R v Dias (Fernando Augusto)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE |
| Judgment Date | 13 December 2001 |
| Neutral Citation | [2001] EWCA Crim 2986 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2001/03225/W1 |
| Date | 13 December 2001 |
[2001] EWCA Crim 2986
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Keene
Sir Richard Tucker and
His Honour Judge Maddison
(Sitting as a Judge of the Court of Appeal Criminal Division)
No. 2001/03225/W1
MR N RUMFITT QC appeared on behalf of THE APPELLANT
MR W COKER QC appeared on behalf of THE CROWN
Thursday 13 December 2001
This appeal raises a short but important point about the offence of manslaughter by an unlawful and dangerous act. On 23 May 2001, at Northampton Crown Court, before His Honour Judge Hall, the appellant was convicted by a majority verdict of ten to two of manslaughter, for which he was sentenced to three years imprisonment. He also pleaded guilty to a count of possession of a class A controlled drug, namely heroin, for which he was sentenced to one day's imprisonment to run concurrently. The total sentence therefore was three years' imprisonment. He now appeals against the conviction for manslaughter, the trial judge having granted a certificate in the following terms:
"Was I correct as a matter of law to direct the jury that it is unlawful for a man to inject heroin into himself?"
The facts of the case are not complicated or, sadly, uncommon. On 27 August 2000, Edward Escott died as a result of an injection of heroin. The only person with him was the appellant. They were both vagrants. They did not know each other well, but in July and August of that year they were living in, or associated with, a night shelter at Northampton. Mr Escott regularly abused drugs. Drugs other than heroin were found in his body, as was alcohol. However, although he smoked heroin, no one had seen him inject it. The appellant was a heroin addict who did inject the drug. The appellant did not give evidence at trial. When interviewed by the police he had said that he and Escott had agreed to put £5 each into a kitty. The appellant then contacted his dealer and bought a £10 bag of heroin. He and Escott then found a suitable place on the stairway of a block of flats. Using his own "kit", the appellant prepared the heroin injection by putting the powder into a spoon, adding the citric acid and water, heating it up and drawing it into the syringe. He then handed the syringe to Escott. Escott removed the belt from his own trousers, used it as a tourniquet and injected the heroin into himself. The appellant washed the syringe and injected the heroin into himself. By the time the appellant had recovered from the effects of the heroin, Escott was dying. The appellant arranged for a passer-by to call an ambulance and then left the scene. Escott was taken to hospital but died.
The prosecution did not originally accept this version of events. They argued that there was evidence from which it could properly be inferred that the appellant had injected Escott. However, the judge took the view that that was not sufficiently supported by the evidence and would be "guesswork". He left the case to the jury on the basis that Escott had injected himself with the heroin.
Although there were several possible bases relied on by the Crown for the manslaughter charge, the possibilities were narrowed down by the time the matter was left to the jury. The Crown had been running manslaughter by gross negligence, but the judge was not prepared to leave such a verdict open to the jury. The Crown had also relied on section 23 of the Offences against the Person Act 1861 which insofar as material provides:
"Whosoever shall unlawfully and maliciously administer to, or cause to be administered to or taken by any other person any poison, or other destructive or noxious thing, so as thereby to endanger the life of such person …. shall be guilty of an offence …."
The argument was that if the appellant's actions came within the terms of that section then they were unlawful and would support a verdict of unlawful and dangerous act manslaughter. However, the judge did not direct the jury that they should consider whether the appellant had "caused" the heroin to be administered to or taken by Escott or had otherwise administered it to him, and so it seems that the judge was not persuaded by the legal argument which had been advanced by the Crown to that effect. The direction actually given to the jury was in the following terms:
"…. manslaughter, is proved in this particular case if the prosecution satisfy you so that you are sure that the defendant assisted and deliberately encouraged Mr Escott to take the heroin."
That direction was repeated to the jury. That formulation is appropriate where someone is charged with aiding and abetting an offence. It would render him liable as the secondary party in circumstances where he does not cause the actus reus because the voluntary act of another intervenes.
The jury were told that there was no dispute that the heroin in the syringe was a cause of death. The direction given by the judge, which we have just quoted, was the result of a ruling made by him after extensive legal argument. He ruled that following the decision in R v Kennedy [1999] Crim LR 65, the self-injection by Escott of the heroin was itself an unlawful act. It followed that aiding and abetting such an offence would make the appellant criminally liable as a secondary party for that unlawful act which in turn had caused the death of Escott.
It will be observed that it was not contended that the manslaughter charge could properly be based merely on the supply of the heroin to Escott. Certainly that was not how the matter was left by the judge to the jury. That supply of heroin was undoubtedly unlawful, but the difficulty about relying on it as a basis for manslaughter would have been one of causation. Escott was an adult and able to decide for himself whether or not to inject the heroin. His own action in injecting himself might well have been seen as an intervening act between the supply of the drug by the appellant and the death of Escott. The chain of causation was probably broken by that intervening act. That was the interpretation placed on the case of R v Dalby (1982) 74 Cr App R 348 in the subsequent decision of this court in R v Goodfellow (1986) 83 Cr App R 23, 27. It accords with a passage from Professor Glanville Williams' Textbook of Criminal Law (2nd ed), page 39, which was cited in argument below:
"What a person does if he has reached adult years, is of sound mind and is not acting under mistake, intimidation or other similar pressure, is his own responsibility and is not regarded as having been caused by other people. An intervening act of this kind, therefore, breaks the causal connection that would otherwise have been perceived between previous acts and the forbidden consequence."
We return to the question whether the judge was correct to rule that the self-injection by Escott with heroin was an unlawful act. In this context "unlawful" means that the act has to be a criminal offence: see Franklin (1883) 15 Cox CC 163, and Lamb [1967] 2 QB 981, 988D-E.
On behalf of the appellant Mr Rumfitt QC relies on the decision of this court in R v Cato (1976) 62 Cr App R 41. That was a case where the appellant Cato had injected the deceased with morphine with his consent, but bringing about his death. The court upheld the conviction for manslaughter by an unlawful and dangerous act because there was an offence committed by the appellant under section 23 of the 1861 Act, namely administering a noxious thing. That was a case where the appellant had injected the deceased, not one of self-injection by the deceased. Mr Rumfitt relies on a passage at page 47 where the court in its judgment given by Lord Widgery CJ said this:
"Of course, on the first approach to manslaughter in this case it was necessary for the prosecution to prove that Farmer had been killed in the course of an unlawful act. Strangely enough, or it may seem strange to most of us, although the possession or supply of heroin is an offence, it is not an offence to take it…."
That, it is submitted, is clearly right. The possession or the supply of heroin is made an offence under the Misuse of Drugs Act 1971, but nowhere does that statute make it an offence to inject oneself with drugs.
It is sought on behalf of the appellant to distinguish the case of Kennedy relied upon by the trial judge. The facts of...
To continue reading
Request your trial
-
Seales v Attorney-General
...in England and Wales as to what constitutes an unlawful act for the purposes of determining if a homicide is culpable was further refined in R v Dias and R v Kennedy (No 2), where it was held that an “unlawful act” must be an offence. 93 A similar approach had been taken in New Zealand in R......
-
R v Simon Kennedy
...unlawful act; (2) that such unlawful act was a crime ( R v Franklin (1883) 15 Cox CC 163; R v Lamb [1967] 2 QB 981, 988; R v Dias [2001] EWCA Crim 2986, [2002] 2 Cr App R 96, para 9); and (3) that the defendant's unlawful act was a significant cause of the death of the deceased ( R v Cat......
-
R v Simon Kennedy
...given, they are most conveniently treated in chronological order. The first case to which it is necessary to refer is that of Dias [2002] 2 Cr. App. R. 5. The facts in Dias were very similar to the facts of this appeal. The most distinctive factual feature of Dias was that both the deceased......
-
Burns v The Queen
... Dalby was ‘explained’ in Goodfellow28 as ‘intending to say… that there must be no fresh intervening cause between the act and the death.’ R v Dias29 resembled Dalby. The accused had handed a syringe containing heroin to the deceased who self-injected and died. Holding that the supply of t......
-
Domestic Abuse, Suicide and Liability for Manslaughter: In Pursuit of Justice for Victims
...negligence manslaughter, see R v Adomako [1995] 1 AC 171.26. R v Franklin (1883) 15 Cox CC 163; R v Lamb [1967] 2 QB 981; R v Dias [2002] 2 Cr App R 5.27. R v Church [1966] 1 QB 59. Edmund Davies J, at 70, elaborated that an act is dangerous if ‘all sober and reasonable peoplewould inevitab......
-
Kennedy and Unlawful Act Manslaughter: An Unorthodox Application of the Doctrine of Causation
...A. Ashworth and B.Mitchell (eds), Rethinking English Homicide Law (Oxford University Press: Oxford,2000) 160.63 The facts in Rv Dias [2002] 2 Cr App R 5 are identical to those in Kennedy. Diaswas charged with manslaughter on the premise that self-injection was anunlawful act which he had ai......
-
R v Kennedy Revisited
...[14].21 Glanville Williams, ‘Finis for Novus Actus?’ (1989) 48 CLJ 391–416 at 396.22 [2005] 1 WLR 2159 at [34], per Lord Woolf CJ.23 [2001] EWCA Crim 2986, [2002] 2 Cr App R 5.24 [1982] 1 WLR 425.25 R vDias [2001] EWCA Crim 2986, [2002] 2 Cr App R 5 at [25].The Journal of Criminal Although ......
-
Court of Appeal
...of manslaughter because he had pre-pared a syringe of heroin and the victim had injected himself with thedrug. However, in R v Dias [2002] 2 Cr App R 5, which was virtually thesame facts as Kennedy (No. 1), a differently constituted Court of Appealheld that injecting oneself with heroin was......