R v Kennedy (No.2) [2008] 1 AC 269

Kennedy supplied heroin and prepared a syringe used by Bosque, an adult of sound mind, who voluntarily injected himself and died. The House of Lords held that self-injection by a fully informed adult breaks the chain of causation, so unlawful act manslaughter was not made out and the conviction was quashed.

Facts

The appellant, Kennedy, lived in a hostel with the deceased, Marco Bosque, and another resident. On 10 September 1996 Kennedy visited their room. Bosque, who was drinking, asked Kennedy for heroin. Kennedy prepared a dose of heroin and loaded it into a syringe.

According to the agreed facts, Kennedy then gave Bosque the ready-loaded syringe. Bosque injected himself, returned the empty syringe to Kennedy, and Kennedy left the room. Bosque then appeared to stop breathing. He was taken to hospital but pronounced dead. The cause of death was inhalation of gastric contents while acutely intoxicated by opiates and alcohol.

Kennedy was convicted at the Central Criminal Court of (1) unparticularised manslaughter and (2) supplying a Class A drug contrary to section 4(1) of the Misuse of Drugs Act 1971, and sentenced to five years’ imprisonment (manslaughter) and three years concurrent (supply). His first appeal against conviction for manslaughter was dismissed. The Criminal Cases Review Commission later referred the manslaughter conviction back to the Court of Appeal, which again dismissed the appeal. Kennedy then appealed to the House of Lords.

Issues

The certified question from the Court of Appeal encapsulated the central issue:

“When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?”

The House had to determine:

• What unlawful act could properly ground a conviction for unlawful act manslaughter on these facts.
• Whether Kennedy’s conduct amounted to “administering” or “causing to be administered to or taken by” a noxious thing under section 23 of the Offences against the Person Act 1861.
• How principles of causation and personal autonomy apply where a fully informed adult voluntarily self-injects drugs.

Judgment

Unlawful act manslaughter and section 23

The House reaffirmed that for unlawful act manslaughter it must be shown, among other things, that the defendant committed an unlawful criminal act which was a significant cause of death. The act of supplying heroin, without more, could not in itself physically harm the deceased or cause death, as the Court of Appeal had previously recognised in R v Dalby. Accordingly, the manslaughter count could not be founded solely on supply.

Both parties accepted that, if there were an unlawful act capable of founding manslaughter, it would have to be an offence under section 23 of the Offences against the Person Act 1861. The text of section 23 (as effectively in force) was set out, including its three distinct offences:

“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of [an offence] …”

The House identified three separate offences under section 23:

• (1) Administering a noxious thing to another person.
• (2) Causing a noxious thing to be administered to another person.
• (3) Causing a noxious thing to be taken by another person.

Heroin was accepted as a noxious thing. Offence (1) covers direct administration, such as injecting someone. Offence (2) typically involves an innocent third party administering the substance to the victim, having been induced by the defendant. Offence (3) applies where the victim takes the substance, provided the defendant causes it to be taken and the victim does not make a voluntary and informed decision to take it, for example by secretly lacing food.

The Crown accepted that, on the facts, if Kennedy had not committed offence (1), he could not be guilty of offences (2) or (3). The House explained that this concession was correct once principles of autonomy and causation were properly applied.

Personal autonomy and causation

The House emphasised that the criminal law generally presumes free will in informed adults of sound mind. Subject to recognised exceptions (such as youth, duress, necessity, deception, mistake or reduced responsibility), such persons are treated as autonomous decision-makers. The opinion cited and approved academic statements to the effect that a free, deliberate and informed intervention by a second person ordinarily constitutes a new chain of causation (novus actus interveniens), breaking the causal link from an earlier actor.

The House distinguished its earlier decision in Environment Agency v Empress Car Co, which concerned strict liability for pollution. That case turned on attributing responsibility for pollution under a specific statutory regime to protect controlled waters; it did not alter general principles of causation in criminal law relating to autonomous human acts. It was therefore inappropriate to apply Empress Car to section 23 offences involving voluntary self-administration of drugs.

In particular, the Court of Appeal in R v Finlay had wrongly relied on Empress Car to hold that a defendant who prepared a syringe and handed it to the victim, who then self-injected, had caused the administration. Such reasoning conflicted with the rules on personal autonomy and informed voluntary choice.

Role of the deceased’s voluntary act

The House stressed the significance of the fact that Bosque committed no offence by injecting himself with heroin. It referred to the Court of Appeal decisions in R v Dias and R v Rogers and accepted that self-injection by the drug user is not itself criminal.

Because Bosque’s self-injection was not an offence, he was not a principal offender. Kennedy therefore could not be liable as an accessory or on a joint enterprise basis. The House stated that:

“The finding that the deceased freely and voluntarily administered the injection to himself, knowing what it was, is fatal to any contention that the appellant caused the heroin to be administered to the deceased or taken by him.”

The key factual characterisation, accepted by all, was that the heroin was “freely and voluntarily self-administered” by Bosque.

Whether Kennedy “administered” the heroin

The Crown’s only remaining argument was that Kennedy had himself “administered” the heroin under offence (1) of section 23 by preparing the syringe and handing it to Bosque for immediate injection. The House rejected a broad reading of “administer” that would encompass such preparatory or facilitative acts when the ultimate injection was carried out by the victim himself.

Section 23 draws a clear distinction between a noxious thing being “administered to” a person and being “taken by” a person. On the agreed facts, Bosque decided for himself to inject the heroin, knowing what it was, and carried out the injection. This was his own act, not Kennedy’s.

The House therefore held that Kennedy did not administer the drug, nor did he cause it to be administered to or taken by Bosque within the meaning of section 23.

Rejection of the Court of Appeal’s “joint administration” approach

On the second appeal, the Court of Appeal had reasoned that the jury could properly find that Kennedy and Bosque were jointly engaged in administering the heroin, describing their conduct as a “combined operation” for which they were jointly responsible. It drew an analogy with two nurses jointly involved in the steps of giving a lawful injection, both of whom could be regarded as administering the drug.

The House held that, although it is possible to imagine factual situations where two people could truly be said to act together to administer an injection, this was not such a case. On these facts, as in Dalby and Dias, Kennedy supplied the drug and made it ready, but Bosque then chose, with full knowledge, whether or not to inject himself.

The heroin was, correctly, described as self-administered, not jointly administered. The Court of Appeal’s conclusion that the pair were acting in concert in administering the heroin was therefore incorrect.

Treatment of earlier authorities

The House noted that in R v Cato there was no difficulty because the defendant had actually injected the deceased. In R v Dalby the Court of Appeal had already held that mere supply followed by self-injection could not sustain manslaughter. In the present case, the first appeal had mistakenly treated Bosque’s self-injection as an unlawful act and considered Kennedy’s assistance and encouragement as enough to found manslaughter.

R v Dias recognised that a free, informed decision by the victim to inject himself would probably break the chain of causation, and corrected the error regarding the lawfulness of self-injection. The House approved that approach.

In contrast, the Court of Appeal decision in R v Rogers, where the defendant applied a tourniquet while the deceased self-injected, was held to be wrong. The House accepted that there is a difficult borderline between contributory acts and actual administration, but emphasised that the crucial question is whether the injection itself is the result of a voluntary and informed decision by the person injecting himself. In such a case, the defendant has not administered the drug.

Implications

The House answered the certified question as follows:

“In the case of a fully-informed and responsible adult, never”

Accordingly, where an adult of sound mind freely and voluntarily self-administers a Class A drug that has been supplied by another, and dies as a result, it is not appropriate to convict the supplier of unlawful act manslaughter on the basis of the self-administration. The voluntary act of self-injection breaks the chain of causation from the supplier for the purposes of unlawful act manslaughter based on section 23.

The appeal was therefore allowed, and Kennedy’s conviction for manslaughter quashed. The House also ordered that he should have his costs, in the House and in the Court of Appeal, out of central funds.

The opinion highlighted that much confusion in this area had arisen from a failure to identify precisely the unlawful act founding a manslaughter charge. The House stressed the importance, in serious cases of this kind, of clearly formulating the alleged unlawful act, whether by a separate count under section 23 or by particularising the manslaughter count, in order to ensure accurate legal analysis.

Verdict: Appeal allowed; the conviction for manslaughter was quashed and the appellant was awarded his costs in the House of Lords and the Court of Appeal out of central funds.

Source: R v Kennedy (No.2) [2008] 1 AC 269