|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
Lord Justice General
Lord Osborne
Lord Nimmo SmithLord Kingarth Lord Mackay of
Drumadoon |
[2009] HCJAC 8Appeal Nos: XC93/08 and XC388/08OPINION OF THE COURT delivered by THE LORD
JUSTICE GENERAL in APPEALS by KEVIN MacANGUS First Appellant; and MICHAEL KANE Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Macara, Solicitor Advocate,
Fitzpatrick, Solicitor Advocate;
Edinburgh (First Appellant)
Act: Shead, Farquharson; Drummond Miller, Edinburgh (Second Appellant)
Alt: Wolffe, Q.C., A.D.,
Cameron; Crown Agent
Introduction
[1] The first
appellant, Kevin MacAngus, has been charged on indictment before the High Court
at
"(1) on
9 January 2007 at Flat 2/2, 29 Havelock Street, Glasgow, you did unlawfully
supply a controlled and potentially lethal drug, namely Ketamine, a Class C
drug, specified in Part III of Schedule 2 to the Misuse of Drugs Act 1971 to
others, namely Andrew Turner, now deceased, Keren Ogilvie, Tammy Heather
MacDonald, David Rae McKay and Michelle Lennon, all c/o Strathclyde Police,
Stewart Street, Glasgow in a lethal quantity and for the purpose of ingestion
and said Andrew Turner, Keren Ogilvie, Tammy Heather MacDonald, David Rae McKay
and Michelle Lennon all ingested said Ketamine to the danger of their health
and safety and lives and said Andrew Turner died as a consequence of ingesting
said Ketamine and you did kill him;"
He is also charged, inter
alia with a contravention of section 4(3)(b) of the Misuse of Drugs Act
1971 in respect of the supply of ketamine to the five individuals named in
charge (1).
[2] The second appellant, Michael
Alexander Kane, has been charged on indictment before the High Court at
"(1) on
11 January 2008 at 6 Arkaig Crescent, Caol, you did unlawfully supply a
controlled and potentially lethal drug, namely Diamorphine, a Class A drug
specified in Part I of Schedule 2 to the Misuse of Drugs Act 1971, to Sheila
Marie MacMillan, now deceased, and you did inject into said Sheila Marie
Macmillan said drug to the danger of her health, safety and life and said
Sheila Marie Macmillan died as a consequence of you injecting said drug into
her body and you did kill her;
and
(2) on
11 January 2008 at 6 Arkaig Crescent, Caol, you did culpably and recklessly
inject William Smillie, residing there with Diamorphine, a Class A drug
specified in Part I of Schedule 2 to the Misuse of Drugs Act 1971, whereby he
lapsed into a state of unconsciousness to the danger of his life;" (A bail
aggravation is added to each charge.)
[3] Both
appellants raised preliminary pleas to the relevancy of the indictments in so
far as concerned the charges of culpable homicide. These pleas were in each case repelled at a
preliminary hearing. Against those decisions both appellants, with leave, now
appeal.
[4] The appeals
raise questions about whether the approach adopted by this court in Lord Advocate's Reference (No. 1 of 1994)
1996 J.C. 76 to cases involving death following the supply of drugs is correct.
In particular, it is suggested that the
position in Scotland should be reviewed in light of the recent decision of the
House of Lords in R v Kennedy (No.2) [2008] 1 A.C. 269. A bench of five judges has therefore been
constituted for this hearing.
Background
[5] Unusually, each appellant has agreed
with the Crown a joint minute of admissions outlining certain facts relevant to
their respective cases. Those facts, so
far as relevant to the present appeals, are outlined below.
Kevin MacAngus
[6] The first
appellant was a friend of the deceased and knew the other individuals named in
charge (1). They had visited him at the
locus, his home address, on the date of the offence. He purchased some ketamine and returned to the
flat with it. Others within the flat,
including the deceased, contributed to the cost of the purchase, the intention
being that the drug would be shared. The
deceased, the appellant and others, although not everyone within the flat, then
nasally ingested some of the ketamine. The
following morning the appellant found the deceased dead at the locus. The cause of death was ketamine intoxication. While the deceased had consumed some alcohol,
the level of ketamine in his blood was sufficient on its own to cause death. According to the post mortem report, this
could have been caused by repeated snorting rather than one very large dose. Forensic analysis of the deceased's hair
indicated that he had previously ingested ketamine. It was agreed (without elaboration) that
ketamine was a "potentially lethal" drug.
It is used as an anaesthetic and abused with stimulant, psychedelic and
dissociative effects.
Michael Alexander Kane
[7] The second
appellant was an acquaintance of the deceased and her partner William Smillie,
the complainer in charge (2). On the
afternoon of the offence all three had been drinking at the locus, which was
the home of the deceased. Having discussed the appellant's heroin use with him,
the deceased and Smillie decided to try it. The appellant purchased a bag of heroin with
£20 given to him by Smillie, returned to the locus with the drug and prepared
it for injection. The deceased being
unable to do it herself, the appellant injected heroin into her arm, at her
request and with her consent. She then
slumped on the floor. Smillie informed
the appellant that he had never used heroin before. Again of consent, the appellant injected a
third of the bag of heroin into Smillie, who immediately passed out. Paramedics were called and arrived to discover
that the deceased was not breathing. She
was later pronounced dead. The cause of
death was the cumulative effect of the ingestion of alcohol and heroin
intoxication. Smillie was close to
death: his blood contained a potentially
fatal level of morphine and but for medical intervention he would have died.
Submissions for the
appellants
Kevin MacAngus
[8] On behalf of the first appellant Mr
Macara presented four core submissions. The first two, which represented the
appellant's primary position, were related and were supported by reference to R v Kennedy
(No.2) [2008] 1 A.C. 269, which he asked this court to follow: first, the ingestion of ketamine by the
deceased, an adult with full capacity who was not vulnerable and who had
previously ingested the drug, was an autonomous act; and, second but related to the first
submission, that act was a novus actus
interveniens which broke the chain of causation connecting the purchase and
the supplying of the drug to the deceased's death. The other two submissions were that the
conduct of the first appellant was not "the equivalent of culpable and reckless
conduct", and that an act of administration, rather than mere supplying, was
required before he could be convicted of culpable homicide.
[9] Addressing the
foundation of the charge, Mr Macara submitted that there was a "perception" amongst
members of the legal profession in Scotland that an accused who supplied an
individual with a controlled drug for ingestion, which ingestion then caused
death, was, ipso facto, guilty of culpable
homicide, given the description of such acts as "the equivalent of culpable and
reckless conduct" in Lord Advocate's
Reference (No.1 of 1994) 1996 J.C. 76 (per Lord Justice Clerk (Ross) at
page 81). The appellant's actions could
be categorised as "involuntary" culpable homicide involving an "unlawful" act
(Gordon, Criminal Law of Scotland (3rd
ed.) paras.26.01-.03 and 26.24-.27; cf Hume vol. I, pages 233 - 234). Few modern cases falling within that category
did not involve a degree of recklessness or intent to cause some physical harm
(cf Finnigan, March 1958, unreported,
which involved "gross negligence", and Sutherland
v HM Advocate 1994 JC 62, which
involved jury directions making reference to the need for "recklessness" in a
case involving fire-raising - both cited by Gordon at para.26.27). It was now established that mens rea involving a significant element
of blame was required in "lawful act" culpable homicide cases (Transco plc v HM Advocate 2004 J.C. 29, Lord Osborne at para.[6]; Lord Hamilton at para.[36]). Similarly, culpable homicide charged in the
context of fatal road traffic cases normally libelled recklessness and required
mens rea to a more exacting standard
than cases such as the present (McDowall v HM Advocate 1998 S.C.C.R. 343; Paton v HM Advocate 1936 J.C. 19). In an earlier case, where a charge of culpable
homicide alleged that the accused had "recklessly" injected controlled drugs
into the deceased, the trial judge gave specific directions not only on
"unlawful act" culpable homicide (which there relied on proof of possession of
controlled drugs), but also on what was required if the jury were to find that
death had resulted from the accused's recklessness (Finlayson v HM Advocate
1979 J.C. 33, Lord Cowie's unreported charge to the jury). The accused was convicted of reckless
injection and on appeal the case was dealt with on that basis.
[10] There was no
allegation of recklessness in the indictment which the appellant faced. If,
however, contrary to the current perception of the decision in Lord Advocate's Reference (No. 1 of 1994)
recklessness were introduced as a matter of proof, there were factors in the
present case which were relevant: the
deceased had previously used ketamine; that drug was a cause of death in very few
drug-related deaths, and in fewer still was it the sole cause (Overview of Deaths Associated with Ketamine
Misuse in the UK (1993 - 2006) Journal of Clinical Psychopharmacology,
Volume 28, Number 1, page 114; Drug-related deaths in Scotland in 2007, General
Register Office for Scotland); and each
individual within the flat had been free to take as little or as much of the
drug as he or she wished. Foreseeability
of harmful consequences to the deceased in these circumstances was a relevant
factor in establishing recklessness (cf Harris
v HM Advocate 1993 J.C. 150).
[11] The
appellant's case could be distinguished from Khaliq v HM Advocate 1984
J.C. 23 and Ulhaq v HM Advocate 1991 S.L.T. 614. They involved solvent abuse, which was not
controlled by statute and could only therefore be prosecuted on the basis of
culpable and reckless conduct; and Khaliq involved the supply of a noxious
substance to children. Moreover, in Khaliq,
the Lord Justice General (Emslie) had relied on a number of nineteenth century
cases concerning the ingestion of noxious substances which were of limited
assistance as it was not clear that they involved volitional acts by the person
ingesting the drug (HM Advocate v Brown and Lawson (1842) 1 Broun 415; HM
Advocate v Jean Crawford (1847)
Arkley 394; HM Advocate v Milne and Barry
(1868) 1 Couper 28). Despite what
was said in Khaliq, a distinction did
fall to be made with cases which did not involve administration of a noxious
substance (cf Lord Justice General Emslie at pages 32 -34). The voluntary ingestion of a drug by a
competent adult was a novus actus
interveniens which broke the causal link. It was an ultroneous (in the sense of a voluntary)
act. The case of Ulhaq was of little assistance as it did not address these issues
directly (cf Lord Coulsfield's report to the High Court in Lord Advocate's Reference (No. 1 of 1994). In so far Khaliq,
Ulhaq and Lord Advocate's Reference
(No. 1 of 1994) might appear to support charge (1) (as framed), they had
been wrongly decided and the approach in R
v Kennedy (No.2) should be
adopted in
[12] It was
submitted as a fundamental principle of the common law that individuals ought
to be held responsible for the consequences of their own actions (cf McTear v Imperial Tobacco Limited (2005) 2 S.C. 1, per Lord Nimmo Smith at
paras 7.178 - 7.180). It was
inconsistent with that principle that one person could cause the act of another
(Kadish: "Complicity, Cause and Blame: A Study in the Interpretation of Doctrine",
(1985) 73 Cal. L Rev. 323; see also
Smith and Hogan, Criminal Law (12th
ed), especially at pages 82-4). If
greater protection and sanction were required for drug-related deaths, it was
more appropriate that Parliament, and not the courts, addressed the issue,
particularly given the principles of causation and autonomy involved (cf Drury v HM Advocate 2001 S.C.C.R. 581 per Lord Nimmo Smith at para.[9] and
Lord Mackay of Drumadoon at para.[3]). It had done so in other areas, such as deaths
arising from driving offences. That
provided the advantage of dealing with the issue comprehensively, rather than
on a case-by-case basis. It was
submitted that the correct approach to adopt to the issue of causation was one
of common sense (cf. Gordon, paras 4.01-.56; Blaikie v British Transport Commission 1961 S.C.
44, per Lord Justice Clerk (Thomson) at page 49; Alphacell
Ltd v Woodward [1972] A.C. 824,
per Lord Salmon at page 847C). The issue
had to be considered in context (Environment
Agency v Empress Car Company
(Abertillery) Ltd [1999] 2 A.C. 22, per Lord Hoffman at page 29). In the present case the true question was
whether the appellant had caused the deceased's death. In addressing novus actus interveniens, the court in Khaliq had relied on a passage in The Oropesa [1943] P 32. That
case involved an emergency at sea where it could be said that the human acts
concerned were taken out of perceived necessity. In that context the decision was
understandable, but could be distinguished. Different considerations applied in relation
to the criminal law (R v Kennedy (No.2), per Lord Bingham at para.15).
[13] In closing his
submissions, Mr Macara made reference to the different approaches adopted in
other jurisdictions to deal with cases of this kind. His motion was that charge (1) be dismissed as
irrelevant.
Michael Alexander Kane
[14] In opening his
submissions on behalf of the second appellant, Mr Shead submitted that
there were three issues which he would address: (1) the basis in law on which the Crown could
seek a conviction for culpable homicide; (2) the application of the principles of
causation as explained in R v Kennedy (No.2); and (3) what role, if any, the consent of the
victim had to play. He also confirmed
that he had both a "broad" and a "narrow" point of relevance in relation to the
culpable homicide charge.
Mr Shead highlighted that it was well established that
culpable and reckless conduct resulting in injury or death was a crime in the
law of
[15] At the
preliminary hearing the Advocate depute had indicated that the basis of the
prosecution for culpable homicide was recklessness: the Crown could not now argue a case on the
basis of unlawful act culpable homicide. It was of note that the use of the Misuse of
Drugs Act as a route to conviction was considered by the House of Lords, but
rejected by it (R v Kennedy (No.2), per Lord Bingham at para.7).
It was not right that a different view
be taken of a
[16] Addressing the
narrow point of relevance, Mr Shead noted that charges (1) and (2) both
involved the administration of controlled drugs resulting in death or injury. However, only the second charge contained the
words "culpable and reckless". That suggested that the charges proceeded on
different bases. If it was correct that the only basis for the
culpable homicide charge was culpable and reckless conduct, that charge was
irrelevant as no words suggestive of recklessness had been libelled. Any suggestion that Schedule 3 to the Criminal
Procedure (Scotland) Act 1995 allowed the relevant words to be implied into the
charge raised issues of compatibility with the Article 6 right to a fair trial:
the accused was not being given fair
notice of the basis on which the charge was made against him (cf Human Rights
Act 1998, section 6; Scotland Act 1998, section 57(2)).
[17] The wider
relevance point turned on the issue of causation and consent. Mr Shead submitted that the approach adopted
in R v Kennedy (No.2) as regards causation and autonomy should be followed
in
Submissions for the Crown
[18] Addressing the
terms of the charges which the appellants had challenged, the Advocate depute
submitted that they each averred facts which, if proved, would entitle the jury
to infer the degree of recklessness required for culpable and reckless conduct:
knowingly to inject someone with a noxious and prohibited substance, or to
supply such a substance in the knowledge it was to be ingested, was clearly
redolent of recklessness (cf Finlayson v HM Advocate). It was not necessary to aver the words
"culpable and reckless" (Schedule 3, paragraph 3 of the 1995 Act). Moreover, the unlawfulness that was averred
was a relevant adminicle in establishing that recklessness (HM Advocate v James Parker and James Barrie (1888) 2 White 79, pages 88-89 and
90 - 95). The decision in Lord Advocate's Reference (No.1 of 1994)
had been over-interpreted: the Opinion only addressed whether the "no case to
answer submission" had been correctly decided in that case. The Advocate depute accepted the need to
establish mens rea in a crime of
culpable homicide, and that in "lawful" act culpable homicide the necessary mens rea involved recklessness (Transco; Harris). The Crown's position was that these charges
had as their bases the reckless conduct of each accused. (In order to clarify matters, the Advocate
depute in the course of the discussion moved to amend charge (1) in each
indictment by the insertion of the words "recklessly and" before the word
"unlawfully", as well as by the insertion of the word "recklessly" before the
word "inject" in charge (1) directed against the second appellant. Though opposed in hoc statu by Mr Shead, but not by Mr Macara, that motion
was granted.)
[19] As a secondary
proposition it was submitted that the common law recognised the category of
unlawful act culpable homicide, although its ambit was not well defined (Hume vol. I pp 191 - 192). There was a suggestion that it was limited to
"offences against the person" (Sutherland
v HM Advocate 1994 S.C.C.R. 80). Not every statutory breach would be sufficient
to found a charge of culpable homicide (cf Transco;
Paton
v HM Advocate; HM
Advocate v Purcell 2007 S.C.C.R.
520, at para.15). However a distinction
might be made with charges under the Misuse of Drugs Act 1971 . That Act sought to control drugs due to their
pernicious effects on individuals. It
was arguable that the unlawful act in such cases was directed towards a
particular individual (cf Finlayson v HM Advocate). However, the Crown's main argument was that
the charges averred a sufficient basis for a finding of recklessness.
[20] As regards
causation, this was prima facie a
question of fact for the jury (Finlayson;
McDonald
v HM Advocate 2007 S.C.C.R.
10). The approach in R v Kennedy
(No.2) was not binding upon this court and ought to be rejected (Dickson v HM Advocate 2008 J.C. 181, per the Lord Justice General (Hamilton)
at para.[27]). It was concerned with the
law of manslaughter, which was not the same as the law of culpable homicide (Transco at paras [5] - [6] and [40]). The Crown accepted the principles of autonomy
and individual responsibility as fundamental to the common law: those principles could equally support the
view that someone who chose to supply illegal drugs should be held responsible
for the consequences of that choice. Moreover,
the reasoning in R v Kennedy (No.2) was based on the
proposition that a voluntary human act could not be caused. That was a legal, not a factual proposition. However, it fell to be decided by practical
considerations (Blaikie; Alphacell
Limited v Woodward). Different legal systems could legitimately
take a different approach. A review of
other jurisdictions showed that different approaches were indeed taken. The Advocate depute drew our attention to a
number of jurisdictions which adopted the same approach as that taken in Khaliq (Coyle v Commonwealth of
Virginia November 27, 2007, unreported; Shirah v State 555 So 2d 807 (Ala. Cr. App.
1989); R v Nbakwa 1956 (2) SA
557; Ex
parte the Minister of Justice: in re S v Grotjohn 1970 (2) SA 355; S v Hibbert 1979 (4) SA 717; R v Matthews 1950 SALR 671; and cf the position in France). The question fell to be informed by the
purpose of the exercise (Fairchild v Glenhaven Funeral Services Ltd [2003] 1
A.C. 32, per Lord Hoffmann at para.49). The
present context involved the question of whether the accused bore a relevant
measure of blame for the death of the deceased (Drury v HM Advocate, per
Lord Justice General (Rodger) at para.[13]). In delict, where damages followed success, the
unreasonable conduct of a pursuer could act as a novus actus interveniens (McKew
v Holland & Hannen & Cubitts 1970
S.C. (H.L.) 20, per Lord Reid at page 25). However, the policy of the criminal law was concerned
with whether the accused bore responsibility for the consequences of his acts
and was punishable accordingly.
[21] There was no
effective difference between supply and administration in the circumstances of
these cases (cf HM Advocate v Semple 1937 JC 41). The approach in R v Kennedy (No.2) raised
difficulties of distinction between cases where there was administration by
injection and other cases where an accused has assisted in some lesser way with
administration (cf R v Rogers [2003] 1 W.L.R. 1374; R v Dias [2002] 2 Cr App R 5, page 96; Austin,
20 February 1986, unreported - referred to in Buckwell & Ghodse, Misuse of Drugs at para.11-017). This was avoided if the ultimate question
asked was whether the accused bore responsibility, which was one which could be
addressed by a jury with appropriate directions. The submissions on behalf of the second
appellant which sought to broaden the principle of autonomy articulated in R v Kennedy
(No.2) to situations where the deceased had consented to injection fell to
be rejected. Such an approach had no
basis in Scots law (HM Advocate v Rutherford 1947 J.C.1, para.18; Smart v
HM Advocate 1975 J.C. 30, page 33; Sutherland, pages 94 - 95; Khaliq
page 32). There were sound policy
reasons for rejecting that approach, including, in the present context, the
protection of the naïve drug user. Both
cases should be remitted for trial.
Discussion - the
foundation of the charge
[22] In Transco
plc v HM Advocate this court
required, with a view to identifying, for the purposes of that case, what was
involved as regards mens rea in
relation to involuntary culpable homicide, to consider how the crime of
culpable homicide had been defined (per Lord Osborne at para.[4]). After a review of the authorities Lord
Osborne, at the end of that paragraph, saw merit in formulations of the
relevant mens rea to be found in Quinn v Cunningham 1956 J.C. 22, per Lord Justice General Clyde at
pages 24 and 25, in the discussion of the mens rea of the crime of culpable and reckless conduct; the formulations in Quinn had subsequently been adopted by this court in Cameron v Maguire 1999 J.C. 63 at pages 65-6.
Lord Hamilton, having noted in Transco
at para.[36] that the degree of culpability for the purposes of culpable
homicide of the kind under discussion had, it seemed, changed over time - a
greater degree of culpability being more recently required - pointed out that,
although in some of the authorities the formulations gave rise to some
difficulties, they did "at least point not only to a degree of want of care
which is grave but also to a state of mind on the part of the accused which is
'wicked' or amounts, or is equivalent to, a complete indifference to the
consequences of his conduct" para.[37]).
He further noted that in McDowall v
HM Advocate 1998 S.C.C.R. 343 (a case
of culpable homicide by the use of a motor vehicle) Lord Justice General
Rodger, delivering the Opinion of the Court, had spoken of the appellant
showing "complete disregard of potential dangers and of the consequences of his
driving for the public".
[23] Although in Transco the accused was also charged
with a statutory offence (a contravention of sections 3 and 33(1) of the
Health and Safety at Work etc. Act 1974), there was there no attempt by the
Crown to allege that, by virtue of that unlawful act and the resultant deaths,
the accused was guilty of culpable homicide.
The charge of culpable homicide proceeded solely on the basis of lawful
but reckless conduct. In the present
case the indictments prior to amendment did not include in the culpable
homicide charges the adverb "recklessly".
Although other averments in these charges might, if proved, have given
rise to an inference of recklessness, an issue debated before us was whether,
on the assumption that recklessness was not proved, the commission of an
unlawful act (in a contravention in these cases, or at least in the case of the
first appellant, of section 4(3)(b) of the Misuse of Drugs Act 1971)
resulting in death would entitle a jury to return a verdict of culpable
homicide. It was suggested that there
was a perception in the profession that the decision and reasoning of the court
in Lord Advocate's Reference (No.1 of
1994) carried the implication that a verdict of culpable homicide could be
returned on that basis. This was said to
be supported by paragraph 2 of the learned editor's remarks in Lord Advocate's Reference (No.1 of 1994)
1995 S.C.C.R. 177 at pages 186-7.
As in the present cases a question may arise during the trials as to
whether that perception is well-founded (and if so whether Lord Advocate's Reference (No.1 of 1994) was on this point
correctly decided), it is appropriate that we express our view on that issue.
[24] In Lord Advocate's Reference (No.1 of 1994)
the accused had been charged that at certain locations "you did unlawfully
supply a controlled and potentially lethal drug, namely amphetamine ... to [five
persons] in a lethal quantity and [these five persons] ingested said
amphetamine to the danger of their health, safety and lives and [one of them]
died as a consequence of ingesting said amphetamine and you did kill her". No plea was taken to the relevancy of that
indictment. The case went to trial. At the close of the Crown case a submission
was made that the accused had no case to answer on the culpable homicide charge. The trial judge, sustaining that submission,
acquitted the accused. The Lord Advocate
thereafter petitioned the High Court of Justiciary under section 263A(1) of the
Criminal Procedure (
"On the basis of the evidence (a)
that [the former accused] supplied amphetamine to the deceased for the purpose
of abuse, (b) that this purpose was achieved in as much as the deceased
ingested the drug, and (c) that this ingestion caused her death, was the judge
entitled to acquit [the former accused] of culpable homicide in terms of
section 140A of the Criminal Procedure (Scotland) Act 1975 on the basis
that it was not open to the jury to conclude that [the former accused] caused
the deceased's death?"
The High Court answered that question in the negative.
[25] As can be seen
from the terms of the question posed, the central issue was one of causation. The trial judge had sustained the submission
on the basis that the deceased took an active part in looking for amphetamine
to take, and measured out and took the dose which she did take entirely
voluntarily (1995 S.C.C.R. at pages 179-80). On the latter page the trial judge records
that "the Crown do not maintain that the accused acted recklessly or with gross
negligence". When, however, the petition
came before the High Court, events took a different turn. The Advocate depute relied upon principles laid
down in Khaliq v HM Advocate and Ulhaq v HM Advocate (both cases of culpable and
reckless conduct) and is recorded as having submitted:
"In the present case, it was libelled
that the supply of the controlled drug was illegal, and the advocate-depute submitted
that supply in these circumstances amounted to culpable and reckless conduct
which caused a real risk of injury, and that injury and death had in fact
resulted. In that situation he
maintained that there was sufficient evidence to entitle the jury to convict of
culpable homicide.
In essence the advocate-depute's
submission was that the case of Khaliq
v HM Advocate was to all intents and
purposes on all fours with the present case.
He also contended that his submissions derived further support from Ulhaq v HM Advocate." (1996 J.C.,
page 78F-G).
The court, having review Khaliq
and Ulhaq, continued at
page 185:
"Of course we recognise that, as
[counsel] submitted, there is in charge (11) [the culpable homicide
charge] no express averment of culpable and reckless conduct. However, in charge (11) it is libelled that
the supply was unlawful, and that the supply was of a controlled and
potentially lethal drug. It is also
libelled that the drug was supplied in a lethal quantity.
It is clear from what is said in the
reference and in the trial judge's report that [the former accused] supplied a
quantity of the controlled drug to a number of people including the deceased,
and that the purpose of that supply was so that the deceased and others could
take doses of the drug. In our opinion
such conduct on the part of [the former accused] is the equivalent of culpable
and reckless conduct. No doubt the
extent of any injurious consequences would depend upon the quantity of the drug
which the deceased ingested, but since the purpose of the supply was obviously
for the drug to be ingested by those to whom it was given by [the former
accused], it does not appear to us that this affects the matter. As the Lord Justice-General pointed out in Khaliq v HM Advocate, the causal link is not broken merely because a
voluntary act on the part of the recipient of the drugs was required in order
to produce the injurious consequences."
[26] It accordingly
appears that the court, for the purposes of determining the question of causation,
proceeded on the basis that the conduct on the part of the former accused of
which the Crown had libelled and of which it had led evidence was "the
equivalent of culpable and reckless conduct", that is, the "equivalent" of
conduct of the kind referred to in Khaliq
and Ulhaq. In so far as the quoted phrase may carry any
implication that conduct which is not in fact culpable and reckless is to be
treated, for the purposes of cases involving drug-related deaths as if it were
such conduct, we are unable to accept that as an accurate statement of the
law. In particular, if - as in the
question put to the court - the only evidence is that an accused (unlawfully)
supplied a controlled drug to a person who subsequently died by voluntarily
ingesting it (page 178G), that without more would not, in our opinion,
provide a sufficient evidential basis for a charge of culpable homicide. We give our reasons for that conclusion
below. If, on the other hand, the court
was placing reliance, as it appears to have done, on the terms of the averments
in the libel (see page 185C) that the supply was not only unlawful but
also was of a "potentially lethal drug ... supplied in a lethal quantity", that
might, depending on the particular circumstances, including any relevant knowledge
on the part of the accused of the likely effects of ingestion, be a sufficient
basis for a charge of culpable homicide.
[27] Macdonald, The Criminal Law of Scotland (5th
ed.) at page 96 identifies three kinds of culpable homicide. The first (what is now commonly described as
voluntary culpable homicide) does not for present purposes arise. He continues:
"Second, homicide by the doing of an
unlawful act, where death could not reasonably be foreseen as the probable
consequence of the act.
Third, homicide from negligence, or
from rashness in the performance of lawful duty."
For these propositions he refers to Hume and to Alison. Hume
(vol.i, pages 233-4) also makes a tripartite division of culpable
homicide, though the division does not exactly match Macdonald's classification. The second and third are as follows:
"2 It
has also been mentioned, that it falls under the same consideration, if death
ensue on the doing of some unlawful and prohibited thing; such as the discharging of fire-arms, or the
throwing of stones or fire-works in the streets of a city, or the whipping of a
horse there, so that it springs forward, and kills a passenger.
3 A
third sort of culpable homicide, of which also some notice has been taken, and
which may sometimes stand higher in the scale of guilt, is where death ensues
by misadventure, without any intention to kill, and in an unforeseen and
unlikely way; but withal in pursuance of
a purpose to do some sort of bodily harm ...".
Hume then gives a number of illustrations
of his third category. Most of these are
concerned with relatively minor assaults resulting unexpectedly in deaths. However, at page 237 he notices a case
involving the administration of a harmful substance. He says:
"A case somewhat different from any
of these, as to the degree of harm intended, was tried at
In a footnote reference is made to the case of John Ferguson and John Eadie (
[28] Gordon, Criminal Law (3rd ed.), after
discussing homicide in the course of an assault, goes on (at paras.26.24-.27)
to discuss homicide in the course of other unlawful employment (or unlawful act). At para.26.26 the authors discuss acts (other
than that of assault) which involve unlawful personal injury, or at least the
intentional infliction of such an injury.
Where death ensues, a charge of culpable homicide may in such
circumstances be made out. The authors
then (at para.26.27) go on to discuss "other crimes". Apart from Lord Advocate's Reference (No.1 of 1994), three cases are there mentioned. HM
Advocate v Finnegan (High Court
of Justiciary, March 1958, unreported) can, on the facts mentioned, be regarded
as a case of death caused recklessly. In
Lourie v HM Advocate 1988 S.C.C.R. 634 the appeal court, in light of a Crown
concession, expressly did not enter upon a discussion of the requirements of
culpable homicide; the case gives little
support to the proposition that unlawful but non-reckless conduct which is not
directed in some way against the victim suffices for culpable homicide. But it is unnecessary for the purposes of
this case to reach any concluded opinion on that matter. The remaining case mentioned is Sutherland v HM Advocate. There Lord Sutherland
explained to the jury that, for "unlawful act" culpable homicide, the act would
require to be an offence against the person.
Because that was not made out on the evidence, he directed them to
disregard the first ground on which the Crown sought a verdict of culpable
homicide. He directed them that the only
basis on which they could return such a verdict in that case was, in effect,
recklessness resulting in death. At the
appeal stage there was no discussion of the ground which Lord Sutherland had
directed was not open to the Crown.
[29] With the
possible exception of Lord Advocate's
Reference (No.1 of 1994), where the view of the court is open to
interpretation, there appears to be no support for the view that unlawful act
culpable homicide can be made out except where, as in assault or analogous
cases, the conduct is directed in some way against the victim. In particular, there seems no basis for such
a charge founded simply on a statutory contravention resulting in death. If, of course, the contravention is reckless,
such a charge will be well-founded (see, for example, Finlayson v HM Advocate).
[30] The Advocate
depute argued, ultimately somewhat faintly, that the supply of a controlled
drug to another in contravention of section 4(3)(b) of the Misuse of Drugs
Act 1971 could be regarded as an offence against that other. But we are not persuaded that that is
so. Although the offences created by
that Act have no doubt as part of their purpose the avoidance of damage to
health or of death by the ingestion of controlled drugs, the act of supplying
itself cannot, in our view, be regarded as an offence against the persons
supplied - in the sense of offences against the person discussed in the context
of culpable homicide. It may be noted
that the Advocate depute accepted that if death did not result but only injury
(however serious) no relevant charge could be brought save of culpable and
reckless conduct (as in charge 2 in relation to the second
appellant). This, in our view,
immediately exposes the weakness of his position on this matter. In these circumstances we are satisfied that
a charge libelling culpable homicide in the context of the supplying (or the
administration of) a controlled drug is relevant only if the Crown offers to
prove that the supplying (or the administration) of the drug was in the
circumstances reckless. The indictments here
as now amended expressly include the adverb "recklessly". Whatever the prior procedure in Finlayson v HM Advocate, when the case was, on another point, considered on
appeal, the charge was taken to be "one of culpable homicide by injecting a
controlled drug recklessly into the
person of the victim" (1979 J.C. at pages 34-5) (emphasis added).
[31] There was some
discussion before us as to whether it was necessary for the Crown expressly to
aver that the conduct was reckless.
Reference was made to paragraph 3 of Schedule 3 to the Criminal
Procedure (
"It shall not be necessary to allege
that any act or commission or omission charged was done or omitted to be done ...
'culpably and recklessly' ... but such qualifying allegation shall be implied in
every case".
That provision is derived ultimately from section 8 of
the Criminal Procedure (
Discussion - Causation
[32] These cases were remitted to a bench of
five judges primarily on the issue of causation, with particular reference to
the significance to that issue of the concept in the criminal law of
"autonomous beings". In the context of
drug-related deaths the most recent ruling in
"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] Camb.LJ. 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 and the Law, 2nd
ed. (1985), page 326, Hart & 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 W.L.R. 104, 115. The principle is fundamental and not
controversial."
Although Lord Rodger of Earlsferry was a member of the Committee,
no reference was made to any Scottish authority; nor, so far as appears from the report, was
any cited in argument to their Lordships.
[33] In the context
of crimes which are founded on reckless conduct the Scottish courts have
adopted a different approach. In Khaliq v HM Advocate the High Court of Justiciary was concerned with the
relevancy and specification of a charge of culpable and reckless conduct
involving the supply by shopkeepers to children under sixteen of glue-related
solvents together with containers "for the purpose of inhalation of the vapours
of said solvents from within said containers, well knowing that said children
intended to use said solvents and said containers for the said purpose and that
the inhalation by said children of the vapours of said solvents was or could be
injurious to the health of said children and to the danger of their lives and
in consequence of your said actions you did cause or procure the inhalation by
said children of vapours from said quantities of solvents to the danger of
their health and lives ...". The
appellants argued that that charge did not disclose any crime known to the law
of
"There is ample authority for the
view that the wilful and reckless administration of a dangerous substance to
another causing injury or death is a crime at common law in
As
[counsel for the appellant] has repeatedly reminded us, however, this is not an
administration case. What is libelled is
culpable, wilful and reckless supply, and the injuries with which the charge is
concerned were self-inflicted by the voluntary acts of the persons supplied,
after the solvents and the containers had passed out of the immediate control
of the appellants. I am not persuaded
that these considerations are fatal to the relevancy of charge (1) in this
case. Whether the supply was a cause of
the injury is a matter of fact and in the particular circumstances averred it
would, in my opinion, be open to the judges of fact to hold that the supply not
merely of solvents, but of what the Press vividly describe as 'glue-sniffing
kits', was a cause of injury to the persons supplied who proceeded to employ
them for the known, intended, and expected purpose, namely inhalation of the
injurious vapours of the solvents from the containers. That the persons supplied were children is not,
as I have already indicated, essential to the relevancy of the charge, but the
age of such persons in a charge of this kind will be a circumstance which may
be taken into account in deciding whether the supply complained of ought upon
the evidence to be held to have been a cause of the injury suffered. Turning to the more important obstacles to
relevancy founded upon on the appellants' behalf, it is my opinion that the
facts and circumstances libelled in charge (1) are such as to permit the
judges of fact to conclude that there was no material distinction between what
the appellants are said to have done, and direct administration of the noxious
fumes. The supply of 'glue-sniffing
kits' was sought or invited for the particular purpose of abuse of the
solvents. The purpose and the intention
of the supply libelled was that the solvents should be abused, employing the
means of abuse provided. The solvents
were, it is averred, abused, and this could be regarded as the expected,
intended and probable consequence of the supply. There are undoubtedly circumstances in which
the distinction between supply and administration of a noxious substance will
not be material, and I do not regard the distinction as material for the
purpose of relevancy in the particular circumstances of this case. As the Lord Justice-Clerk (Aitchison) pointed
out in the case of HM Advocate v Semple 1937 J.C. 41 at p.44: 'Of course supply by itself does not amount to
a crime, but here it is coupled with use, and the distinction between supply
and administration does not appear to me to be material in a case where the
supply is closely related to the use by words of instigation or by some act of
instigation on the part of the panel ...'.
In this case, upon the facts libelled, it would in my opinion be open to
the judges of fact to conclude that the supply libelled was closely related to
the use, even in the absence of the words of instigation on the part of the
suppliers. The purpose of the supply was
no proper purpose and, it may appear, was obviously intended to be carried
out. It was abuse of the solvents and,
in the circumstances averred, no words or acts of instigation are necessary to
demonstrate the close relationship of the supply and the abuse which
occurred. I am fully satisfied, further,
that it is not fatal to the relevancy of charge (1) that a voluntary act on the
part of the recipients of the 'glue-sniffing kits' was required to produce the
injurious consequences which they are alleged to have suffered. The causal link is not, of necessity, broken
by that circumstance. In a supply case
the extent to which the supplier may have a locus
poenitentiae, and the extent to which extraneous and intervening
circumstances dictate or influence the actions of the recipient of the supply,
are, of course, not unimportant considerations.
The doctrine of the novus actus
interveniens familiar in the field of delict or the law of contract, if it
is to be relevant and exculpatory, must involve that the intervening actus is truly novus and [ultroneous] (see, for example the speech of Lord Wright
in The Oropesa [1943] p.32 quoted Finlayson v HM Advocate cit. sup.). Where, as in the case of charge (1),
there is no intervention of third party action, or of an unexpected event
entirely external to the transaction between the parties directly concerned,
there appears to be no ground upon which it can be successfully maintained,
upon the basis of novus actus
interveniens, that the inhalation of the noxious fumes of the solvents by
the voluntary and deliberate acts of the recipients of the supply, is fatal to
the relevancy of such a charge as is exemplified by charge (1) in this
indictment. According to the facts and
circumstances libelled in this charge, which is of a course of conduct over a
long period, the actions of the recipients which it was known that they
intended to carry out, were entirely to be expected, and were, indeed, the
known specific purpose of the supply.
The true question is whether the charge relevantly libels a causal
connection between the alleged supply and the abuse and its consequences, that
is to say, whether it would be permissible for the judges of fact to conclude
that the supplier provided not merely the occasion for the abuse of the
solvents by the recipients, but was a cause of that abuse. To that question, for the reasons which I
have endeavoured to explain, I give an affirmative answer."
Lords Cameron and Dunpark agreed.
[34] In Ulhaq v HM Advocate (another case of culpable and reckless conduct) the
purchasers of the noxious solvents and their containers were adults. No objection was taken to the relevancy or
specification of the charge but at the conclusion of the Crown case the
submission was made that there was no case to answer having regard to the ages
of the persons to whom the substances were supplied, the absence of evidence of
instigation by any words or deeds of the appellant and the absence of sale or
provision of solvent-abuse kits or similar appurtenances. The sheriff rejected that submission and the
appellant was subsequently convicted.
The principal issue in his appeal was whether the sheriff had been wrong
to reject it. Having summarised the
evidence that would have entitled the jury to conclude that the appellant knew
that the purchasers intended to use the items for the purpose of inhalation and
that he was aware that this would be injurious to their health, the court
(presided over by Lord Justice General Hope, as he then was) said, under
reference to Khaliq, that the
argument that it made all the difference in Ulhaq
that the purchasers were adults and not children must be rejected. The court at page 615 continued:
"Now in this case there was, as we
have said, no challenge to the relevancy or specification of the charge. The Crown led sufficient evidence to
establish all the elements which were libelled in it, relying upon quantity,
repetition and the nature of the items rather than the ages of the purchasers
as the basis upon which the necessary inferences were to be drawn. The essence of the charge therefore was that
the appellant knew that the purpose of the acquisition of the solvents was
their abuse and that the supply of them to their recipients was a cause of that
abuse. That is sufficient for the
conduct to be criminal, because once that is established then there is no
material distinction between the supply of the solvents and the direct
administration of their fumes to the purchasers which, it was accepted, would
plainly be criminal. So neither the age
of the purchaser nor the supply of kits to assist inhalation [is]
essential. As the learned advocate-depute
put it, they do not provide the measure of the offence. They are simply factors, whose weight will
vary with the circumstances. Their
presence may make it easier to draw the inference that the supply was a cause
of the abuse, but their absence does not mean that that inference cannot be
drawn. In our opinion the sheriff was
right to reject the submission that there was no case to answer and to leave it
to the jury to decide whether, on the evidence, the supply was conducted in
this case in the knowledge that the substances would be abused and was proved
therefore not merely to be the occasion of the abuse but its cause."
[35] In Lord Advocate's Reference (No.1 of 1994)
the court recognised that Khaliq and Ulhaq were not cases of culpable
homicide but that there were similarities "between charges of culpable and
reckless conduct on the one hand and cases of culpable homicide based on culpable
and reckless conduct" (1996 J.C., page 79E-F). It held that the trial judge was in error in
holding that Khaliq (and Ulhaq) could be distinguished and in
acquitting the accused.
[36] None of these
decisions is binding on this court as presently constituted. Nor, of course, are the observations by the
House of Lords in R v Kennedy (No.2). But they are all entitled to respect.
[37] In a civil
case (McTear v Imperial Tobacco Limited), in which an ultimate consumer alleged
that the manufacturer and distributor of cigarettes had been negligent, Lord
Nimmo Smith at paras.[7.178] - [7.179] said:
"Adults of full age and not suffering
from legal incapacity are equal in the eyes of the law ... There is no duty to save people from
themselves. If they are, or may
reasonably be supposed to be, in possession of information about harm which
they may suffer if they choose to follow a particular course of action, the
responsibility is theirs alone."
These observations, the soundness of which we have no reason to
doubt, were made in the context of a discussion as to whether a duty of care
was owed by the defenders to the pursuers, not in the context of causation -
which on other grounds was held not to have been made out.
[38] In the context
of deaths which followed criminal conduct directed against the victim Gordon, Criminal Law (3rd ed.) at
para.4.54 notices two Scottish cases at first instance: HM
Advocate v John Robertson (1854)
1 Irv. 469 and HM Advocate v Patrick Slaven and Others (1885) 5
Couper 694. In the former case it was
averred that the female victim had been assaulted by the accused and that,
having been terrified by the violence used towards her, she had committed
suicide by drowning herself. It was not
averred that the accused had killed her.
Lord Handyside (one of the two trial judges) observed that the suicide
was not on the averments connected with the assault as an immediate
consequence. He added at page 470:
"If the act of suicide was the
immediate consequence of the violence, I am not prepared to say what such a
state of facts might warrant. I do not
say that it would amount to culpable homicide, although it would certainly come
very near to it. But the prosecutor does
not say that the charge is one of culpable homicide. ...".
The averment related to the suicide was in these
circumstances held to be irrelevant. The
other trial judge (Lord Cowan) agreed with Lord Handyside. In Patrick
Slaven the accused were alleged to have assaulted a woman with intent to
ravish her and to have chased her when she tried to escape; in the course of that chase she fell over a
cliff and was killed. The trial judge
(Lord Young), without finding it necessary to hear a reply, held the libel of
culpable homicide to be relevant. He
said at page 696:
"... if the woman met her death in
endeavouring to escape from the assault of these men, then her death was the
consequence of their unlawful and violent conduct towards her."
[39] Much more
recently Lodge Hodge, sitting as a trial judge, had to charge a jury in circumstances
where there was evidence that the two accused had assaulted the victim in his
third floor flat, that they had then left, locking the door and taking the key,
and that the victim, apparently in an attempt to reach the street, had climbed
out of the window, fallen and been killed (McDonald
v HM Advocate 2007 S.C.C.R. 10). The accused were charged with culpable
homicide; an objection (presumably to
the relevancy of the charge) had earlier been repelled (page 11B-C). In directing the jury Lord Hodge said to
them:
"[T]o find an accused guilty of
culpable homicide you must be satisfied that there is a direct causal link
between the unlawful act, in this case the alleged assault, and the victim's
death ... What is the casual link? To find a causal link you must be satisfied
that but for the unlawful act, in this case the alleged assault, the victim
would not have died. The unlawful act
need not be the only cause of death but it must be one of the causes. In other words, in this case if you were not
satisfied that the assault contributed significantly to the deceased's decision
to climb out the window, then there would be no causal link and the accused, if
guilty of a serious assault, would not be guilty of culpable homicide, but if
you are so satisfied you would then need to go on to consider whether the
causal link was direct or indirect. Some
acts may pass the 'but for' test but be considered too remote in time or other
circumstances to be direct causes ..."
He then gave the jury a number of illustrations of what
would, or would not, amount to a direct causal link. He continued:
"But not every voluntary act by a
victim breaks the chain of causation in law.
In law the person who attacks another person takes his victim as he
finds him. In other words, if the victim
is old or infirm or has a weak heart and dies as a result of an assault which
would not seriously injure a person in robust health, the victim's weakness is
no defence to the charge of culpable homicide.
Similarly, if the victim is mentally ill or is under the influence of
alcohol or drugs when assaulted or disoriented by the assault and does
something directly in response to the assault which a more rational person
would not do, the fact that his act was voluntary in the sense that it was done
intentionally would not necessarily break the chain of causation. A respected historic textbook on Scottish
criminal law (Macdonald at page 100) suggests that it may be culpable
homicide where a person in consequence of a flight created by violence does
some act which caused his death, thus if a person pursued by an armed attacker
throws himself into water in an attempt to escape and drowns, the armed
attacker may be guilty of culpable homicide.
In that case the victim's behaviour was an immediate response to the
threat of violence. There is also case
law which suggests that if a person commits suicide as an immediate response to
violence against him or her, that may still be culpable homicide, but, of
course, one must look to the circumstances of each case as revealed in the
evidence."
[40] One of the
accused absconded during the course of the trial. The other was convicted of culpable homicide
and appealed against that conviction. In
refusing that appeal the
"In his charge to the jury the trial
judge gave very full and careful directions on what was required to establish a
causal link between the unlawful act and the death of the victim before a
verdict of culpable homicide might be returned.
Since no criticism is made by counsel for the appellant of the trial
judge's directions on causation, it is unnecessary to set out these directions
at length. Put shortly, the trial judge
instructed the jury that they required, first, to be satisfied that 'but for'
the assault on him the victim would not have died. However, the 'but for' test was only the
initial test and the jury then had to consider whether the unlawful act was a
direct or indirect cause. As he put it,
some acts may pass the 'but for' test but be considered too remote in time or
other circumstances to be direct causes and would thus fail to satisfy the
causal link. If there were a direct
causal link, it would not matter that the assailant might not reasonably have foreseen
that death would result or how it would occur;
but if the victim of the assault reacted in a wholly unforeseeable or
unreasonable way that would mean that the attack would cease to be a direct
cause of the death and thus the requisite causal link would not be
established."
[41] The issue on
appeal was whether there was sufficient evidence to allow the jury to conclude that
the necessary causal link had been established.
The court held that there had been such a sufficiency and refused the
appeal. Relevant factors were the short
interval of time (not more than thirty minutes) between the conclusion of the
attack upon the victim and his fall from the window and the evidence which
yielded the inference that the victim had been trying to escape
(para.[18]). There is nothing in the
[42] These Scottish
authorities tend to suggest that the actions (including in some cases
deliberate actions) of victims, among them victims of full age and without
mental disability, do not necessarily break the chain of causation between the
actings of the accused and the victim's death.
What appears to be required is a judgment (essentially one of fact) as
to whether, in the whole circumstances, including the inter-personal relations
of the victim and the accused and the latter's conduct, that conduct can be
said to be an immediate and direct cause of the death.
[43] In R v Kennedy
(No.2) their Lordships referred to classic academic statements on the
matter of the autonomy of human actions, including passages from "Finis for Novus Actus" by Professor Granville Williams and Hart and Honoré - Causation and the Law (2nd
ed.). In Causation, Homicide and the Supply of Drugs (2006) 26 Leg. Studies
139, Professor Timothy H Jones offers a critique of Hart and Honoré's analysis
of the law of causation and considers Scots as well as English judicial
authorities. In this article, issued
after R v Kennedy (No.2) had been heard in the Court of Appeal but before the
hearing in the House of Lords, Professor Jones acknowledges that, in England
and Wales, the principle of voluntary intervention still represents a
substantial conceptual barrier to holding the drug dealer criminally
responsible for the death of the drug user (page 152), but suggests that
the Scottish approach "may not be quite so pragmatic and devoid of principle as
some might think" (page 153).
Professor Jones does not stand alone in offering a critique of Hart and
Honoré - see J Feinberg, Doing and
Deserving, Chapter 7 (Princeton University Press, 1970).
[44] In R v Kennedy
(No.2) the drug user had "freely and voluntarily self-administered" the
controlled drug from which he died. In
answering the question posed by the Court of Appeal, Lord Bingham posited such
an individual being a "fully informed and
responsible adult" (emphasis added).
Difficult questions (some of them matters of degree) may arise in
deciding whether the drug user who died was fully informed in the relevant
sense. The answers to such questions may
in turn impinge upon the issue of causation.
As Professor Jones points out (op.
cit. at page 142) there must be some doubt as to whether the fifteen year
old prostitute victim in R v Khan [1998] Crim. L.R. 830, coming to
heroin probably for the first time, should have been regarded as truly capable
of consenting to the risks inherent in heroin use; her assumption of risk, as he says, "seems at
the borderline of voluntariness". There
may be many other cases, short perhaps of duress or necessity and also of
deception or mistake, where the vulnerability of the drug user to the actings
of the drug supplier will be relevant to whether the direct causal link is made
out.
[45] Moreover,
while causation is distinct from the mens
rea of the accused, the foundation in Scots law of the charge of culpable
homicide in cases of this kind (namely, recklessness) is not, in our view,
wholly irrelevant. The law can with
justification more readily treat the reckless, as against the merely unlawful,
actor as responsible for the consequences of his actions, including
consequences in the form of actings by those to whom he directs such
recklessness. Reckless conduct, judged
in the context of any vulnerability of the victim, may of its nature have a
compelling force. While, as has been
observed in the context of civil actions (McKew
v Holland & Hannen & Cubitts (Scotland)
Limited, per Lord Reid at page 25), unreasonable conduct will break
the chain of causation, human conduct or reaction which is the very object of
the accused's actions may not. Subject
always to questions of immediacy and directness, the law may properly attribute
responsibility for ingestion, and so for death, to the reckless offender.
[46] Different
jurisdictions have adopted different solutions to this difficult problem. In
[47] In
"The law has always had to come to
some kind of compromise with the doctrine of causation. The problem is a practical rather than an
intellectual one. It is easy and usual
to be bedevil it with subtleties, but the attitude of the law is that
expediency and good sense dictate that for practical purposes a line has to be
drawn somewhere, and that, in drawing it, the Court is to be guided by the
practical experience of the reasonable man rather than by the theoretical
speculations of the philosopher."
[48] We see no
reason why the criminal law in
The circumstances of
the present cases
[49] As earlier narrated, certain
facts bearing on the present cases have been agreed. It is convenient to deal first with those
relevant to the second appellant's case.
[50] As the
allegation is one of administration by injection it is difficult to see what
issues could, in the agreed circumstances of this case, properly be said to
remain as a matter of relevancy on the question of causation. There remain, however, considerations on the
question of alleged recklessness. The
second appellant was an acquaintance both of the deceased and of her
partner. The length and nature of that
acquaintance, including any influence exerted by the appellant on his
acquaintances, are as yet unexplored in evidence. Also unexplored is the knowledge of the
deceased and her partner of the nature and extent of the hazard they were
undergoing by subjecting themselves, apparently for the first time, to injection
of heroin. This appellant's relevant
state of knowledge of the potentially fatal consequences of his acts of
injection remains to be examined. All
these matters touch upon this appellant's state of mind at the relevant time.
[51] The act of the
first appellant in supplying the controlled drug which contributed to the death
of the deceased might, on one view, be considered to be more remote from that
death than the second appellant's administration by injection. But the Crown offers to prove that that
supply was for the very purpose of (more or less immediate) ingestion by the
recipient. Depending on the facts and
circumstances proved (which will include factors bearing on influence and on
knowledge), a causal link may be established.
It cannot be said at this stage, even taking account of the agreed facts
in so far as they go, that a jury, properly directed, could not find the causal
link proved.
Disposal
[52] In the whole
circumstances these appeals are each refused.