R v Kennedy Revisited
| Author | Michael Nkrumah |
| DOI | 10.1350/jcla.2008.72.2.487 |
| Published date | 01 April 2008 |
| Date | 01 April 2008 |
| Subject Matter | Comment |
COMMENT
R v Kennedy Revisited
Michael Nkrumah*
Keywords Assisting drug administration; Unlawful act manslaughter;
Causation; Novus actus interveniens; Complicity
The decision of the House of Lords in R v Kennedy1has been awaited by
criminal lawyers because of its potential ramifications on the operation
of the novus actus interveniens doctrine and the law relating to participa-
tion. The Court of Appeal considered Kennedy on two separate occasions2
and on each occasion, in dismissing the appeal, the court decided that
helping to prepare heroin in some way, such as cooking it and drawing
it into a syringe, may suffice to attract criminal liability in the form of
manslaughter. The House of Lords has now allowed the appeal and the
question as to whether their Lordships were correct in reversing the
decision of the Court of Appeal to uphold the conviction is considered
below.
Difficulties with Kennedy
The reasoning of both constitutions of the Court of Appeal gives rise to
two principal difficulties: (1) How can a defendant, such as Kennedy, be
said to have caused, in law, the death of V, if V injected himself? Surely
V’s self-injection constitutes a novus actus interveniens, which breaks the
chain of causation between D’s act and V’s death. (2) How can D be
jointly responsible for the administration of the drug if he does no more
than aid or assist the taking of the drug? Surely D is no more than a
secondary party and can only be classed as a principal when he actually
injects V or where V’s self-injection is not free and informed—in other
words, it is ‘voluntary’. The Court of Appeal apparently disagreed with
each of these assumptions.
Causation and its role within the criminal law
Both s. 23 of the Offences against the Person Act 1861 (administering
poison, etc. so as to endanger life) and manslaughter are so-called result
crimes, so for the Crown to prove its case against a defendant such as
Kennedy, it must establish, beyond reasonable doubt, that the defendant
caused both the administration of heroin and the death.
Causation is established where it is proved that D’s act or omission
was the factual cause and that that act or omission was a sufficient cause
in law. Factual causation is established where D’s act or omission is the
* LLB (Hons); e-mail michael_nkrumah007@hotmail.com.
1 [2007] UKHL 38, [2007] 3 WLR 612.
2R v Kennedy [1999] Crim LR 65; R v Kennedy [2005] EWCA Crim 685, [2005] 1
WLR 2159.
117The Journal of Criminal Law (2008) 72 JCL 117–130
doi:1350/jcla.2008.72.2.487
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