Causing trouble

Fundamental concepts in criminal law came under scrutiny in R v Kennedy [2007] UKHL 38 (17 October 2007).

These were causation and secondary liability, in the context of the requirement for an unlawful act in manslaughter where gross negligence is not alleged.

The facts of this case are set out in para 3:

“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.”

Strange as it may seem, the act of using heroin is not an unlawful Act in the UK: use of this drug is not proscribed by the Misuse of Drugs Act 1971[UK], and to find an act by the accused that could be the necessary unlawful act required before liability for manslaughter could arise, it was necessary to consider s 23 of the Offences Against the Person Act 1861[UK]:

"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 Crown accepted that it could not rely on the causal aspects of this liability (causing to be administered; causing to be taken) and the House of Lords took the opportunity to explain why: para 14-15. Essentially, because the victim had made a voluntary and informed decision to use the drug, the accused’s acts had no causal connection with that use or the subsequent death of the victim. The victim’s exercise of choice was a novus actus interveniens. For this reason, the accused’s unlawful act of supplying the drug was irrelevant.

The only alternative to the accused being liable as a principal (not possible here because of the lack of causal connection) was liability as a secondary party. That, however, was not possible, because the victim had done nothing unlawful for the accused to be a party to.

Could the accused’s acts be regarded as administering the drug? That would be an unlawful act (s 23 of the Offences Against the Person Act 1861, above). This was addressed in para 19:

“The sole argument open to the crown was, therefore, that the appellant administered the injection to the deceased. It was argued that the term "administer" should not be narrowly interpreted. Reliance was placed on the steps taken by the appellant to facilitate the injection and on the trial judge's direction to the jury that they had to be satisfied that the appellant handed the syringe to the deceased "for immediate injection". But section 23 draws a very clear contrast between a noxious thing administered to another person and a noxious thing taken by another person. It cannot ordinarily be both. In this case the heroin is described as "freely and voluntarily self-administered" by the deceased. This, on the facts, is an inevitable finding. The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act.”

Obviously, there could easily be slightly different facts which would amount to administering by the accused, and indeed the Court of Appeal in this case had erroneously thought that they existed here, by considering that it was open to the jury to conclude that the events of giving the syringe and its use amounted to one transaction.

The House of Lords overruled two Court of Appeal decisions: R v Finlay [2003] EWCA Crim 3868 (8 December 2003), and R v Rogers [2003] EWCA Crim 945, [2003] 1 WLR 1374, because those cases overlooked the novus actus point. Rogers came close to administering, but there was still a distinction; the accused had held a belt tight around the victim’s arm while the victim injected himself with the drug: the question was still whether the act of using the drug was a free and voluntary act by the victim; since it was, it broke the chain of causation between what the accused did and the victim’s death.

The application of this case in other jurisdictions must be considered with care. Usually, it is an offence to use a controlled drug. The accused would, on the same facts, in that context be guilty of assisting an offence, and that assistance would be an unlawful act sufficient for that part of the actus reus of manslaughter.

The case does, however, contain a reminder of the relevance of causation to liability as a principal offender, and of its irrelevance to liability as a secondary party: paras 14, 17:

“14. 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 fundamental and not controversial.”

“17. In his article already cited Professor Glanville Williams pointed out (at p 398) that the doctrine of secondary liability was developed precisely because an informed voluntary choice was ordinarily regarded as a novus actus interveniens breaking the chain of causation:

"Principals cause, accomplices encourage (or otherwise influence) or help. If the instigator were regarded as causing the result he would be a principal, and the conceptual division between principals (or, as I prefer to call them, perpetrators) and accessories would vanish. Indeed, it was because the instigator was not regarded as causing the crime that the notion of accessories had to be developed. This is the irrefragable argument for recognising the novus actus principle as one of the bases of our criminal law. The final act is done by the perpetrator, and his guilt pushes the accessories, conceptually speaking, into the background. Accessorial liability is, in the traditional theory, 'derivative' from that of the perpetrator.""