Kennedy and Unlawful Act Manslaughter: An Unorthodox Application of the Doctrine of Causation
| Author | Lisa Cherkassky |
| Published date | 01 October 2008 |
| Date | 01 October 2008 |
| DOI | http://doi.org/10.1350/jcla.2008.72.5.524 |
| Subject Matter | Article |
Kennedy and Unlawful Act
Manslaughter: An Unorthodox
Application of the Doctrine of
Causation
Lisa Cherkassky*
Abstract The decision of the House of Lords in R vKennedy (No. 2)1was
welcomed by many academics as a return to the traditional application of
causation. The victim in Kennedy was found to have broken the chain of
causation between himself and his drug supplier when he self-injected
with an already prepared syringe and produced his own death. However,
on a careful examination of the law, can the rationale behind Kennedy be
supported? This article explores Kennedy’s unconventional relationship
with the doctrine of causation and casts a critical eye over the application
of the doctrine in ‘fright and flight’ and ‘victim’ cases. There appears to be
no correlation between the judgment in Kennedy and the well-established
causal principles of foreseeability and novus actus interveniens in the crim-
inal law. Will Kennedy end up being another Environment Agency vEmpress
Car Co. Ltd?2
Keywords Causation; Self-injection; Novus actus interveniens; Sup-
ply of drugs; Unlawful act manslaughter
Unlawful act manslaughter is renowned for criminalising consequences
which were never intended or even foreseen by the defendant,3but the
doctrine of causation has not been applied consistently in recent times.
The approach to causation may depend on the particular unlawful act
used at trial,4and there appears to be a particularly inconsistent applica-
tion of causation in Rv Kennedy (No. 2), Rv Carey5and Rv Dhaliwal,6all
of which involved an unlawful act so trivial in nature7that the principles
of causation and foreseeability were almost impossible to apply in a way
that would be analogous to well-established cases. Where did the courts
* Lecturer in Law, Bradford University School of Law; e-mail
L.Cherkassky@bradford.ac.uk.
1 [2007] UKHL 38, [2007] 3 WLR 612.
2 [1999] 2 AC 22.
3 A view shared by D. Ormerod, comment on R vCarey [2006] Crim LR 842 at 846.
4 As seen particularly in R v Kennedy (No. 2) [2007] UKHL 38, [2007] 3 WLR 612. A
supply of prepared heroin led to the death of a user, but it was unlikely that the
House of Lords would deviate from previous drug-abuse cases and hold the
appellant responsible for the victim’s decision to inject. Other cases of a similar
nature include: R v Kennedy (No. 1) [1999] Crim LR 65, R v Richards [2002] EWCA
Crim 3175, R v Dias [2002] 2 Cr App R 96, R v Rogers [2003] 2 Cr App R 160, R v
Finlay [2004] EWCA Crim 3868, historically, R v Cato (1976) 62 Cr App R 41, and
R v Dalby [1982] 1 WLR 425.
5 [2006] EWCA Crim 17.
6 [2006] 2 Cr App R 24.
7 Or, to put it more fairly, small in significance and culpability compared to the end
result.
387The Journal of Criminal Law (2008) 72 JCL 387–408
doi:1350/jcla.2008.72.5.524
in these cases go wrong and what should the courts have applied? More
importantly, what is the outcome of these inconsistent authorities?
General principles of causation should be explored. Factual causation
is easily met and merely acts as a filter, narrowing down the possible
legal causes of death. R v Dalloway8held that it must be shown that had
the defendant acted lawfully, the harm would not have occurred.9Legal
causation is much stricter, requiring an operating and substantial cause
of death arising from several different factors.10 A ‘substantial cause’
may contribute to the end result to a ‘significant extent’11 and must be
‘more than insubstantial or insignificant’ contribution.12 Goff LJ in R v
Pagett13 stated that it is usually enough to direct a jury simply that in law
the accused’s act need not be the sole cause, or even the main cause, of
the victim’s death, it being enough that his act contributed significantly
to that result. An ‘operating cause’ requires much tighter proof that the
victim’s injuries flow directly from the defendant’s act. The popular way
to disprove that one’s actions are not an operating cause of the harm
suffered is to claim that a novus actus interveniens broke the chain of
causation.14 Rv Smith15 provides good authority that only if the second
cause is so overwhelming as to make the original wound merely a part
of the history can it be said that the death does not flow from the
wound.16 Thus, a second act or injury must overtake the first as the main
and independent cause of death and there is an underlying assumption
that the defendant has no clue that the second cause is forthcoming. To
add to this a few years later, Lord Steyn in Rv Latif17 said:
The general principle is that the free, deliberate and informed intervention
of a second person, who intends to exploit the situation created by the first,
but is not acting in concert with him, is held to relieve the first actor of
criminal responsibility.18
It can be taken from Latif at this point that only when a second cause is
free from the first cause and a deliberate intervention of another person
can it be said to break the chain of causation. This significant quote from
Lord Steyn will be returned to later. Taking these general causation
principles forward, Rafferty (in detail below) applied them clearly and
correctly, but other recent cases have not been so consistent.
8 (1847) 2 Cox CC 273.
9 Also see Rv White [1910] 2 KB 124 where ‘but for’ the defendant’s actions the
victim would still have died.
10 See Rv Mellor (Gavin Thomas) [1996] 2 Cr App R 245.
11 See Beldam LJ in Rv Cheshire [1991] 3 All ER 670. This does not include a ‘slight
or trifling link’ as in Rv Kimsey [1996] Crim LR 35.
12 Rv Cato [1976] 1 All ER 260, per Lord Widgery CJ.
13 (1983) 76 Cr App R 279.
14 The Latin term ‘novus actus interveniens’ was explained by Goff LJ in R v Pagett
(1983) 76 Cr App R 279 at 291: ‘. . . there has not merely been an intervening act
of another person, but an act that was so independent of the act of the accused
that it should be regarded in law as the cause of the victim’s death’.
15 [1959] 2 QB 35.
16 Ibid. at 42–3, per Lord Parker.
17 [1996] 1 All ER 353.
18 Ibid. at 364.
The Journal of Criminal Law
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