R v Simon Kennedy
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice |
| Judgment Date | 17 March 2005 |
| Neutral Citation | [2005] EWCA Crim 685 |
| Docket Number | Case No:2004/1139/B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 March 2005 |
[2005] EWCA Crim 685
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CRIMINAL CASES REVIEW COMMISSION
The Lord Chief Justice of England and Wales
Mr Justice Davis and
Mr Justice Field
Case No:2004/1139/B5
Mr David Bentley (instructed by Bullivant & Partners) for the Appellant
Miss Sallie Bennett-Jenkins (instructed by Crown Prosecution Service) for the Respondent
The Lord Chief Justice:
This appeal comes before this court as a result of a reference by the Criminal Cases Review Commission ("the Commission") under S.9(1) of the Criminal Appeal Act 1995. The principal point which the appeal raises is one which has been before this Court on a number of occasions in recent years. The views which have been expressed by differing constitutions of this court on the point have differed, at least in emphasis, and one of the considerations that the Commission has taken into account in making this reference, is the hope that our decision will help to clarify the law or lead to an appeal which will have that effect.
The point that gives rise to difficulty is as to when it is 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 self administered by the person to whom it is supplied, and the administration of the drug then causes his death.
The Facts
The appellant, Simon Kennedy ("the appellant"), was involved in the supply of heroin to Marco Bosque ("the deceased"). The deceased shared a room at a hostel with Andrew Cody, where the appellant was also a resident. The appellant prepared a "hit" of heroin for the deceased in that room and gave him the syringe ready for injection. The deceased injected himself and returned the syringe to the appellant. The appellant left the room. The heroin resulted in the deceased's breathing being affected. Although an ambulance was summoned, the injection resulted in the death of the deceased.
According to Cody, the deceased had told the appellant that he wanted "a bit to make him sleep" and the appellant told the deceased to take care that he did not go to sleep permanently.
The appellant was tried at the Central Criminal Court on 26 November 1997. He was convicted of manslaughter and supplying a Class A controlled drug to another. He was sentenced to 5 years' imprisonment on the count of manslaughter and 3 years' imprisonment, concurrent for the offence of supplying a Class A controlled drug. On 31 July 1998, this court, presided over by Lord Justice Waller who was sitting with Mr Justice Hidden and His Honour Judge Rivlin QC, dismissed the appellant's appeal against his conviction for manslaughter ( R v Kennedy [1999] Crim LR 65).
The Commission made their reference because:
i) Recent decisions of this court had cast doubt upon the correctness of the reasoning of Lord Justice Waller in the first appeal in July 1998.
ii) The trial judge failed to explain novus actus interveniens in terms that a free, deliberate and informed act of a third party deciding to inject himself with the drug would break the chain of causation between the supply of the heroin and the death of the deceased.
In support of their reference, the Commission have provided a detailed and very helpful Statement of Reasons examining the relevant authorities, which we have found of considerable assistance.
The jury were handed by the trial judge a series of questions to assist them to consider the 2 counts on the indictment (count 1: being the manslaughter count and count 2: the supplying count). The questions were in these terms:
" Count 2 Are we sure the Defendant on the 10 th September 1996 deliberately supplied what he knew to be heroin to Marco Bosque?
If No-not guilty to Counts 1 and 2.
If Yes-guilty Count 2.
Count 1
1. Are we sure the Defendant prepared what he knew to be a heroin mixture for Bosque?
If No-not guilty.
If Yes-Consider.
2. Are we sure the Defendant handed the heroin to Bosque for immediate injection?
If No-not guilty.
If Yes-Consider.
3. Are we sure the Defendant's act was one which all sober and reasonable people would inevitably realise was bound to subject Bosque to the risk of harm, albeit, not serious harm?
If No-not guilty.
If Yes-Consider.
4. Are we sure that the Defendant's act was a significant cause of death?
If No-not guilty.
If Yes-guilty of manslaughter."
We draw particular attention to the reference to "immediate injection" in the questions.
The trial judge directed the jury in the following terms:
"Members of the jury, you will start by considering count 2 and you will ask yourselves: are we sure the defendant on 10 th September 1996 deliberately supplied what he knew to be heroin to Marco Bosque? This means, in the circumstances of this case, that before convicting the defendant, you must feel sure that the defendant brought the heroin into Bosque's room, knew it was heroin and supplied it to Bosque. If the answer to the question on count 2 is 'no', then you find the defendant not guilty to counts 1 and 2. (So you will see why you must consider count 2 first.) If the answer is 'yes', then he is guilty on count 2. Then you go on to consider count 1, the manslaughter count, and there are [sic] a series of questions that you need to ask yourselves: firstly, are we sure the defendant prepared what he knew to be a heroin mixture for Bosque? If 'no', not guilty. If 'yes', you go on to question two. As far as that question is concerned, question one, if the defendant's account of bringing the syringe and the citric acid into Bosque's room and simply getting water for him and holding the lighter under the spoon may be true, the defendant should be acquitted. Having considered question one, as I say, if the answer is 'no', not guilty. If 'yes', you consider question two: are we sure the defendant handed the heroin to Bosque for immediate injection? If the answer is 'no', not guilty. If 'yes', then you go on to consider the next question: are we sure that the defendant's act was one which all sober and reasonable people would inevitably realise was bound to subject Bosque to the risk of harm – albeit not serious harm? If the answer is 'no', you say not guilty, and if 'yes', you consider the fourth question: are we sure that the defendant's act was a significant cause of death? The defendant's act does not have to be the sole or even the main cause of death. But you must be sure that the defendant's act was a significant cause of death. Preparing the heroin mixture that he brought into the room and handing the heroin mixture in a syringe to Bosque for immediate injection is capable of amounting to a significant cause of death."
On his previous appeal, the appellant no longer disputed that he had supplied the heroin to the deceased. Two grounds were relied on. The first, based upon R v Dalby (1982) 74 Cr. App. R. 348, was that the submission of no case to answer, that had been made on the appellant's behalf at the trial, should have succeeded. The second was that, if the facts in the instant case were distinguishable from those in Dalby, the appellant's counsel ought not to have been precluded from seeking to persuade the jury in his closing speech that the deceased's death was caused by his own decision to take the drugs for which the appellant had no legal responsibility.
It was also contended that, in dealing with the series of questions on which the jury might make their findings, the judge had failed to explain to the jury that there might have been a break in the chain of causation if they formed the view that the deceased's death was due to his own decision to inject himself with the drugs.
The Case of Dalby
The defendant, a Mr Derek Dalby had supplied the deceased, a Mr Stefan O'Such, with Diconal tablets. Both had injected themselves with the tablets in solution. They then went to a discotheque where they parted company. O'Such subsequently met a friend who helped him on two occasions to administer intravenous injections of an unspecified substance to himself. O'Such then returned home to his flat where he must have gone to sleep on the settee. An attempt to wake him the next day was unsuccessful. Dalby was prosecuted for manslaughter and convicted on the basis that his supply of the Diconal tablets was an unlawful and dangerous act which caused the death of O'Such.
On Dalby's appeal, it was argued on his behalf that:
i) The unlawful act must be one directed at the victim and the supply of the drugs was not such a direct act;
ii) The supply of drugs can be harmless or extremely harmful depending on the manner in which the victim deals with them; and
iii) The drugs in this case were taken voluntarily by the victim. The chain of causation between the unlawful act of supplying the drugs, and O'Such's death resulting from the intravenous injection of too great a quantity of them, was therefore broken.
The trial judge gave leave to appeal. In doing so, he posed the following question:
"In the circumstances in which the intravenous consumption of a dangerous drug is a substantial cause of the death of the deceased, does the unlawful act of supply of the dangerous drug by the defendant to the deceased, per se, constitute the actus reus of the offence of manslaughter?"
The Court of Appeal gave a negative answer to this question. In doing so, they relied on the previous decisions of this Court in: Larkin (1942) 29 Cr App R 18 and the judgment of Humphreys J at p 23; Church (1965) 49 Cr App...
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