Kennedy v R.

This appeal comes before this court as a result of a reference by the Criminal Cases Review Commission (“the Commission”) under S.9(1) of the Criminal Appeal Act 1995. The principal point which the appeal raises is one which has been before this Court on a number of occasions in recent years. The views which have been expressed by differing constitutions of this court on the point have differed, at least in emphasis, and one of the considerations that the Commission has taken into account in making this reference, is the hope that our decision will help to clarify the law or lead to an appeal which will have that effect.

The point that gives rise to difficulty is as to when it is 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 self administered by the person to whom it is supplied, and the administration of the drug then causes his death.

The appellant, Simon Kennedy (“the appellant”), was involved in the supply of heroin to Marco Bosque (“the deceased”). The deceased shared a room at a hostel with Andrew Cody, where the appellant was also a resident. The appellant prepared a “hit” of heroin for the deceased in that room and gave him the syringe ready for injection. The deceased injected himself and returned the syringe to the appellant. The appellant left the room. The heroin resulted in the deceased’s breathing being affected. Although an ambulance was summoned, the injection resulted in the death of the deceased.

According to Cody, the deceased had told the appellant that he wanted “a bit to make him sleep” and the appellant told the deceased to take care that he did not go to sleep permanently.

The appellant was tried at the Central Criminal Court on 26 November 1997. He was convicted of manslaughter and supplying a Class A controlled drug to another. He was sentenced to 5 years’ imprisonment on the count of manslaughter and 3 years’ imprisonment, concurrent for the offence of supplying a Class A controlled drug. On 31 July 1998, this court, presided over by Lord Justice Waller who was sitting with Mr Justice Hidden and His Honour Judge Rivlin QC, dismissed the appellant’s appeal against his conviction for manslaughter (R v Kennedy [1999] Crim LR 65).

The Commission made their reference because:

In support of their reference, the Commission have provided a detailed and very helpful Statement of Reasons examining the relevant authorities, which we have found of considerable assistance.

The jury were handed by the trial judge a series of questions to assist them to consider the 2 counts on the indictment (count 1: being the manslaughter count and count 2: the supplying count). The questions were in these terms:

“Count 2 Are we sure the Defendant on the 10^th September 1996 deliberately supplied what he knew to be heroin to Marco Bosque?

If No-not guilty to Counts 1 and 2.

If Yes-guilty Count 2.

Count 1

1.

Are we sure the Defendant prepared what he knew to be a heroin mixture for Bosque?

If No-not guilty.

If Yes-Consider.

2.

Are we sure the Defendant handed the heroin to Bosque for immediate injection?

If No-not guilty.

If Yes-Consider.

3.

Are we sure the Defendant’s act was one which all sober and reasonable people would inevitably realise was bound to subject Bosque to the risk of harm, albeit, not serious harm?

If No-not guilty.

If Yes-Consider.

4.

Are we sure that the Defendant’s act was a significant cause of death?

If No-not guilty.

If Yes-guilty of manslaughter.”

We draw particular attention to the reference to “immediate injection” in the questions.

The trial judge directed the jury in the following terms:

“Members of the jury, you will start by considering count 2 and you will ask yourselves: are we sure the defendant on 10^th September 1996 deliberately supplied what he knew to be heroin to Marco Bosque? This means, in the circumstances of this case, that before convicting the defendant, you must feel sure that the defendant brought the heroin into Bosque’s room, knew it was heroin and supplied it to Bosque. If the answer to the question on count 2 is ‘no’, then you find the defendant not guilty to counts 1 and 2. (So you will see why you must consider count 2 first.) If the answer is ‘yes’, then he is guilty on count 2. Then you go on to consider count 1, the manslaughter count, and there are [sic] a series of questions that you need to ask yourselves: firstly, are we sure the defendant prepared what he knew to be a heroin mixture for Bosque? If ‘no’, not guilty. If ‘yes’, you go on to question two. As far as that question is concerned, question one, if the defendant’s account of bringing the syringe and the citric acid into Bosque’s room and simply getting water for him and holding the lighter under the spoon may be true, the defendant should be acquitted. Having considered question one, as I say, if the answer is ‘no’, not guilty. If ‘yes’, you consider question two: are we sure the defendant handed the heroin to Bosque for immediate injection? If the answer is ‘no’, not guilty. If ‘yes’, then you go on to consider the next question: are we sure that the defendant’s act was one which all sober and reasonable people would inevitably realise was bound to subject Bosque to the risk of harm – albeit not serious harm? If the answer is ‘no’, you say not guilty, and if ‘yes’, you consider the fourth question: are we sure that the defendant’s act was a significant cause of death? The defendant’s act does not have to be the sole or even the main cause of death. But you must be sure that the defendant’s act was a significant cause of death. Preparing the heroin mixture that he brought into the room and handing the heroin mixture in a syringe to Bosque for immediate injection is capable of amounting to a significant cause of death.”

On his previous appeal, the appellant no longer disputed that he had supplied the heroin to the deceased. Two grounds were relied on. The first, based upon R v Dalby (1982) 74 Cr. App. R. 348, was that the submission of no case to answer, that had been made on the appellant’s behalf at the trial, should have succeeded. The second was that, if the facts in the instant case were distinguishable from those in Dalby, the appellant’s counsel ought not to have been precluded from seeking to persuade the jury in his closing speech that the deceased’s death was caused by his own decision to take the drugs for which the appellant had no legal responsibility.

It was also contended that, in dealing with the series of questions on which the jury might make their findings, the judge had failed to explain to the jury that there might have been a break in the chain of causation if they formed the view that the deceased’s death was due to his own decision to inject himself with the drugs.

The defendant, a Mr Derek Dalby had supplied the deceased, a Mr Stefan O’Such, with Diconal tablets. Both had injected themselves with the tablets in solution. They then went to a discotheque where they parted company. O’Such subsequently met a friend who helped him on two occasions to administer intravenous injections of an unspecified substance to himself. O’Such then returned home to his flat where he must have gone to sleep on the settee. An attempt to wake him the next day was unsuccessful. Dalby was prosecuted for manslaughter and convicted on the basis that his supply of the Diconal tablets was an unlawful and dangerous act which caused the death of O’Such.

On Dalby’s appeal, it was argued on his behalf that:

The trial judge gave leave to appeal. In doing so, he posed the following question:

“In the circumstances in which the intravenous consumption of a dangerous drug is a substantial cause of the death of the deceased, does the unlawful act of supply of the dangerous drug by the defendant to the deceased, per se, constitute the actus reus of the offence of manslaughter?”

The Court of Appeal gave a negative answer to this question. In doing so, they relied on the previous decisions of this Court in: Larkin (1942) 29 Cr App R 18 and the judgment of Humphreys J at p 23; Church (1965) 49 Cr App R 206, in particular the judgment of Edmund Davies J at p 213; and the judgment of Lord Salmon in Newbury and Jones (1976) 62 Cr App R 291.

The judgment in Dalby allowing the appeal was given by Waller LJ (Senior). He stated at p 351:

“There are several reported cases of manslaughter where the conduct which led to the death of the victim was not a direct act but these have been cases of manslaughter by negligence…But in all the reported cases of manslaughter by an unlawful and dangerous act, the researches of counsel have failed to find any case where the act was not a direct act.

The difficulty in the present case is that the act of supplying a scheduled drug was not an act which caused direct harm. It was an act which made it possible, or even likely, that harm would occur subsequently, particularly if the drug was supplied to somebody who was on drugs. In all the reported cases, the physical act has been one which inevitably would subject the other person to the risk of some harm from the act itself. In this case, the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous. It is interesting to note that in Smith and Hogan’s Criminal Law (4th ed.), p. 274, when discussing intervening causes, a number of examples are cited, but the whole discussion is based on an original injury followed by some other act or event.

In the judgment of this Court, the unlawful act of supplying drugs was not an act directed against the person of O’Such and the supply did not cause any direct injury to him. The kind of harm envisaged in all the reported cases of involuntary manslaughter was physical injury of some kind as an immediate and inevitable result of the unlawful act, e.g. a blow on the chin which knocks the victim against a wall causing a fractured skull and death, or threatening with a loaded gun which accidentally fires, or dropping a large stone on a train….or threatening another with an open razor and stumbling with death resulting…”

On the appellant’s first appeal, this Court noted that the facts of Dalby differed from those in this case, in that the appellant had prepared the syringe and handed it to the deceased for immediate injection. In his judgment in the appellant’s first appeal, Waller LJ (Junior) stated:

“It follows that the appellant’s unlawful conduct would not be limited to supply but would also be unlawful insofar as he assisted or encouraged Bosque to inject himself with the mixture of heroin and water. What we have in mind is what was said in R v Cato 62 Cr. App. R.41 particularly at p.47. In that case Cato had injected another person with morphine which Cato had unlawfully taken into his possession. According to the judgment of the Lord Chief Justice in that case, first, by virtue of section 23 of the Offences against the Person Act 1861, which provides “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, …shall be guilty of an offence”, the act of injection was unlawful. But secondly, and in addition, even without the assistance of that section, it was held “…that had it not been possible to rely on the charge under section 23…, there would have been an unlawful act here, and … the unlawful act would be described as injecting the deceased Farmer with a mixture of heroin and water which at the time of the injection and for the purposes of the injection the accused had unlawfully taken into his possession.” (See p. 47) We can see no reason, why, on the facts as alleged by the Crown, the appellant in the instant case might not have been guilty of an offence under section 23 of the Offences against the Person Act 1861. Perhaps more relevantly, the injection of the heroin into himself by Bosque was itself an unlawful act, and if the appellant assisted in and wilfully encouraged that unlawful conduct, he would himself be acting unlawfully.”

“[T]he passage which is of most immediate relevance is to be found in Chapter XII, in which the learned authors consider the circumstances in which the intervention of a third person, not acting in concert with the accused, may have the effect of relieving the accused of criminal responsibility. The criterion which they suggest should be applied in such circumstances is whether the intervention is voluntary, i.e. whether it is “free, deliberate and informed.” We resist the temptation of expressing the judicial opinion whether we find ourselves in complete agreement with that definition; though we certainly consider it to be broadly correct and supported by authority. ”

Waller LJ added:

“Whether one talks of novus actus interveniens or simply in terms of causation, that passage reveals, as it seems to us, that the critical question to which the jury must direct its mind, where (as in the instant case) there is an act causative of death performed by in this case the deceased himself, is whether the appellant can be said to be jointly responsible for the carrying out of that act.”

This Court concluded:

“We think that the questions and the direction do in fact come very close to leaving the matter accurately to the jury. By question two to count 1 the judge identified the act not simply as the supply of heroin but the handing to Bosque for immediate injection. That, as it seems to us, connotes the element of encouragement that Bosque should immediately inject himself with the heroin mixture in the syringe handed to him, albeit it might have been better to use the phrase “wilfully encouraged”. That it was the actions of not simply supplying the heroin on which the jury were to concentrate is further emphasised by the passage at p.9C where the judge said “preparing the heroin mixture that he brought into the room and handing the heroin mixture in a syringe to Bosque for immediate injection is capable of amounting to a significant cause of death.”

However, what we are also concerned about is that albeit the direction is very close to leaving the matter accurately to the jury, there is no explanation by the judge of the alternative submission which Mr Montrose suggests he was prevented from making. For example, the judge could have said and made clear that if the jury formed the view that the defendant had prepared the syringe but attempted to discourage the use of it by his words or conduct, then it was open to the jury to take the view that Bosque’s self-injection was one for which the appellant could not be held to be responsible.

Accordingly, as is apparent, we take the view that this matter could have been put more clearly to the jury and we also take the view that it was unfortunate that Mr Montrose was not allowed to address the jury on the causation aspect if he thought it right to do so. But, that said, we take the view that, if the jury accepted Cody’s evidence, which they must have done in relation to the supply alleged in this case, a contention that the appellant was not encouraging the injection was a totally hopeless one. This was a case about the supply of heroin in a made up syringe for immediate injection. That was the case which the appellant fought, but, if it was rejected, the jury were bound to be sure of the supply in that form. Once sure that the supply was in that form, then they could not but have formed the view that the appellant was encouraging injection. Even his words were not to discourage some injection but were indeed to encourage some injection. It must be remembered that all it is necessary for a sober and reasonable person to realise was that some risk of harm, albeit not serious harm, would result from the appellant’s act. In this instance, an encouragement to inject carried with it the risk of some harm, even from the prick of the needle, never mind an injection of a lesser quantity of heroin than that which actually caused the death of Bosque.”

The references by Waller LJ (Junior) in his judgment to s.23 of the Offences Against the Person Act 1861 are important. The relevant terms of the section are set out in the first paragraph cited from Waller LJ’s (Junior) judgment. It should be noted that the section creates two offences: the first involves administering a noxious substance and the second causing to be administered a noxious substance so as thereby to endanger life or inflict grievous bodily harm. For an offence to be committed, the defendant need not have foreseen that such harm would be the result of administering the drug (R v Cato (1976) 62 Cr. App. R. 41).

Turning to the decisions which have taken place since that judgment was given, they are most conveniently treated in chronological order. The first case to which it is necessary to refer is that of Dias [2002] 2 Cr. App. R. 5. The facts in Dias were very similar to the facts of this appeal. The most distinctive factual feature of Dias was that both the deceased and the defendant injected themselves with syringes prepared by Dias.

At the trial, it was ruled by the judge, following Kennedy, that the self-injection of the heroin by the deceased was an unlawful act and that it followed that aiding and abetting such an offence made Dias criminally liable as a secondary party for that unlawful act which had resulted in death. The trial judge directed the jury to ask themselves whether they were sure “that the defendant assisted and deliberately encouraged (the deceased) to take the heroin.”

On appeal, Lord Justice Keene, in giving the judgment of this court, considered that it was not possible to rely on the unlawful supply of the heroin because “the chain of causation was probably broken by (the) intervening act of the deceased injecting himself” (paragraph 8). Keene LJ found difficulty in seeing any distinction between the circumstances which were considered in Dalby, and the circumstances which were considered on the first appeal in this case (paragraph 21).

This court decided that, for the purposes of the offence of manslaughter, the unlawful act was “essentially the injection of the heroin rather than the possession of it”. Keene LJ also stated that the defendant could only have been guilty of manslaughter as a secondary party and not as a principal. If that was the position, then “who [was] the principal of manslaughter?” As there was no offence of self-manslaughter, the court considered it was difficult to see how the defendant could be guilty of that offence as a secondary party merely because he encouraged or assisted the deceased to inject himself with the drug. The appeal was, therefore, allowed.

The decision in Dalby was followed by the decision in Richards [2002] EWCA Crim 12 December 2002. In Richards, this court quashed the conviction on the basis that self-injection, being the act causative of death, was not an unlawful act, whereas the trial judge had directed the jury that it was an unlawful act.

The next case was Rogers [2003] 1 WLR 1374. The important point in Rogers was that the defendant applied a tourniquet to the deceased’s arm while the deceased injected himself with heroin. Rose VP agreed with Keene LJ in Dias and accepted that Waller LJ (Junior)’s reasoning in the first appeal was incorrect “insofar as the reasoning was based on self-injection being an unlawful act”. Rose VP, like Keene LJ in Dias, approved of the criticism of Waller LJ’s judgment on the first appeal contained in the commentary on that decision of Sir John Smith in The Criminal Law Review [1999] Crim LR 65. The commentary states:

“The two may have been jointly ‘responsible’ and, if the act done by the deceased had been a crime, they would both have been guilty of that crime. The trouble is that the act done by the deceased was not a crime, certainly not the crime of manslaughter. Causation and responsibility are distinct questions. Accessories are held to be ‘responsible’ for the actus reus, but they do not (in law) cause it, for if they did, they would be principals. They are not.”

In giving the judgment of the court in Rogers, Rose VP focused on the question of whether the defendant’s conduct in that case was that of a principal or a secondary party. He stressed that the application of the tourniquet should not be considered in isolation. He added:

“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 defendant 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.

…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 [defendant] is categorised as such a participant, it being common ground that death resulted from the injection, no question arises in relation to causation.” (Paragraphs 7 and 8)

Rose VP regarded his approach as not being in conflict with that of Keene LJ in Dias (paragraph 8).

Pausing, before turning to the final case in the series, it is important to point out where the authorities that we have already cited take us;

Waller LJ’s way of expressing the matter is suggested by the Commission to be flawed because:

“In the offence of incitement it is a requirement that that which is incited be a crime. Self-injection not being unlawful, encouragement to self-inject cannot amount to the offence of incitement. If the relevant act was Mr Kennedy’s encouragement, that encouragement was not unlawful and there was no unlawful act upon which a manslaughter conviction could be founded.” (Paragraph 50 p 23 of the Statement of Reasons).”

This criticism ignores the fact that Waller LJ also referred to joint responsibilities for carrying out that act and, in addition, relied upon s.23. But for this we would agree with the Commission’s criticism.

The last case in the series is the case of Finlay [2003] EWCA Crim 3868. Initially there was an issue as to whether Finlay had personally injected the deceased or whether he had merely cooked and prepared the heroin, loaded the syringe and handed it to the deceased who had injected herself. The problem with the defendant’s case at the trial was that, even if “the appellant had not himself wielded the syringe, he would have committed an offence under s.23 if he had caused the administration of the heroin even though he did not himself physically administer it.” As Buxton LJ said in the judgment in Finlay:

“Effectively, the only matter in issue was whether it was open to the judge to leave to the jury the possibility that there was a version of events that caused Mr Finlay to be guilty of an offence under Section 23 of the 1861 Act even though he had not himself held the syringe.”

This was because the trial judge, anticipating the judgment of this court in Rogers, gave a ruling stating:

“So it seems to me that subject to one further point, to which I will turn almost immediately, cooking up heroin, loading it into a syringe, and then giving the syringe to someone who is clearly going to inject themselves almost immediately, is capable of coming within the terms of section 23. Whether or not it does so in any given case is a question of fact which falls for the jury and not the court to decide.

The last remaining point in relation to section 23 is this. In order to establish limb two of their case, the prosecution would have to prove that the defendant caused the heroin to be administered to, or be taken by, the deceased. In my view it is not necessary for the Crown to prove that the defendant’s actions were the sole cause of the deceased injecting heroin. Here, by cooking up, loading the syringe, and handing it to the deceased, the defendant produced a situation in which the deceased could inject and in which an injection by her into herself was entirely foreseeable. It was not a situation in which injection could be regarded as something extraordinary. That being the case, it seems to me that on the authority of Environment Agency v Empress Car Company Limited [1999] 2 AC 22, that it would be open to the jury to conclude that the defendant’s action caused heroin to be administered to, or to be taken by, the deceased.

At the end of the day this is a question of fact for the jury to decide.”

Of this part of the ruling on the appeal, Buxton LJ said:

“That clearly sets out the law as it was understood by this court in the case of R v Rogers. The test is one of causation. In this case, could it be said that the act of the deceased in taking up the syringe and using it on herself, which are to be assumed to be the facts, prevented Mr Finlay’s previous acts being causative of the injection. The judge rightly referred to Environment Agency v Empress Car Company [1999] 2 AC 22. In that case Lord Hoffmann said that the prosecution need not prove that the defendant did something which was the immediate cause of death. When the prosecution had identified an act done by the defendant, the court had to decide, particularly when a necessary condition of the event complained of was the act of a third party, whether that act should be regarded as a matter of ordinary occurrence which would not negative the effect of the defendant’s act; or something extraordinary, on the other hand which would leave open a finding that the defendant did not cause the criminal act or event. That, said Lord Hoffmann, with the agreement of the rest of the House of Lords, was a question of fact and degree to which, in the case before him, the justices had to apply their common sense, as in a jury trial the jury has to apply its common sense. That was exactly the way in which the judge directed himself in his observations on the application that count 2 should be removed from the jury….

Whether or not the defendant caused heroin to be administered to or taken by the deceased is a question of fact and degree which you have to decide, and you should decide it by applying your common sense and knowledge of the world to the facts that you find to be proved by the evidence. The prosecution do not have to show that what the defendant did or said was a sole cause of the injection of heroin into the deceased. Where the defendant has produced the situation in which there is the possibility for heroin to be administered to or taken by Jasmine Grosvenor, but the actual injection of heroin involves an act on part of another – in this case Jasmine herself – then if the injection of heroin is to be regarded in your view as a normal fact of life, in the situation proved by the evidence, then the act of the other person will not prevent the defendant’s deeds or words being a cause, or one of the causes, of that injection. On the other hand, if in the situation proved by the evidence, injection is to be regarded as an extraordinary event, then it would be open to you to conclude that the defendant did not cause heroin to be administered to or taken by the deceased….

Mr Gibson-Lee really advances two reasons why the judge should not have taken that view, and why he should have considered that count 2 should not have gone to the jury. The first is that on the assumption that it was the deceased who injected herself, that act of itself breaks the chain of causation between whatever it was that the accused did and the actual event of injection. That is a view that is also taken in a critical commentary on the decision in Rogers in the Criminal Law Review. We have to say that that approach is not correct. It seeks to make the existence of what used to be called a novus actus interveniens, and can now more simply be regarded as an act of another person, as something that as a matter of law [emphasis added] breaks the chain of causation. It was that view or assumption that was rejected by the House of Lords in the Empress Car case. Intervening acts are only a factor to be taken into account by the jury in looking at all the circumstances, as the judge told them to do.

Secondly, Mr Gibson-Lee says that in any event the facts of this case were such that it simply was not open to the jury to conclude that Mr Finlay had caused the injection. He had done no more than form part of the background, or provide the opportunity of which the deceased availed herself: - in other words, that the case was so extreme or so clear that it was not appropriate for the jury to look at it as a case of causation at all. The judge did not take that view, nor do we. The unhappy circumstances of this case, and in particular the unhappy circumstances of this lady’s life and condition, in our view indicate that it was certainly open to a jury to conclude in Empress Car terms that in those circumstances, and we emphasise that, it was what Lord Hoffmann described as an “ordinary” occurrence for the purpose of the law of causation that she should have taken advantage of whatever it was that Mr Finlay did towards her or with her. It is not necessary for that conclusion to decide, as Mr Gibson-Lee suggested it was that she was incapable of knowing what she was doing or had ceased entirely to be a rational being. All that is necessary, in our judgment, is that the circumstances should be such that it could properly be said to fall within the ambit of possible and ordinary events that she will take the opportunity given her. We quite accept that, on facts different from these, there might be more difficulty in coming to that conclusion.”

It was because of his view that the test to be applied was “one of causation” that Buxton LJ, like the judge, referred to Lord Hoffmann’s speech in Environment Agency v Empress Car Company Limited. By focusing on the issue of causation, and by proceeding on the footing that the issue under s.23 was whether the defendant had caused to be administered the drug, Buxton LJ was departing somewhat from the approach of Rose VP in Rogers. If Finlay’s actions were part and parcel of the administering of the drug or the causing the drug to be administered for the purposes of s.23 of the 1861 Act, then there really could be no problem as to causation as Rose VP indicated in Rogers. Of course, if the jury had taken the view that the activities of Finlay formed no more than “part of the background” to the drug taking or simply “provide[d] the opportunity of which the deceased availed herself”, then the position would be different. Questions of causation would be determined otherwise.

The reliance by Buxton LJ on what Lord Hoffmann said in the Empress case as to causation is criticised by the Commission and the appellant and in academic articles (see for example, Criminal Law Review 2004 pp 463-7). This raises the question, as the Commission and Mr Bentley point out on behalf of the appellant, whether the Empress approach is intended to be of general application, or confined to situations similar to that which was being considered in the Empress case.

In the Empress case, the appellant had been charged with causing polluting matter to enter controlled waters, contrary to s.85(1) of the Water Resources Act 1991. As Lord Hoffmann made clear in his speech, the House was concerned with a statutory offence, one limb of which involved “causing” so that “the prosecution must prove that the pollution was caused by something which the defendant did, rather than merely failed to prevent.” As Lord Hoffmann states:

“It is, however, very important to notice that this requirement is not because of anything inherent in the notion of “causing”. It is because of the structure of the sub-section which imposes liability under two separate heads: the first limb simply for doing something which causes the pollution and the second for knowingly failing to prevent the pollution.”

Later Lord Hoffmann adds:

“Not only may there be different answers to questions about causation when attributing responsibility to different people under different rules (in the above example, criminal responsibility of the thief, common sense responsibility of the owner) but there may be different answers when attributing responsibility to different people under the same rule”

Lord Hoffmann also states:

“What, therefore, is the nature of the duty imposed by section 85(1)? Does it include responsibility for acts of third parties or natural events and, if so, for any such acts or only some of them? This is a question of statutory construction, having regard to the policy of the Act. It is immediately clear that the liability imposed by the sub-section is strict: it does not require mens rea in the sense of intention or negligence. Strict liability is imposed in the interests of protecting controlled waters from pollution. …Clearly, therefore, the fact that a deliberate act of a third party, caused the pollution does not in itself mean that the defendants creation of a situation in which the third party could so act did not also cause the pollution for the purposes of section 85(1).”

We cite these statements of Lord Hoffmann to emphasise that he was very much concerned with the context in which the issue arose for decision. This is of importance because, later in his speech, having made clear foreseeability was not the proper test, he added:

“The true common sense distinction is, in my view, between acts and events which, although not necessarily foreseeable in the particular case, are in the generality a normal and familiar fact of life, and acts or events which are abnormal and extraordinary.”

Lord Hoffmann then makes clear that a defendant would not be liable under the section of the Act for “abnormal and extraordinary” events.

In Finlay, Buxton LJ was suggesting that the approach the House of Lords appropriately applied in the Empress case to a statute dealing with pollution could be applied equally here to the issues of causation where the statutory context is very different. It is, however, to be noted that the question of causation can arise on a charge of manslaughter when s.23 of the 1861 Act is not relied upon, and in two different circumstances when s.23 is relied upon. It can arise on the general question of whether the defendant’s unlawful action caused the deceased’s death. It can also arise on the question of whether the defendant caused to be administered “any poison or other destructive or noxious thing contrary to s.23”. These are distinct situations.

In his summing-up in Finlay, the trial judge referred to the need for the prosecution, in relation to the s.23 offence, to prove that the defendant caused the heroin to be administered to, or to be taken by, the deceased. In that context he referred to the Empress case. As we understand the position, it was to this context that Buxton LJ was addressing himself when he referred with approval to the approach of the judge to establishing causation in accordance with Lord Hoffmann’s speech in the Empress case. In that context, this appears to us to be, with respect, an unnecessary sophistication. All the jury had to decide as to causation was whether Finlay’s actions were as a matter of fact causative of the deceased taking the action to administer the drug. If it was, his conduct contravened s.23 and was unlawful. Otherwise it was not.

It has to be remembered that when considering whether the defendant’s act has caused death, what amounts to causation in a case of this nature is not dependent upon a particular statutory context. Accordingly if a defendant is acting in concert with the deceased, what the deceased does in concert with the defendant will not break the chain of causation, even though the general principles as to causation have to be applied. This was recognised by Lord Steyn when he qualified the general position when saying in R v Latif & Others [1996] 2 Cr. App. R. 92 at p 104:

“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 held to relieve the first actor of criminal responsibility.” (Emphasis added)

If Kennedy either caused the deceased to administer the drug or was acting jointly with the deceased in administering the drug, Kennedy would be acting in concert with the deceased and there would be no breach in the chain of causation.

The exception made for the person “acting in concert” is of considerable importance. The fact that a person who takes his own life does not commit an unlawful act by so doing, does not mean that a person who helps him to commit that act, if that helping act is contrary to s.23, does not commit an unlawful act. On the contrary, the helper does commit an unlawful act and could be charged under s.23 and convicted. He could also be convicted of manslaughter if the person he was helping dies in consequence. The requirement of an unlawful act is fulfilled. There should, in the appropriate case, be no difficulty in establishing foreseeability of risk. Nor should there be difficulty in establishing causation because the participants were acting in concert.

The Commission, in their Statement of Reasons, suggest that if the defendant cannot be an accessory, then nor can he be a joint principal. However, this approach ignores the significance of the independent unlawful act under s.23. If the defendant is guilty of an unlawful act under s.23 of the 1861 Act, this in turn can result in his being guilty of the different offence of manslaughter. So if the defendant is properly proved to have committed an offence under one or other of the limbs of s.23, then, subject to the other requirements of establishing manslaughter, he will be guilty of manslaughter. Insofar as the Commission and Mr Bentley submitted otherwise, we reject their contentions, which are, in any event, inconsistent with previous decisions of this Court which are binding upon us. Keene LJ in Dias also recognised that an approach based on s.23 may result in the offence of manslaughter being established “so long as the chain of causation was not broken”.

The Commission argue that taking the reasoning in Finlay to its logical conclusion, the outcome would be that a person who assists another to commit suicide by providing a loaded syringe of heroin to another, in order that that person can take his own life, would now become a principal to murder. It is suggested by the Commission that such “assisted suicide” type situations are analogous to the Finlay/Kennedy type situation, save that in the former instance there is a joint intention to kill.

In the Finlay/Kennedy type situation, the Commission argue that the “helper” would have the necessary mens rea (intent to cause death or really serious bodily harm, foresight of such consequences providing evidence of the necessary intent; quite different from motive or desire) and, by virtue of the reasoning in Finlay, they would also be committing the actus reus of murder (performing an act that was a substantial cause of death) even though the “helper” may not himself have administered the fatal dose or injection.

The Commission add that a logical extension of the Finlay reasoning in this way in the present case would effectively drive a “coach and horses” through the offence of “assisted suicide” created by s.2 of the Suicide Act 1961. It is also suggested by the Commission that the creation by Parliament of a separate offence of “assisted suicide,” whereby the “helper” is treated as the principal to this separate offence, is demonstrative of the fact that the law, as Parliament understood it prior to 1961, cannot have been that a “helper” commits the actus reus of manslaughter as principal. The Commission submit that, invoking the doctrine of joint principalship in the Kennedy/Finlay type situation would lead to there being a direct and irreconcilable overlap between the s.2 offence and the offence of murder.

We recognise the force of these arguments made by the Commission but we reject them. They ignore the consequences created by the existence of the s.23 offence. In addition, Parliament, by enacting the Suicide Act 1961, must be taken to have provided a statutory code for offences, in situations involving an individual deliberately taking his own life. In view of s.2 of the 1961 Act, it would be an abuse to prosecute someone assisting another to commit suicide for murder. Furthermore, in practice, it would not happen. So we do not see this as a dangerous consequence of the views expressed on this appeal and in Rogers and Finlay.

We find support for our view of the effect of the 1961 Act in the speeches of Lord Steyn (at para. 52) and Lord Hobhouse (at paras. 110-11) in R (on the application of Pretty) v DPP [2002] 1 AC 800.

In view of the conclusions that we have come to as a result of our examination of the authorities, it appears to us that it was open to the jury to convict the appellant of manslaughter. To convict, the jury had to be satisfied that, when the heroin was handed to the deceased “for immediate injection”, he and the deceased were both engaged in the one activity of administering the heroin. These were not necessarily to be regarded as two separate activities; and the question that remains is whether the jury were satisfied that this was the situation. If the jury were satisfied of this then the appellant was responsible for taking the action in concert with the deceased to enable the deceased to inject himself with the syringe of heroin which had been made ready for his immediate use.

In our view, the jury would have been entitled to find (and indeed it is an appropriate finding) that in these circumstances the appellant and the deceased were jointly engaged in administering the heroin. This was the conclusion of this Court on the first appeal, as we understand Waller LJ’s judgment, and we do not feel it necessary to take a different view, though we do accept that the issue could have been left by the trial judge to the jury in more clear terms than it was.

The point in this case is that the appellant and the deceased were carrying out a “combined operation” for which they were jointly responsible. Their actions were similar to what happens frequently when carrying out lawful injections: one nurse may carry out certain preparatory actions (including preparing the syringe) and hand it to a colleague who inserts the needle and administers the injection, after which the other nurse may apply a plaster. In such a situation, both nurses can be regarded as administering the drug. They are working as a team. Both their actions are necessary. They are interlinked but separate parts in the overall process of administering the drug. In these circumstances, as Waller LJ stated on the first appeal, they “can be said to be jointly responsible for carrying out that act”.

Whether the necessary linkage existed between the actions of the appellant and the deceased was very much a matter for the jury to determine. The question then arises as to whether the trial judge in the summing up expressed the issue in sufficiently clear terms for the jury? As to this, we share similar reservations to those expressed by Waller LJ in his judgment on the first appeal. There was no need for the jury to find the encouragement that Waller LJ thought was necessary. However, the jury did have to find that the appellant and the deceased were acting in concert in administering the heroin.

In addition, there is the fact that Mr Montrose, who represented the appellant at the trial, was not allowed to address the jury on the question of causation. However, here we have less reservations than the court on the first appeal, since if the deceased and the appellant were acting in concert in administering the heroin, it seems to us inevitable that the unlawful act, contrary to s.23 of the 1861 Act, was causative of the deceased’s death.

In the end, like the first court in the appellant’s first appeal, we have come to the conclusion that Miss Bennett-Jenkins’ submissions, on behalf of the Crown, are correct; and we do not see any error in the reasoning of Waller LJ to the effect (notwithstanding the trial Judge’s approach) that the conviction was safe.

Mr Bentley also submits that the directions given by the trial judge did not properly and adequately deal with the facts relevant to drawing an adverse inference in accordance with s.34 of the Criminal Justice and Public Order Act 1994. Having given careful consideration to this submission, which was not advanced by the Commission, and which was very much secondary to the main submission, we have concluded that this ground of appeal has no merit.

It only remains for us to acknowledge the high quality of the argument advanced both by Mr Bentley and Miss Bennett-Jenkins.

The appeal is dismissed.