The Misuse of Drugs in the UK - Essay Example

English Criminal law fails to deal with the drug supplier whose client dies after voluntarily self-injecting or ingesting in a consistent and principled manner Student’s Name Introduction The rampant misuse of drugs is a serious problem to the England due to many deaths that result from drug abuse1. The deaths of people from drug use and misuse have led to a long debate on the liability of the drug supplier in the death of the deceased. This debate has been made even more complex due to the failure of the English criminal law to deal with drug suppliers whose clients die from self-injecting or ingesting in a consistent and principled manner. If John supplies Mary with some controlled drug and Mary dies after self-injecting the drug, is John liable for unlawful act manslaughter, gross negligence manslaughter, murder, or supply of illegal substance? This is a question English criminal law seems to provide us with inconsistent answers. In some cases such as R v. Kennedy2this has been considered as unlawful act manslaughter, while in other cases, such as R v. Evans3this hasbeen considered as gross negligence manslaughter. It is however rare to have drug supplier charged with murder. According to Mitchel4, it is not possible to charge a drug supplier with murder because their actions do have the mensrea(guilty mind) needed to prove murder. The English criminal law are however clear on that the supply of drugs is unlawful act. The unlawfulness of supplying drugs is specified in the Misuse of Drugs Act 1971. The Misuse of Drugs Act 1971 specifies that it is an offence to be in possession of controlled drugs5; to have the controlled drugs with intention to supply it6; supplying unlawful drug7; and allowing your premise to be used for supplying drugs.8 Therefore, if someone dies from the drug supplier’s unlawful act of supplying drug, the drug supplier should be charged with unlawful act manslaughter. The criminal law on unlawful manslaughter or constructive manslaughter, requires sufficient prove of unintentionallinkbetween the supplier’s act and the death of the client for the supplier to be held liable9. Therefore, for the supplier to be held liable of manslaughter, it must be proved that the death of the drug user is attributed to the actions of the supplier10. The court needs to determine that were it not for the drug supplier’s act, the deceased could not have died (factual causation). Further to that, the court needs to prove that the act of the supplier was sufficiently significant in the death of the user(legal causation).English courts have failed to apply the principle of causation in a consistent and principled manner in most cases involving involuntary manslaughter11. It seems that, at sometimes the courts have been under pressure and overlooked some principles when convictingdrug suppliers. On the other hand, a person is liable for gross negligence manslaughter if they cause the death of another person through criminal negligence or reckless conduct.According to R v. Miller, 12one is considered to conduct themselves in a reckless manner if they act in complete disregard of obvious dangers, that from a reasonable bystander point of view, they ought to be aware of the dangers. Gross negligence includes both acts and omissions (failure to act). The charges on gross negligence assume that one owes the other the duty of care. However, under the common law, somebody is not obliged to show care to everyone. In some cases such as parents and their children, teachers and their pupils, doctors and their patients, duty of care is expected. So does the drug supplier owe the drug user the duty of care? In the case where a drug user dies and the drug supplier does not call for help before the user dies, one can argue that the supplier is liable for gross negligence. The main debate that may arise from this case is whether the supplier should be charged for unlawful act manslaughter or gross negligence manslaughter. An argument for gross negligence is based on the fact that death of the user resulted from failure to call for help and not the supply of drug. The inconsistence in the interpretation and application of gross negligence manslaughter and unlawful act manslaughter has subjected the English criminal law to a lot of criticism. This paper will explore various cases where drug suppliers have been charged with unlawfulact manslaughter or gross negligence manslaughter when their clients have died after self-injecting or ingesting controlled drug. The paper looks to expose the inconsistency in the application of principles with regard where a drug supplier has been charged of unlawful act manslaughter or gross negligence manslaughter.The paper employs IRAC legal reasoning to analyse the various cases Unlawful Act Manslaughter/ Constructive Manslaughter One is said to be liable for unlawful act manslaughter when one commits an unlawful act that leads to an unforeseen death of another person.13According to Ormerod and Fortson, the starting point for constructive manslaughter charges is to determine whether D constructed the manslaughter by committing a dangerous or criminal act14. The dangerous or criminal act must be as stipulated under the section 23 of the Offences against the Person Act 1861.15 In addition to establishing the defendant committed unlawful act, the principal of causation must be satisfied for the defendant to be charged with constructive manslaughter. The chain of causation is established when the accused’s action lead directly to the death of the deceased with little intervention by the deceased. In the case of the drug supplier, they form the chain of causation when they administer or aid in the administration of the drug.16 When the drug supplier injects the drug user, then it is easy to see the chain of causation. However, when the drug user self-inject, he breaks the supplier’s chain of causation. In Kennedy, the supplier encouraged the drug user to self-inject unlawfully and was, therefore, found guilty of constructive manslaughter.17 On the contrary, in R v. Dias, the appellant was found not liable for constructive manslaughter despite preparing and giving the deceased a syringe of heroin. This inconsistency has been prevalent in the application of the principle of causation on the role of drug supplier when a drug user dies after self-injecting. It is important to analyse several cases that involve a drug supplier whose client dies after voluntarily self-injecting or ingesting in order to examine the level of inconsistency in the English criminal law. R v Dalby Issue: The appellant and the deceased had injected themselves with a solution of Diconal tablets that the appellant had supplied. Stefan O’Such, the deceased and the appellant went to party where they later parted ways. Later O’Such met a friend who assisted him in injecting himself intravenous substance. When O’Such returned home, he collapsed on a sofa and was found dead in the following morning. Dalby was found liable for unlawful act manslaughter for his part in supplying Diconal tablets to O’Such. Rule: According to s.23 of the Offences against the Person Act 1861, Dalby committed unlawful act by supplying controlled drugs. However, a person is liable for unlawful manslaughter if factual causation and legal causation are established18. Self-injecting breaks the chain of causation for the drug supplier. Analysis: The unlawful act of supplying Diconaldrug by Dalby did not directly result to the death of the deceased. Although it is an act that set off the chain that finally led to the death of O’Such, Dalby’s chain of causation is broken when O’Such self-inject. The supply of drugs would by itself not present any harm to the victim unless when he used the drug in excessive amount. Therefore, the supply of the drug does not present any risk to the drug user. Conclusion: Dalby’s conviction for unlawful act manslaughter was quashed by Court of Appeal on the basis that the supply of drugs did not cause the death of O’Such. Instead, it was the victim’s act of self-administration of the drug that caused his eventual death. R v Kennedy[1999]19 Issue: Marco Bosque asked Simon Kennedy for a drug that would help him sleep. Kennedy supplied him a syringe with heroin, which Bosque self-injected and returned the empty syringe to Kennedy. Later, Bosque died in his hostel room. Kennedy was hence convicted of supplying a class A drug and unlawful act manslaughter. The appellant appealed on the basis that the chain of causation was broken when Bosque self-injected. Rule: Kennedy supplied heroin which is an unlawful act as per the s. 23 of the Offences Against the Person Act 1861. The R v Dalby case specifies that supplying the drug in itself does not cause the death of the drug user. However, assisting or encouraging the drug user to self-administer constitutes unlawful act. Analysis: The supply of controlled drug is unlawful act. Self-injecting by Bosque was unlawful act, and if Kennedy encouraged the victim to self-inject he committed unlawful act. The jury hence needed to determine if the chain of causation was broken when Bosque self-injected the drug. Determining Kennedy involvement in administration of drugs would make Kennedy liable for constructive manslaughter, otherwise the case should be quashed. Conclusion: The appeal was dismissed and the conviction upheld. The appellant assisted in the self-administration of the drug, leading to the death of Bosque. R v Dias [2002] 2 Cr App R 5 Issue: Dias, the appellant and Escott, the victims were vagrants and drug addicts. They bought some heroin with which the appellant prepared a solution that he gave to Escott in a syringe. Escott self-injected, and later died. Dias was convicted of constructive manslaughter based on R v Kennedy [1999] ruling. The appellant, however, appealed on the basis that self-injecting of heroin was unlawful and broke the chain of causation by the supplier. Rule: according to s. 23 of the Offences Against the Person Act 1861, supply of heroin is unlawful act. Based on R v Kennedy [1999] assisting or encouraging the drug supplier to self-inject constitute unlawful act. Thus when the user dies, the supplier is liable of constructive manslaughter. However, self-injecting is an unlawful act and breaks the chain of causation of the supplier. Analysis: According to R v. Kennedy ruling, the self-injecting of heroin by Escott was unlawful act. Although the trial judge found Dias guilty of aiding the self-administration, his actions cannot constitute to manslaughter because self-injecting broke the chain of causation. Conviction of Dias was, therefore, inconsistent to the principle of causation. Conclusion: Dias appeal was allowed and therefore, his conviction for constructive manslaughter was quashed. This was inconsistent with the R v Kennedy 1999 ruling that found Kennedy guilty, despite the user self-injecting. Although possessing and supplying drugs is unlawful, it does not have a casual nexus with the death of the user. The self-administration of drugs amounts to novusactusinterveniens that breaks the chain of causation. R v Kennedy [2005]20 Issue: Kennedy’s first appeal was unsuccessful, but following the Dias case, Kennedy’s case was referred back to the court of appeal. The ruling of Dias’ case was inconsistent to Kennedy’s appeal decision, and seemed to cast doubt on the interpretation of the principle of causation in the R v. Kennedy [1999]. Rule: the appellant’s role in aiding the self-administration of the drug amounted to an offence under the s.23 of the Offences Against Persons Act 1861, and hence an unlawful act. The death of Bosque was as a direct consequence of the self-administration and hence Kennedy was liable for constructive manslaughter. In this case, the administration of drug was a combined operation that did not break the chain of causation. Analysis: The participation of Kennedy in the administration of drug was considered to have not broken the chain of causation even when Bosque self-administered the drug. The fact that Kennedy prepared the syringe and handed it to Bosque makes it appear they were working as a team in the administration of the drug. Although the actions preparing the syringe and injecting are separate, they form the overall process of drug administration, which is unlawful act that led to the death of Bosque. Conclusion: The appeal was dismissed and conviction of constructive manslaughter was upheld. This decision to uphold Kennedy’s conviction for manslaughter seems inconsistent with the decision to quash the conviction on the same for Dias. Kennedy and Dias both prepared the drug and handed it to their victims in a syringe. However, while Dias conviction is quashed, Kennedy’s conviction is upheld. It is apparent that there is inconsistency in the interpretation and the application of the principle of causation in these two cases. However, Kennedy further appealed to the House of Lords in the next case. R v Kennedy [2007] 3 WLR 612 House of Lords Issue: The appellant had had two of his previous appeals to the Court of Appeal unsuccessful. The appellant pointed out that the drug user self-injected in a freely and voluntarily. Therefore, the self-administration ought to have broken the chain of causation. Rule: s.23 of the Offences Against Persons Act 1861, supplying drug is unlawful act. Self-administration however breaks the chain of causation. Analysis: Kennedy committed unlawful act by supplying the drugs to the victim. Just like in the R v Dalby and R v Dias case, the victim was informed and knew all the facts involving drug use and self-injected. Although, R v Kennedy 2005 considered the administration of drug to be a combined operation between the supplier and the user, the fact that it was freely and voluntarily administered should break the chain of causation. In addition, the appellant did not directly administer the drug nor cause the drug to be administered. In the case of an informed and responsible adult, the constructive manslaughter should not be considered. Conclusion: The House of Lords allowed the appeal and the appellant’s conviction of manslaughter was quashed. The contrasting interpretation of the principle of causation by the trial judge, Court of Appeal and the House of Lords illustrates how English criminal law has failed to deal with the drug supplier whose client dies after voluntarily self-injecting or ingesting in a consistent and principled manner. The inconsistency has surrounded on the interpretation of the principle of causation. Gross Negligence Manslaughter Williams points out that the application of the gross negligence manslaughter has been shrouded by inconsistence due to the difficult in determining whether one owes another the duty of care.21 The English criminal law does not stipulate clearly when one is deemed to owe another the duty of care.22 The interpretation of duty of care is based on the judgement of the court upon observing the circumstances under which the harm to the victim occurred. This law has been applied majorly in the cases where defendant is carrying out specialized job such as an engineer, doctor, teacher, police, and parent. All these people are expected to show duty of care to the people they serve. In the case where a professional commits or omits an action that from a reasonable bystander or a person from the same professional is deemed as gross negligence, and lead to death of the person under their care, the professional is liable for gross negligence manslaughter. According to R v Bateman23 a person is said to be liable for gross negligence manslaughter when it is determined that the defendant owed the deceased the duty of care, which he failed; his failure to show care led directly to the death of the deceased; and the negligence is gross. In the case where a drug user dies, it is particularly difficult to determine if the drug supplier owed the drug user the duty of care. It is also not clear how a drug supplier is supposed to show duty of care to their client. Considering that it is unlawful to supply drug in England, it is counterintuitive to outline how the suppliers are supposed to show care to their clients. It became a challenging when the court must prove that there is causative link between the act and omission on the suppliers’ part to the death of the client. The dilemma in the application of gross negligence manslaughter has been based on questions such as; can omission cause the same consequences as an act cause? And how significant is the self-injecting in breaking the chain of causation? The common law has identified two situations where one owes the other the duty of care. The situations are “voluntary assumption of responsibility” and “creation of danger”. 24The voluntary assumption of responsibility is based on the Stone and Dobinson case, while the duty of care that arises when one creates danger is based on Miller case25. Stone and Dobinson[1977] Issue: Fanny, a woman suffering from anorexia nervosa visited her brother Stone who was living with Dobinson, his cohabitee. The elderly woman would later starve herself to death in her brother’s premise. The question to the court of appeal was weather the appellant owed the deceased the duty of care based on the fact that she was staying in one of the appellant house and the other appellant had shown care by washing her and taking food to her. Rule: voluntary assumption of responsibility of care to someone who by either age or infirmity cannot take care of themselves makes the person to owe the other person the duty of care. In the case the victim dies due to gross negligence on the part of defendant, the defendant is liable for gross negligence manslaughter. Analysis: In the R v Stone and Dobinson, the appellants had voluntarily assumed the responsibility of taking care Fanny who due to her conditions could not take care of herself. In such a case, the appellant were supposed to show duty of care because Fanny had blood relation with Stone and was in the same house with Stone. On the other hand, Dobinson had taken the duty of caring Fanny by washing her and feeding her. The appellant were aware of her deteriorating health conditions but did not summon help. Conclusion: The omission by appellants was considered gross negligence. The proposition that the appellants were entitled to do nothing was rejected by the court. Stone and Dobinson were held liable for gross negligence manslaughter. R v. Miller case Issue: The R v Miller case demonstrates the principle of owing someone the duty of care after creation of danger. Miller created danger when he slept with a cigarette that accidentally set the mattress on fire. In noticing the smouldering mattress, Miller left the room and moved to the adjacent room. The fire caused damages worth more than £800. The defendant was convicted for causing danger by omission.26 Rule: under the s.3 of the Criminal Damage Act 1971, miller was guilty of arson for his reckless conduct in setting property on fire. His negligence to obvious danger of fire constituted mensrea though there was causal link with actusreus of setting property on fire. Analysis: when one creates a danger, he takes up a duty of care based on creation of danger. Omission to act by Miller despite creating the initial danger made him guilty of gross negligence Conclusion: The House of Lords upheld the conviction of Miller for criminal damage. According to the miller principle, the person who creates a danger he owes others the duty of care and therefore should take reasonable steps to ensure no harm is caused. The Miller reasoning is highly applied in “drug homicide” where the drug user dies in the presence of the drug supplier. In the case where the drug supplier takes no action (omission), he is convicted of gross negligence manslaughter.27Examples of this applications are the R v Evans28 and the R v. Khan.29 R v. Evans Issue: 16 year old Carly died as a result of heroin overdose, Evans, her half-sister and her mothers, Andrea, were charged with gross negligence manslaughter. Carly had overdosed heroin that had been supplied to her by her half-sister Evans while she was at home. Rule: Evans, having supplied the drug to Carly created a dangerous situation. Based on Miller principle, Evans owed Carly the duty of care. The mother, Andrea owed the daughter a duty of care because she was in her house based on R v Stone and Dobinsonreasoning. Failure to offer help amounted to gross negligence manslaughter by Evans and Andrea. Analysis: Because the death of Carly occurred at home, it is clear that the mother and sister would be expected to show their duty of care to Carly. The fact that they did not offer any help to Carly after heroin overdose, made them liable for gross negligence manslaughter.Andrea, in her capacity as mother, owed Carly the duty of care. On the other hand, Evans, as half-sister and as the drug supplier, owed the Carly the duty of care. The ruling on Evans was not majorly based on the familial relationship but rather the relationship between a drug supplier and a drug user. Conclusion: The fact that Evans and Andrea did not offer any help to Carly after heroin overdose, made them liable for gross negligence manslaughter. Andrea was hence sentence for two years, while Evans, who had play a role in drug supply was sentenced for four years. R v Khan30Case Issue: Khan and Sinclairsupplied a fifteen year old girl with heroin. The girl overdosed the heroin and went into a comma. When Khan and Sinclair left her in their flats, she was found dead two days later. The defendants were hence charged with gross negligence manslaughter Rule: according to the Miller principle a drug supplier owe the user the duty of care by creation of danger. Analysis: Khan and Sinclair owed the girl the duty of care, and by not calling for help they omitted their responsibility which amounted to gross negligence. According to the court, if the defendants had taken the responsibility to call for medical assistance, the girl would not have died Conclusion: Khan and Sinclair omitted their duty of care when they left the girl to die. When they supplied the drug, the created a danger and hence they owed the girl the duty of care. Their failure to call for help led to the death of the user. They were therefore convicted for gross negligence manslaughter Conclusion The criticism on the inconsistent application of the causation principle on the unlawful act manslaughterand gross negligence manslaughter is justified. The examination of the Kennedy case31shows inconsistent application of the principle of causation by the trial judge, Court of Appeal and House of Lords. Although it is clear that the victim made a deliberate and an informed decision to inject the drug in himself, it cannot be denied that Kennedy played a significant role in causing the victim’s death. It is a surprise that the House of Lords finds Kennedy not liable for gross negligence manslaughter while Evans32 and Khan and Sinclair33 are found guilty of gross negligence in similar circumstances. In the Dias case34, even though the drug supplier did not inject the drug to the victim, it was found that he played significant role in making it available. However, in Kennedy’s case the role of the supplier is ignored, and the main focus is put on fact that the drug was self-administered. The case on Rafferty indicates that the chain of causation is only broken when victims actions are unforeseeable. It is only when the defendant is unaware of the probable consequences of his action should he be acquitted. This is not the case in R v Kennedy35; who was fully aware that the victim would inject themselves and heroin could lead to death. It is therefore inconsistent that Kennedy is not charged with gross negligence manslaughter. It is certain that Kennedy unlawful act lead to death despite being in full knowledge it could harm his client. In order to adequately deal with unlawful act manslaughter, the English common law need to be consistent. References Cases R v Armstrong [1989] Crim LR 149 R v Bateman (1925) 19 Cr App R 8, (1925) ? Cox 33, [1925] All ER Rep 45, CCA R v Carey [2006] EWCA Crim 17 R v Creamer [1966] 1 QB 72, 49 Cr App R 368, [1965] 3 WLR 583, [1965] 3 All ER 257, CCA R v Dalby, [1982] 1 WLR 425 R v Dalloway, (1847) 2 Cox CC 273 R v Dawson (1985) 81 Cr App R 150, CA R v Dhaliwal [2006] 2 Cr App R 24. R v Dias, [2002] 2 Cr App R 96 R v Kennedy [2007] UKHL 38 R v Khan [1998] Crim. L.R. 830 CA (CrimDiv) R v Le Brun, [1992] QB 61 R v Miller, [1983] 1 All ER 978 (HL) R v Rafferty [2007] EWCA Crim 1846 Statutes Misuse of Drugs Act 1971 s. 23 of the Offences against Person Act 1861 Secondary Sources Cherkassky L ‘Kennedy and Unlawful Act Manslaughter: An Unorthodox Application of the Doctrine of Causation.’ [2008] Journal of Criminal Law 72, no. 5: 387-408. Chow Priscilla ‘Drugs Homicide: When will the drug supplier be held criminally liable, and should the law in this area be reformed?’ The Student: Journal of Law Jones T H ‘Causation, homicide and the supply of drugs’ [2006] Legal Studies, 26. Mitchell Barry ‘Distinguishing between murder and manslaughter in practice’ [2007] Journal of Criminal Law 71, no. 4: 318-341. Ormerod David and Fortson Rudi ‘Drug suppliers as manslaughterers (again)’ [2005] Criminal Law Review 819. Williams Glenys ‘Gross negligence manslaughter and duty of care in “drugs” cases: R v Evans’ [2009] Criminal Law Review Read More