R v Cato
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 15 October 1975 |
| Judgment citation (vLex) | [1975] EWCA Crim J1015-1 |
| Docket Number | No. 2978/R/75 No. 3176/R/75 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 October 1975 |
[1975] EWCA Crim J1015-1
The Lord Chief Justice of England (Lord Widgery)
Mr. Justice O'Connor
and
Mr. Justice Jupp
No. 2978/R/75
No. 3175/R/75
No. 3176/R/75
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. L. J. BLOM-COOPER, Q.C. and MR. G. R. ROBERTSON appeared on behalf of the Appellant Cato.
MR. A. ANSELL appeared on behalf of the Applicants Morris and Dudley.
MR. D. JEFFREYS appeared on behalf of the Crown.
Following a trial at St. Albans Crown Court in June of this year the following sentences were imposed upon the Appellant Cato and the Applicants Morris and Dudley in respect of counts in the indictment. First of all, Cato was sentenced to four years' imprisonment on count 1 for manslaughter of Anthony Farmer. He was also sentenced to four years concurrent on a charge under section 23 of the Offences against the Person Act, 1861 of administering a noxious thing. The other two Applicants Morris and Dudley were not concerned with the manslaughter charge directly. Their offences were of assisting Cato in what might be described as a "cover-up" of the death of Farmer. In respect of those offences Morris was sentenced to Borstal training and Dudley to two years' imprisonment, but in respect of each of them a condition precedent to it was the conviction of Cato on the manslaughter charge or the charge under section 23. Unless that could be established, then the offences charged against Morris and Dudley did not arise.
Equally, it is accepted by their Counsel that if the conviction of Cato for manslaughter or administering a noxious thing is upheld, then Dudley and Morris have nothing further to say in regard to their conviction in this case. Thus, nearly everything in regard to guilt or innocence revolves around the conviction of Cato of manslaughter.
The victim, as I have said, was a young man called Anthony Farmer. The events leading up to his death occurred on the 25th July, 1974. On that day Cato and Farmer had been in each other's company for most of the day. The evidence suggests certain intervals when they were apart, but by and large they seem to have been together all that day, and they spent much of the day with Morris and Dudley as well. All four of them at that time were living at a house called No. 34 Russell Street, and on the 25th July their activities brought them to the Crown public house where they were until closing time, and after closing time they went back to No. 34 Russell Street.
There were others living in the house. They went to bed, and the four (that is to say Cato, Morris, Dudley and the deceased Farmer) remained downstairs for a time. The moment came when Farmer produced a bag of white powder and some syringes and invited the others to have a "fix" with him; and so they did. The white powder was put in its bag on the mantelpiece, the syringes were distributed amongst the four who were to participate, and the procedure which they adopted (which may or may not be a common one) was to pair off so that each could do the actual act of injection into the other half of his pair. Following this procedure Morris and Dudley paired off together and so did Cato and Farmer (the deceased). All four had a number of injections following this procedure, but the time came when Dudley and Morris went to bed, leaving Cato and Farmer downstairs in the sitting room. Cato and Farmer continued to give each other these injections from time to time right through the night.
The actual method, which I have probably described sufficiently already, may deserve a moment's repetition because so much hinges upon it. The method, as I have already indicated, was that each would take his own syringe. He would fill it to his own taste with whatever mixture of powder and water he thought proper. He would then give his syringe to the other half of his pair – in this case Farmer would give his syringe to Cato – and the other half of the pair would conduct the actual act of injection. It is important to notice that the strength of the mixture to be used was entirely dictated by the person who was to receive it because he prepared his own syringe; but it is also to be noticed that the actual act of injection was done by the other half of the pair, which of course has a very important influence on this case when one comes to causation.
When the following morning came Farmer and Cato were still downstairs. They were apparently fast asleep, although everybody thought they were well enough at 8 o'clock in the morning when they were seen. But as the next hour or two passed it became apparent that they were both in difficulties. Cato indeed was having difficulty in breathing, and probably his life was saved only because somebody gave him some rudimentary first aid. No-one was able to do the same for Farmer, and by 11 o'clock Farmer was dead, and the cause of death was that his respiratory system ceased to function consequent upon intoxication from drugs.
When it was discovered Farmer was dead steps were taken to try and cover up by the two Applicants Morris and Dudley, and I need not deal with them in detail at this stage. But in the end the full story came out and the charges to which I have already referred were brought against these three men in consequence of those actions.
At the trial there was quite a volume of expert evidence. First, there was a pathologist who conducted the elementary, if I may say so, and preliminary examination of the body and discovered there was insufficient evidence of natural disease to account for death and that an autopsy would be necessary. Then there was other further and detailed investigation of specimens of various parts of the body which showed (I am concentrating this quite a lot) a quantity of morphine in the body consistent with the injections of heroin which had been taken, according to their confessions, through the night. But it was noteworthy, so the expert said, that there was no morphine in the blood – a pointer, as we understand it, to a longer interval between the injection and the death than would have appeared to have occurred having regard to the recital of the facts that I have given. Furthermore, a Dr. Robinson, who was called on behalf of the defence, strongly made the point that there was not enough morphine visibly present in the samples to account for death because it was not a fatal dose. She had not seen the samples or worked on them herself because she had come into the case later than that, but she clearly took the view that although there was morphine in the body, and although the morphine may have contributed to the death, it was not exclusively responsible for it because there was, as she said, a missing factor; and she concluded that there was a missing factor because in her view the size of the dose received by the deceased Farmer was insufficient to cause death.
The learned Judge left the manslaughter charge to the jury on the two alternative bases which the Crown had suggested, and it will be appreciated at once what they were. The first alternative was that the death was caused by the injection and the consequent intrusion of morphine into the body, and that was an unlawful act so that the killing was the result of an unlawful act and manslaughter on that footing. Alternatively, it was said that a verdict of guilty would be justified on the footing that there had been no unlawful act, but that the injection of heroin had been done with recklessness or gross negligence, which of course would be sufficient to sustain the conviction of manslaughter.
The learned Judge at page 12 put it this way: "Now, manslaughter in law is causing or contributing to the causing or accelerating (that is the hastening on) the death of a human being quite inadvertently by doing an unlawful and dangerous act, or, alternatively, by doing a lawful act with gross negligence, that is to say, recklessly." He gets the alternatives there perfectly well.
He says at the bottom of the page: "The consent of the victim is quite immaterial, quite irrelevant, just as it is in the not uncommon case of manslaughter, such as in the next case I have to try".
Further on the next page he says: "The Prosecution say here that this was manslaughter in either of two ways, that is to say, either death was caused, although quite inadvertently, by an unlawful and dangerous act, or, alternatively, by doing an act with gross negligence, recklessly".
In amplification of that direction, which is repeated more than once, the learned Judge quite early in the course of his summing-up handed to the jury six questions which he had written out for their consideration, and he told the jury that they should ask themselves these six questions, and that if they answered "yes" to all of them, then the verdict should be guilty.
These were the questions in their original version: "(1) Did Cato take possession of some heroin in a syringe and then inject the contents of the syringe into Anthony Farmer? (2) Did such injection by Cato endanger the life of Anthony Farmer? (3) Did the injection of heroin by Cato contribute to or accelerate the death of Anthony Farmer? (4) Was the heroin so injected likely to do harm to Anthony Farmer, although not necessarily serious harm? (5) Did Cato realise (a) that it was unlawful for him or Farmer to be in possession of heroin; (b) that heroin was likely, if injected, to do some harm to the deceased Anthony Farmer?" The sixth question was introduced by a statement of the learned Judge that this was a slightly fresh question because it dealt with the other approach to the case suggested by the prosecution: "Was the...
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