R v Simon Kennedy

Ordered to Report

The Committee (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Mance) have met and considered the cause R v. Kennedy (On Appeal from the Court of Appeal (Criminal Division)). We have heard counsel on behalf of the appellants and respondents.

This is the considered opinion of the committee.

The question certified by the Court of Appeal Criminal Division for the opinion of the House neatly encapsulates the question raised by this appeal:

"When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?"

The agreed facts are clear and simple. The appellant lived in a hostel in which Marco Bosque and Andrew Cody, who shared a room, also lived. On 10 September 1996 the appellant visited the room which Bosque and Cody shared. Bosque was drinking with Cody. According to Cody, Bosque told the appellant that he wanted "a bit to make him sleep" and the appellant told Bosque to take care that he did not go to sleep permanently. The appellant prepared a dose of heroin for the deceased and gave him a syringe ready for injection. The deceased then injected himself and returned the empty syringe to the appellant, who left the room. Bosque then appeared to stop breathing. An ambulance was called and he was taken to hospital, where he was pronounced dead. The cause of death was inhalation of gastric contents while acutely intoxicated by opiates and alcohol.

The appellant was tried at the Central Criminal Court on an indictment containing two counts: an unparticularised count of manslaughter; and a count of supplying a class A drug (heroin) to another in contravention of section 4(1) of the Misuse of Drugs Act 1971. The appellant pleaded not guilty to both counts but on 26 November 1997 he was convicted of each. He was sentenced to five years' imprisonment on the first count and three years' concurrent on the second. He was granted leave to appeal against the conviction of manslaughter but his appeal was dismissed by the Court of Appeal Criminal Division (Waller LJ, Hidden J and His Honour Judge Rivlin QC) on 31 July 1998: [1999] Crim LR 65. On that appeal the appellant no longer disputed that he had supplied the heroin to the deceased, and that has not since been in issue.

Prompted by doubts as to the soundness of the Court of Appeal's grounds for dismissing the appellant's first appeal and the safety of his conviction, the Criminal Cases Review Commission on 24 February 2004 exercised its power under section 9 of the Criminal Appeal Act 1995 to refer the appellant's manslaughter conviction back to the Court of Appeal, for reasons which it set out in considerable detail. The reference therefore fell to be treated as an appeal, which the Court of Appeal (Lord Woolf CJ, Davis and Field JJ) heard on 31 January and dismissed on 17 March 2005: [2005] EWCA Crim 685, [2005] 1 WLR 2159. This is the decision which the appellant now challenges.

Manslaughter

It is well-established and not in any way controversial that a charge of manslaughter may be founded either on the unlawful act of the defendant ("unlawful act manslaughter") or on the gross negligence of the defendant. This appeal is concerned only with unlawful act manslaughter and nothing in this opinion should be understood as applying to manslaughter caused by gross negligence.

To establish the crime of unlawful act manslaughter it must be shown, among other things not relevant to this appeal,

There is now, as already noted, no doubt but that the appellant committed an unlawful (and criminal) act by supplying the heroin to the deceased. But the act of supplying, without more, could not harm the deceased in any physical way, let alone cause his death. As the Court of Appeal observed in R v Dalby[1982] 1 WLR 425, 429, "the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous". So, as the parties agree, the charge of unlawful act manslaughter cannot be founded on the act of supplying the heroin alone.

The parties are further agreed that an unlawful act of the appellant on the present facts must be found, if at all, in a breach of section 23 of the Offences against the Person Act 1861. Although the death of the deceased was the tragic outcome of the injection on 10 September 1996 the death is legally irrelevant to the criminality of the appellant's conduct under the section: he either was or was not guilty of an offence under section 23 irrespective of the death.

As it now effectively reads, section 23 of the 1861 Act provides:

"Maliciously administering poison, etc, so as to endanger life or inflict grievous bodily harm

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, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of [an offence] and being convicted thereof shall be liable … to [imprisonment] for any term not exceeding ten years …".

The opening and closing words of the section raise no question relevant to this appeal. The substance of the section creates three distinct offences: (1) administering a noxious thing to any other person; (2) causing a noxious thing to be administered to any other person; and (3) causing a noxious thing to be taken by any other person. It is not in doubt that heroin is a noxious thing, and the contrary was not contended.

The factual situations covered by (1), (2) and (3) are clear. Offence (1) is committed where D administers the noxious thing directly to V, as by injecting V with the noxious thing, holding a glass containing the noxious thing to V's lips, or (as in R v Gillard(1988) 87 Cr App R 189) spraying the noxious thing in V's face.

Offence (2) is typically committed where D does not directly administer the noxious thing to V but causes an innocent third party TP to administer it to V. If D, knowing a syringe to be filled with poison instructs TP to inject V, TP believing the syringe to contain a legitimate therapeutic substance, D would commit this offence.

Offence (3) covers the situation where the noxious thing is not administered to V but taken by him, provided D causes the noxious thing to be taken by V and V does not make a voluntary and informed decision to take it. If D puts a noxious thing in food which V is about to eat and V, ignorant of the presence of the noxious thing, eats it, D commits offence (3).

In the course of his accurate and well-judged submissions on behalf of the crown, Mr David Perry QC accepted that if he could not show that the appellant had committed offence (1) as the unlawful act necessary to found the count of manslaughter he could not hope to show the commission of offences ( 2) or (3). This concession was rightly made, but the committee heard considerable argument addressed to the concept of causation, which has been misapplied in some of the authorities, and it is desirable that it should be clear why the concession is rightly made.

The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another. There are many classic statements to this effect. In his article "Finis for Novus Actus?" (1989) 48(3) CLJ 391, 392, Professor Glanville Williams wrote:

"I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new 'chain of causation' going, irrespective of what has happened before."

In chapter XII of Causation in the Law, 2nd ed (1985), p 326, Hart and Honoré wrote:

"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 normally held to relieve the first actor of criminal responsibility."

This statement was cited by the House with approval in R v Latif [1996] 1 WLR 104, 115. The principle is...