodily systems, most devastatingly the development of Critical Illness Neuropathy, meaning that when he was discharged in November 2016, he was paralysed from the neck down.
All of these tragic consequences of the initial attack by Ms Wallace meant that Mr van Dongen felt unable to continue living with the psychological and physical damage he had suffered. Consequently, he voluntarily ended his life via euthanasia in Belgium in January 2017.
This background information, and the reasons for Mr van Dongen’s effective suicide, are of critical importance to the legal issues which arose within the prosecution of Berlinah Wallace. Initially charged with the aforementioned offence, this charge was scaled up to murder after Mr van Dongen’s suicide, on February 3rd 2017. By November, Mrs Justice May had dismissed the murder charge, and as a result of the prosecution appealing to the Court of Appeal, the jury from the first murder trial were dismissed.
All of these tragic consequences of the initial attack by Wallace meant that Mr van Dongen felt unable to continue living with the psychological and physical damage he had suffered.
In March this year the Court of Appeal, in what has been deemed a landmark decision for causation in homicide offences, ruled that the charge of murder could remain, albeit, the issues of causation would nevertheless have to be satisfied as well as that of intention.
Whilst Wallace was acquitted of murder last week, she was convicted of the s.29 offence. Nevertheless, the case itself has raised major questions about the role of legal causation in homicide offences, and whether scenarios similar to the one in this instance, could theoretically in the future lead to a murder conviction.
Pushing aside intention, which again raises important questions regarding murder specifically, in order for causation to be established, both causation in fact and in law must be proved. The leading case for sine qua non causation, also labelled the ‘but for’ test, is White . Additionally, the result must have been a consequence of an original, culpable act: Dalloway (1847). In this respect, factual causation is thus satisfied.
More complicated is the issue of legal causation. For legal causation to be satisfied, the de minimis rule must also be satisfied. The first difficulty is demonstrating this; the defendant’s act or omission need not be the sole cause (Benge (1865)) but must be an ‘operating and substantial cause’ of the death of the victim (Smith ) which is ‘something more than a slight or trifling link’ (Kinsey ). In this respect, the question had to be asked whether the original act (the acid attack) ‘contributed significantly’ (Pagett (1983)) to the eventual outcome, that is, death.
The case itself has raised major questions about the role of legal causation in homicide offences
Another issue to consider is that Mr van Dongen’s voluntary decision to end his life could be regarded in the legal field as a novus actus interveniens – an act capable of breaking the chain of causation, thus preventing the defendant’s liability for the ultimate consequence. When the victim interferes, the chain of causation linking the defendant with the act or omission of the victim will only be broken when is arises from a ‘free, deliberate, and informed’ decision made by the victim (Kennedy (No 2) ). In Dear , the victim re-opened their wounds intentionally, which priorly had been deemed non-life threatening, and subsequently died. It was held that Dear caused the death of the victim, despite the voluntary suicide. The act of the victim could not be classified as a supervening event sufficient to break the chain of causation.
Whilst the case of Dhaliwal  concluded that the defendant was not guilty of manslaughter, the Court of Appeal held that if physical and mental harm inflicted by the defendant drives the victim to suicide, then the defendant can in effect be guilty of manslaughter. Where the case for manslaughter fell down however, as it did in Wallace, was that there was no interference with the physical wounds leading to death, as there was Dear. It is a complicated nuance to distinguish, and one that can lead to absurdities.
What the Court of Appeal did back in March was to permit the pursuit of a murder conviction. Causation, according to the Court of Appeal, could be searched for, even though ostensibly there appeared to be a somewhat dubious finding of legal causation. Satisfying it, however, is an altogether different issue. Nevertheless, what has now been accepted, though originally blurred, is beginning to clear, and form a distinctive shape.
If physical and mental harm inflicted by the defendant drives the victim to suicide, then the defendant can in effect be guilty of manslaughter
Williams & Davis  posited the question in causation concerning the conduct of the victim as a result of the defendant’s actions: what was in the range of responses which might be expected from the victim in the relevant circumstances? Though complicated in matters of murder, Roberts  illustrated that in contexts where the victim’s actions came as a natural result of the defendant’s actions, it is irrelevant whether they foresaw the result, so long as the victim’s actions were not daft.
Could one comfortably say that committing suicide as a result of the crippling debilitation of one’s body and mind is a daft decision to make? Especially in the knowledge that said debilitation was as a result of the deliberate, vindictive actions of another. This gives genuine credence for the argument that in the Wallace case, causation could very well have been satisfied, leading to a conviction for unlawful act manslaughter, if not murder.
It appears that within the case, the prosecution for a homicide offence fell through on the fact the physical wounds inflicted did not cause the death of Mr van Dongen. The psychological implications of the act by Wallace, we could argue, did. In this respect, this case followed the case law laid out by both Dear and Dhaliwal. Nevertheless, there is a growing possibility that such psychological injury which culminates in suicide could establish causation. This case will undoubtedly fan the flames of academic debate, and even possibly lead to a change in the law in the future.
Whilst many will say that the sentence of 12 years imprisonment appears too lenient for such a malevolent crime, the very minimum which we can say, is that however slowly it may be, the law is moving in the right direction. Let’s just hope it hurries up to ensure much deserved justice in the future.