Culpable Homicide and Drug Administration
| Published date | 01 June 2009 |
| Date | 01 June 2009 |
| Author | Alan Reed |
| DOI | 10.1350/jcla.2009.73.3.569 |
| Subject Matter | High Court of Justiciary |
High Court of Justiciary
Culpable Homicide and Drug Administration
Michael Kane vHM Advocate; Kevin MacAngus vHM Advocate [2009]
HCJAC 8, 2009 SLT 137
Keywords Reckless manslaughter; Drug supply; Causation; Foresee-
ability; Voluntary capacity
The first defendant, Kane, was charged with killing another by unlaw-
fully supplying her, and injecting her with diamorphine, a Class A drug,
resulting in her death. The facts were similar in the case of MacAngus,
other than that the victim had administered the drug injection himself,
and death had subsequently ensued. The drug in the latter scenario was
Ketamine, a Class C substance. At issue before the High Court of
Justiciary, sitting as the Court of Criminal Appeal in Scotland, was
whether, where a controlled drug was supplied to another, who then
administered it to himself causing his death, it was open to a jury to
convict the supplier of culpable homicide. The House of Lords, in R v
Kennedy (No. 2) [2007] UKHL 38, [2007] 4 All ER 1083, had recently
declared that the appellate court had fallen into error imposing liability
for unlawful act manslaughter against such a factual backdrop. D com-
mits an unlawful act in supplying the heroin, but this in itself is not
‘harmful’ to V unless administration transpires. It is the administration
which ‘causes’ death. The ‘free and voluntary’ self-administration by V,
an act to which freedom of choice applies, insulates D from liability for
unlawful act manslaughter. It is insufficient for liability within the
purview of English and Welsh law that D ‘facilitated or contributed’ to
the administration. In a sense D has merely provided the ‘backdrop’ for
V’s own act. It is only where D has ‘administered’ the drug that an
unlawful act under s. 23 of the Offences Against the Person Act 1861
(maliciously administering or causing to be administered a noxious
substance) is activated. It is not enough that D assists V, as in R v Rogers
[2003] EWCA Crim 945, [2003] 1 WLR 1374, by holding the tourniquet
around V’s arm. The supply of a controlled drug, per se, is not dangerous,
but the danger element is attached to the administration.
H
ELD
,
REFUSING THE APPEALS
, it was open to a jury to convict the
supplier of a drug ingested by the victim, of culpable homicide. In this
regard, contrary to the perspectives articulated by the House of Lords in
Kennedy (No. 2), a deliberate decision by the victim of the reckless
conduct to ingest the drug would not necessarily break the chain of
causation.
C
OMMENTARY
A fascinating judicial chasm has opened in Anglo-Scottish law vis-à-vis
inculpation of a drug supplier for manslaughter. Alternative pathways
have been set out on the fundamental issue of apposite causation
207The Journal of Criminal Law (2009) 73 JCL 207–211
doi:1350/jcla.2009.73.3.569
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