Rodgers, R. v

THE VICE PRESIDENT: This appeal raises a short but not easy point. It is: has a defendant, who applies and holds a tourniquet on the arm of a drug abuser, while he injects himself with heroin, any defence to a charge under section 23 of the Offences Against the Person Act 1861 or to manslaughter if death results? The trial judge, Morland J ruled at Plymouth Crown Court on 25th February 2002 that he had not. The defendant thereupon pleaded guilty and was sentenced to 3 years' imprisonment on each count concurrently. This Court, on a reference by the Registrar, granted leave to appeal against conviction.

The facts can be shortly stated. On 22nd July 2001 the appellant, then 33, and Michael Tippett (who became the deceased), then 37, consumed a considerable quantity of cider. The deceased went to buy heroin for both of them and returned at about 3.00 pm with two 100 millilitre syringes, each half full. The deceased injected the appellant with one syringe and then (according to the appellant), with the appellant physically assisting by holding his belt round the deceased's arm as a tourniquet, injected himself. He collapsed with cardiac arrest, never recovered and died eight days later.

The prosecution case was that the appellant, having administered the heroin which caused the death, was guilty on count 1 of administering poison so as to endanger life contrary to section 23 of the 1861 Act and, on count 2, of manslaughter. A prosecution witness said the appellant himself injected the deceased. But the judge's ruling was given on the basis that the appellant's account was correct. He held that the application of the tourniquet was "part and parcel of the unlawful act of administering heroin" that there was (as Mr Lewin conceded before him) no difference from holding the end of the syringe while the deceased pressed the plunger, and that, therefore, there was no defence to either count.

On behalf of the appellant, Mr Lewin submitted to us that the judge was wrong. First, he said there was no unlawful act by the appellant for the purposes of either section 23 or manslaughter. Applying the tourniquet was not an unlawful act by the appellant. The deceased's injection of himself was not an unlawful act. The appellant merely facilitated an act which was not unlawful. He accepted that, provided the appellant's act was unlawful, it would be sufficient to establish manslaughter if it were a significant cause of death. Secondly, he said, Morland J was wrong to rule that there was no issue of causation to be left to the jury: causation is always a matter for the jury, he said. In support of both submissions, Mr Lewin relied on Dias [2002] Cr App R 96, [2001] EWCA Crim 2986 which was reported after the trial judge gave his ruling and in which Kennedy [1999] Crim LR 65, on which Morland J relied, was distinguished. In Kennedy it was held that the appellant had rightly been convicted having handed a loaded syringe to the deceased who injected himself. Part of the reasoning in Kennedy was fiercely criticised by the late Sir John Smith QC ([1999] Crim LR 67 to 68 and Smith & Hogan Criminal Law 10th edition page 444).

For the Crown, Mr Mercer QC accepted that there was no authority precisely in point. He submitted that commission of the section 23 offence would be the unlawful dangerous act sustaining manslaughter. The appellant's application of the tourniquet and the deceased's injection were contemporaneous, inextricably-linked aspects of the administration of the heroin. The appellant in Dias had supplied heroin to the deceased who made a tourniquet and injected himself, but, as the jury had not been directed to consider whether the supply was a substantial cause of death, it could not be said that causation was established. Dias could not be a secondary party because the deceased was not guilty of a criminal offence. Accordingly his conviction was quashed. Section 23, it appears, had not been left to the jury as a basis for conviction (see paragraph 14 of the judgment). Mr Mercer submitted that Cato 62 Cr App R 41 establishes that the injection of others is a criminal offence and active participation in injuring others should not, as a matter of public policy, be condoned. If the appellant's conduct was a contemporaneous unlawful act continuing up to the time of the injection, causation questions fall away.Mr Mercer also referred to McShane [1997] Crim LR 737.

It was common ground between counsel that the crucial question at the heart of this appeal is whether the appellant's conduct was that of a principal: if so, he was guilty of both offences. If, on the other hand, his conduct was that of a secondary party, merely aiding the deceased, he could not be guilty of either offence, because no offence was committed by the deceased. We respectfully agree with paragraphs 21 and 22 of the judgment in Dias and accept Sir John Smith's criticisms of the reasoning in Kennedy: in so far as that reasoning was based on self-injection being an unlawful act, it was wrong. This conclusion accords with this Court's judgment in Richards [2002] EWCA Crim 3175, CACD transcript 12th December 2002.

In our judgment, assessment of the appellant's conduct as being that of a principal or secondary party cannot properly be made by having regard merely to the application of the tourniquet in isolation. It is artificial and unreal to separate the tourniquet from the injection. The purpose and effect of the tourniquet, plainly, was to raise a vein in which the deceased could insert the syringe. Accordingly, by applying and holding the tourniquet, the appellant was playing a part in the mechanics of the injection which caused death. It is therefore, as it seems to us, immaterial whether the deceased was committing a criminal offence.

There is nothing in Dias which is inconsistent with this conclusion. Indeed, on the contrary, paragraph 25 of the judgment expressly envisages that, even where a victim injects himself, the supplier of heroin may be guilty of manslaughter, provided causation is established. Edwards (unreported, CACD transcript 28th April 1998) is to like effect. A fortiori, as it seems to us, a person who actively participates in the injection process commits the actus reus and can have no answer to an offence under section 23 or a charge of manslaughter if death results. Once the appellant is categorised as such a participant, it being common ground that death resulted from the injection, no question arises in relation to causation.

The judge was therefore correct and the appeal against conviction must be dismissed.

As to sentence, Mr Lewin stresses the prompt guilty plea after the judge's ruling and the fact, accepted by the judge, that the appellant did not supply the drug. Mr Lewin referred to the level of sentence indicated in Cato of 18 months to 2 years for a defendant under 21 and to Clarke and Purvis [1992] 13 Cr App R(S) 552, where, on a plea of guilty, a sentence of 5 years was reduced to three-and-a-half years. But we are unpersuaded that, in today's climate, a sentence of 3 years was excessive:(see for example Johnson [1996] 1 Cr App R(S) 85, Edwards above and Davidson (unreported, CACD transcript 22nd March 2001) in each of which sentences of 5 years for manslaughter from heroin injection were held to be appropriate even, in Johnson and Edwards, following pleas of guilty. The appeal against sentence is therefore dismissed.

MR MERCER: There is nothing further to add from the Crown's point of view.

MR LEWIN: Nothing for the defence. Thank you very much.