Critique of R v Kennedy EWCA Crim 685 - Article Example

Case Critique of R v Kennedy (2005) EWCA Crim 685 In Regina v. Kennedy, the defendant, Kennedy had handed over a syringe of heroin to Bosque, who was his acquaintance. Bosque injected himself with the heroin and lost his life. The main issue raised by this case was regarding when it was apt to deem a person guilty of manslaughter, when that person had supplied a class A controlled drug, which was subsequently, injected by the person to whom it was supplied, with lethal effect1. It is highly questionable as to whether the act of preparing a syringe for the injection of a narcotic drug by an acquaintance can be considered to be an unlawful act. There is a fine distinction between preparing a syringe for injection and actually administering it. This case also addressed the issue of the supply of illegal drugs and the self administration of such drugs by the person to whom they were supplied. Since, the person who had administered the drugs, lost his life, the question arose as to whether manslaughter had been committed by the person who had supplied the syringe of heroin2. Kennedy had supplied heroin to Bosque, however, this mere supply of drugs had not caused danger to the deceased. The deceased had injected himself with a lethal quantity of heroin. In the trial court, the prosecution had argued that Kennedy had prepared the syringe load of heroin, with a clear mind and knowledge that it was heroin. Thereupon, he had handed the syringe to Bosque. The defendant’s action was contended to constitute an unlawful act. The relevant provisions of the Offences against the Person Act 1861, stipulate that an action becomes offence, if it tries to “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 thereby to endanger the life of such person3”. However, for this to be applicable there should be malicious intent on the part of the defendant and in addition, he should have the knowledge that he was administering a poison or noxious thing or else the defendant should have been instrumental for action to have taken place. The trial court considered Kennedy to be guilty of manslaughter and sentenced him to five years in prison4. Kennedy appealed against this decision in the Court of Appeal, which held that his unlawful conduct had been established by two facts. First, he had knowingly supplied the unlawful drugs to the deceased and second, he had assisted or encouraged the deceased to administer himself with the heroin supplied by him. Further, the Court noted that the appellant had suggested to the deceased that the injection of the heroin be administered by the deceased himself. This was an unlawful act, because it was an offence to encourage the use of heroin. The Court also held that if the appellant had assisted in the preparation of the injection and had intentionally encouraged the deceased to engage in that unlawful act, then it can be construed that the appellant had acted unlawfully. Therefore, the Court of Appeal dismissed the appeal of the defendant and upheld the decision of the trial court5. In R v Dias, the victim and the defendant had procured heroin and after an injection of heroin had been prepared by the defendant, the victim had injected himself with it. The trial court had convicted the defendant, because it was held that the self injection was unlawful and that the defendant had assisted and encouraged the victim to do so. However, the Court of Appeal opined that self injection of a drug was not unlawful and accordingly set aside the verdict of the trial court. This decision is just the opposite of what had been decided in Kennedy. There is an obvious contradiction in these two judgments6. Similarly, in R v Richards, the Court of Appeal, quashed the conviction of the defendant, for the reason that although the injection that had been self administered by the victim had caused death, it was not an unlawful act7. Nevertheless, in R v Rodgers8, the court held that if a person had actively participated in the process of administering an injection then it could be construed that there was actus reus under section 23 of the Offences Against the Person Act 1861. If death occurred in such situations, then the defendant could be held guilty of manslaughter. In this case, the defendant had assisted the victim by wrapping his belt as a tourniquet around the victim’s arm, while the latter was injecting heroin. This self administration of heroin proved to be fatal. The defendant was held to be guilty under section 23 of the Offences against the Person Act 18619. Two charges had been made against Rodgers, the first was that of administering a noxious substance that had caused risk to life and the second was that of manslaughter. The court held that the act of his using his belt as a tourniquet comprised a part of the unlawful act of administering heroin. The defendant, for lack of a proper defence to these charges, pleaded guilty. As a last resort, he appealed against his conviction, which was dismissed by the Court of Appeal10. The court did not separate the act of using the belt as tourniquet from the injection of heroin. It also pointed out that the tourniquet had been used to raise a vein to facilitate this process. The court’s reasoning was that the defendant had participated in the complete process, which had resulted in the death of the victim11. Unlike the circumstances in the Dias case, the defendant in this case had actively participated in the process, which had proved fatal to the victim. In R v Finlay12, the Court of Appeal held that irrespective of whether the defendant had administered the injection to the victim or not, he would have been guilty of committing an offence under section 23 of the Offences against the Person Act 1861 had his actions been conducive to the administration of the heroin injection by the deceased. The court also held that there was no necessity for the defendant to have physically administered the injection to the victim. In this case, the defendant had drawn into a syringe a lethal dose of heroin. The deceased had injected it himself. The Court of Appeal reasoned that this act was an offence under section 23 of the Offences against the Person Act 1861. Accordingly, the Court held that the actions of the defendant amounted to manslaughter. Under section 23 of the Offences against the Person Act 1861, the preparation of a dose of heroin constitutes an offence. Further there was a sequence of causation acts between the acts of the defendant and the death of the deceased. The self injection did not dismantle this chain13. In light of the decisions in the cases discussed in above, a demand was made to review the case of Kennedy. The contention in this case was that the trial court had failed to describe the notion of a novus actus interveniens. It was also argued that the trial court had failed to interpret this notion appropriately, because the free, deliberate and informed act of a third party who self – injected the drug, serves to break the chain of causation, where such causation rests between the supply of heroin and the death of the victim14. As these cases suggest the person who causes his own death cannot be construed to have committed an offence. Accordingly, the person who motivated or assisted the deceased to cause his own death cannot be held as an accessary to manslaughter. All the same, in situations where the defendant and the deceased acted in a concerted manner for administering the injection or for causing the administration of the drug, the defendant will be guilty of committing an offence under section 23 of the Offences Against the Person Act 1861. Such an offence will constitute an unlawful act that could be the basis for a manslaughter charge. This principle was adopted by the Court of Appeal in holding that the death of the victim would not influence the situation. The defendant’s participation in an offence that involved the administration of the drug had established causation15. The other issue raised by the Court of Appeal was that the defendant could be convicted of manslaughter, even though he had not assisted in the actual administration of the injection. In order to convict the defendant, the Court opined that the jury should have satisfied itself that the defendant had given heroin to the deceased for immediate injection; as such both the defendant and the deceased had engaged themselves solely in the activity of administering heroin. The jury cannot differentiate between these two separate activities. In this manner, adequate satisfaction was available to the jury and thereby the defendant was responsible for his concerted action with the deceased and for having encouraged the deceased to self – inject heroin. The loaded syringe was readily available to him for his immediate administration16. The fundamental issue in this case was that both the defendant and the deceased were engaged in a concerted act of administering the injection for which operation they were jointly responsible. Their concerted action was similar to what nurses do in hospitals, while lawfully administering injections. In hospitals, generally one nurse prepares the syringe with the medicine and keeps it ready for injection, by the other nurse or medical practitioner, to a patient. In such situations both the nurses are said to have involved in the act of administering the drug. In the event of a transgression, both these nurses are held responsible, as per the provisions of the law. From this perspective on concerted actions, it is inevitable to regard the unlawful act as having been instrumental in causing the death of the victim17. This is the reason for the decision in Kennedy’s case being controversial. It deals with two different problems. First, there is a need to prove participation by the defendant in the act of the deceased’s self – administration of heroin. Second, there is a problem involved in establishing the unlawful nature of the deceased’s action. According to the reasoning of the Court, if causing one’s own death cannot be tantamount to criminal activity, then it is difficult to prove that the victim’s self – injection of a controlled drug was a crime18. If a crime is committed in order to protect a person, the person who initiates such a crime cannot be rendered criminally liable for having committed that crime. For example, a user of drugs cannot be convicted for having aided and abetted the offence of using drugs under section 23 of the Offences Against the Person Act 1861. From this it follows that a supplier of drugs is not guilty of participation in an unlawful activity. It is the victim who participates and the unlawful act of manslaughter cannot be established against the supplier of drugs. In Environment Agency v Empress Car Company Ltd19, Lord Hoffman established a test for causation that the intervening act should be an ordinary occurrence and not a novus actus or an extraordinary act. The Court of Appeal adopted this causation test in R v Finlay20. However, the Court failed to apply this test in the Kennedy case for the reason that the decision in Empress case could not be generalised to all cases. The application of the causation test was limited by the Court of Appeal to statutory contexts and was made inapplicable for purposes of general application. Further, the concerted action of a person with another person was analysed. In the present case there were three issued to be discussed. First, Kennedy had been present throughout the events of the case, second, his action of supplying the mixture of heroin in a syringe was immediately and intimately concerted with the victim’s conduct of self injection and third, Kennedy’s contribution was as a result of their shared understanding that included the victim’s subsequent conduct21. In R v Dalby, Dalby had supplied Diconal tablets to the victim. The victim prepared a solution with these tablets and injected it into himself. On being convicted of manslaughter, the defendant successfully, appealed against the conviction in the Court of Appeal, which set aside his conviction22. The circumstances in Dalby and Kennedy were almost similar, except for the fact that Dalby had merely supplied the tablets to the victim, whereas Kennedy had prepared the mixture of heroin, drawn it into a syringe and then handed it over to the victim. The case law depicts considerable confusion. The Kennedy case finally made its way to the House of Lords. This august body examined the case from a number of perspectives. Their Lordships held that manslaughter could be proved, only if Kennedy had committed an unlawful act; if that act was a crime and if that act had a major influence in bringing about the death of the victim. While conceding the fact that the appellant had committed a crime by supplying heroin to Bosque, it was all the same not accepted by the House of Lords that this act, in isolation could be construed to be the cause of death. The establishment of guilt was to be solely on the basis of whether or not Kennedy had been in breach of section 23 of the Offences Against the Person Act 1861. Legally, the act of the deceased in fatally injecting himself with the heroin had no relevance to whether Kennedy’s conduct was a violation of the aforementioned section of the section 23 of the Offences Against the Person Act 1861. In addition, their Lordships held that by no stretch of the imagination, Kennedy could be accused of having persuaded or compelled Bosque to administer to himself the heroin injection. As such, Bosque had voluntarily injected himself with heroin. Hence, the only line of attack open to the prosecution was to establish that the appellant had administered the drug to the deceased. Although, Kennedy had provided the prepared syringe to Bosque, the latter had been under no compulsion to inject himself with it. The heroin had been self injected and at that stage the appellant had not made any contribution to the process. Moreover, the appellant had neither caused the drug to be administered nor to be injected by the deceased. In view of the above facts, the House of Lords set aside the specious decision of the England and Wales Court of Appeal23. In addition, the House of Lords opined that it was patently inappropriate to deem a person guilty of manslaughter, if that person had been a supplier of class A controlled drugs and if such a drug had been voluntarily self administered by a responsible adult, who knew what he was doing and if such an act proved to be fatal for the self administrator of that drug. The House of Lords held that the crime committed by the defendant could not be classified as manslaughter. Since, the deceased had been a fully informed and responsible adult, the appellant could not be held liable for the offence of manslaughter. With this decision, a conscious effort was made by their Lordships to distinguish between contributory acts that could be deemed to be the administration of a noxious substance and acts that could not be so classified. Bibliography 1. Environment Agency v Empress Car Company Ltd (1999) 2 AC 22 HL 2. Finding the unlawful act causing death, and restricting the scope of Empress, retrieved 14 January 2008, http://www.hart.oxi.net/updates/pdfs/cl-cause.pdf 3. R v Dalby (1982) 1 All ER 916 4. R v Dias (2002) 2 Cr App R 5 5. R v Finlay (2003) EWCA Crim 3868 6. R v Kennedy (2005) EWCA Crim 685 7. R v Kennedy (No 2) [2007] UKHL 38 HL(E). 8. R v Richards (2002) EWCA Crim 12 9. R v Rodgers (2003) EWCA Crim 945 10. R v Kennedy (2005) EWCA Crim 685, September 2006. Retrieved 14 January 2008, http://www.stubblegal.co.uk/scripts/6Cri09.htm 11. Section 23 of the Offences Against the Person Act 1861 Read More