(As approved by Judge)
THE LORD CHIEF JUSTICE: Following a trial at St. Albans Crown Court in June of this year the following sentences were imposed upon the Appellant Cato and the Applicants Morris and Dudley in respect of counts in the indictment. First of all, Cato was sentenced to four years' imprisonment on count 1 for manslaughter of Anthony Farmer. He was also sentenced to four years concurrent on a charge under section 23 of the Offences against the Person Act, 1861 of administering a noxious thing. The other two Applicants Morris and Dudley were not concerned with the manslaughter charge directly. Their offences were of assisting Cato in what might be described as a "cover-up" of the death of Farmer. In respect of those offences Morris was sentenced to Borstal training and Dudley to two years' imprisonment, but in respect of each of them a condition precedent to it was the conviction of Cato on the manslaughter charge or the charge under section 23. Unless that could be established, then the offences charged against Morris and Dudley did not arise.
Equally, it is accepted by their Counsel that if the conviction of Cato for manslaughter or administering a noxious thing is upheld, then Dudley and Morris have nothing further to say in regard to their conviction in this case. Thus, nearly everything in regard to guilt or innocence revolves around the conviction of Cato of manslaughter.
The victim, as I have said, was a young man called Anthony Farmer. The events leading up to his death occurred on the 25th July, 1974. On that day Cato and Farmer had been in each other's company for most of the day. The evidence suggests certain intervals when they were apart, but by and large they seem to have been together all that day, and they spent much of the day with Morris and Dudley as well. All four of them at that time were living at a house called No. 34 Russell Street, and on the 25th July their activities brought them to the Crown public house where they were until closing time, and after closing time they went back to No. 34 Russell Street.
There were others living in the house. They went to bed, and the four (that is to say Cato, Morris, Dudley and the deceased Farmer) remained downstairs for a time. The moment came when Farmer produced a bag of white powder and some syringes and invited the others to have a "fix" with him; and so they did. The white powder was put in its bag on the mantelpiece, the syringes were distributed amongst the four who were to participate, and the procedure which they adopted (which may or may not be a common one) was to pair off so that each could do the actual act of injection into the other half of his pair. Following this procedure Morris and Dudley paired off together and so did Cato and Farmer (the deceased). All four had a number of injections following this procedure, but the time came when Dudley and Morris went to bed, leaving Cato and Farmer downstairs in the sitting room. Cato and Farmer continued to give each other these injections from time to time right through the night.
The actual method, which I have probably described sufficiently already, may deserve a moment's repetition because so much hinges upon it. The method, as I have already indicated, was that each would take his own syringe. He would fill it to his own taste with whatever mixture of powder and water he thought proper. He would then give his syringe to the other half of his pair — in this case Farmer would give his syringe to Cato — and the other half of the pair would conduct the actual act of injection. It is important to notice that the strength of the mixture to be used was entirely dictated by the person who was to receive it because he prepared his own syringe; but it is also to be noticed that the actual act of injection was done by the other half of the pair, which of course has a very important influence on this case when one comes to causation.
When the following morning came Farmer and Cato were still downstairs. They were apparently fast asleep, although everybody thought they were well enough at 8 o'clock in the morning when they were seen. But as the next hour or two passed it became apparent that they were both in difficulties. Cato indeed was having difficulty in breathing, and probably his life was saved only because somebody gave him some rudimentary first aid. No-one was able to do the same for Farmer, and by 11 o'clock Farmer was dead, and the cause of death was that his respiratory system ceased to function consequent upon intoxication from drugs.
When it was discovered Farmer was dead steps were taken to try and cover up by the two Applicants Morris and Dudley, and I need not deal with them in detail at this stage. But in the end the full story came out and the charges to which I have already referred were brought against these three men in consequence of those actions.
At the trial there was quite a volume of expert evidence. First, there was a pathologist who conducted the elementary, if I may say so, and preliminary examination of the body and discovered there was insufficient evidence of natural disease to account for death and that an autopsy would be necessary. Then there was other further and detailed investigation of specimens of various parts of the body which showed (I am concentrating this quite a lot) a quantity of morphine in the body consistent with the injections of heroin which had been taken, according to their confessions, through the night. But it was noteworthy, so the expert said, that there was no morphine in the blood — a pointer, as we understand it, to a longer interval between the injection and the death than would have appeared to have occurred having regard to the recital of the facts that I have given. Furthermore, a Dr. Robinson, who was called on behalf of the defence, strongly made the point that there was not enough morphine visibly present in the samples to account for death because it was not a fatal dose. She had not seen the samples or worked on them herself because she had come into the case later than that, but she clearly took the view that although there was morphine in the body, and although the morphine may have contributed to the death, it was not exclusively responsible for it because there was, as she said, a missing factor; and she concluded that there was a missing factor because in her view the size of the dose received by the deceased Farmer was insufficient to cause death.
The learned Judge left the manslaughter charge to the jury on the two alternative bases which the Crown had suggested, and it will be appreciated at once what they were. The first alternative was that the death was caused by the injection and the consequent intrusion of morphine into the body, and that was an unlawful act so that the killing was the result of an unlawful act and manslaughter on that footing. Alternatively, it was said that a verdict of guilty would be justified on the footing that there had been no unlawful act, but that the injection of heroin had been done with recklessness or gross negligence, which of course would be sufficient to sustain the conviction of manslaughter.
The learned Judge at page 12 put it this way:
"Now, manslaughter in law is causing or contributing to the causing or accelerating (that is the hastening on) the death of a human being quite inadvertently by doing an unlawful and dangerous act, or, alternatively, by doing a lawful act with gross negligence, that is to say, recklessly."
He gets the alternatives there perfectly well.
He says at the bottom of the page:
"The consent of the victim is quite immaterial, quite irrelevant, just as it is in the not uncommon case of manslaughter, such as in the next case I have to try".
Further on the next page he says:
"The Prosecution say here that this was manslaughter in either of two ways, that is to say, either death was caused, although quite inadvertently, by an unlawful and dangerous act, or, alternatively, by doing an act with gross negligence, recklessly".
In amplification of that direction, which is repeated more than once, the learned Judge quite early in the course of his summing-up handed to the jury six questions which he had written out for their consideration, and he told the jury that they should ask themselves these six questions, and that if they answered "yes" to all of them, then the verdict should be guilty.
These were the questions in their original version:
"(1) Did Cato take possession of some heroin in a syringe and then inject the contents of the syringe into Anthony Farmer?
(2) Did such injection by Cato endanger the life of Anthony Farmer?
(3) Did the injection of heroin by Cato contribute to or accelerate the death of Anthony Farmer?
(4) Was the heroin so injected likely to do harm to Anthony Farmer, although not necessarily serious harm?
(5) Did Cato realise
(a) that it was unlawful for him or Farmer to be in possession of heroin;
(b) that heroin was likely, if injected, to do some harm to the deceased Anthony Farmer?"
The sixth question was introduced by a statement of the learned Judge that this was a slightly fresh question because it dealt with the other approach to the case suggested by the prosecution:
"Was the conduct of Cato, in respect of the injection, grossly negligent or, in other words, reckless?"
Consequent upon some argument later in the course of the hearing the Judge made two amendments to those questions. We find them on page 58 of the transcript of the summing-up. For question (1) he substituted these words: "Did he" — that is Cato — "take into his hand, so as to control and carry out the injection, a syringe which contained heroin and also water which was mixed and then supplied the dose by injection to Tony Farmer?" In question (3) he amended the phraseology in this way. He inserted the word "cause" so that the question read: "Did such injection of heroin by Cato cause, contribute to or accelerate the death of Anthony Farmer?" The previous version, it will be remembered, did not contain the word "cause".
So those six questions were delivered to the jury for them to consider, not, as it turned out, to produce a special verdict, but for them to consider with an instruction from the learned Judge that if they could answer them all "yes", they must convict of manslaughter, and that if they could not answer them all "yes", they should come back and ask for further guidance.
Of course that last direction of the Judge is obviously important. The jury did not come back and ask for further guidance, and if they were following the letter of his instruction, and there is really no reason to suggest they did not on this point, the fact that they did not come back must mean that they were able to answer all the six questions in the affirmative. So much for a broad outline of the circumstances in which these charges were brought and the developments at the trial.
We can now turn to look more precisely at Mr. Blom-Cooper's submissions in supporting the appeal against conviction. We have had a long and very helpful argument from Mr. Blom-Cooper in which all the features of this difficult, and in some respects intriguing, case have been considered. It seems to us that the first and most important single factor to which he directed our attention was concerned with causation, that is to say with the link alleged to exist between the injection of heroin and the death of Farmer.
First of all, he invited us to look at the evidence of causation, and he pointed out that the medical evidence did not at any point say "This morphine killed Farmer"; the actual link of that kind was not present. The witnesses were hesitant to express such a view and often recoiled from it, saying it was not for them to state the cause of death.
It is perfectly true, as Mr. Blom-Cooper says, that the expert evidence did not in positive terms provide a link, but it was never intended to. The expert witnesses here spoke to factual situations, and the conclusions and deductions therefrom were for the jury. The first question was: was there sufficient evidence upon which the jury could conclude, as they must have concluded, that adequate causation was present?
When one looks at the evidence it is important to realise that no other cause of Farmer's death was supplied. Dr. Robinson thought that there might have been another drug, and she said at one stage it might have been cocaine, but there was never any cocaine found in the body. The only cause of death actually supplied by the evidence was morphine. No natural disease was present and no other drug was identified. Furthermore, the symptoms and the external appearance of the body, and the nature of the final terminal cause, was consistent with poison by the administration of heroin in the way which was described.
Further, when the people who lived in the house were giving their evidence about the death of Farmer, it was, as the Judge pointed out, quite clear that they thought there was no doubt about what the cause had been. It may be of course that young people living in those circumstances know a great deal about the symptoms of heroin poisoning; I know not.
The Judge at page 20 of the summing-up said this:
"Members of the Jury, it seems to me that that evidence about the condition of Cato when he was senseless on the floor and was put to bed, what he looked like and so forth is quite material in regard to the cause of Tony Farmer's death because Cato and he had both been dosing themselves with the same sort of thing, in the same sort of way, in the same sort of number of times, and that is clear evidence in this particular case. The opinions of the people in the house is of course not medical opinion but everybody there seemed to draw the conclusion that probably the heroin injections had caused both of them to be in the condition they were in."
That is an important and proper conclusion, if the jury thought fit to adopt it, because the fact that Cato very nearly suffered the same fate as Farmer, and showed the same kind of symptoms following the same kind of injections, is a pointer to indicate that the cause of Farmer's condition was the heroin which he had taken; and, furthermore, the jury were entitled, if they thought fit, to be influenced by the fact that the non-medical evidence from the residents was of the kind which the Judge related.
Of course behind this whole question of the sufficiency of evidence of causation is the fact that it was not necessary for the prosecution to prove that the heroin was the only cause. As a matter of law, it was sufficient if the prosecution could establish that it was a cause, provided it was a cause outside the de minimis range, and effectively bearing upon the acceleration of the moment of the victim's death.
When one has that in mind it is, we think, really possible to say that if the jury had been directed to look for heroin as a cause, not de minimis but a cause of substance, and they came back with a verdict of not guilty, the verdict could really be described as a perverse one. The whole background of the evidence was the other way and there certainly was ample evidence, given a proper direction, upon which a charge of manslaughter could be supported.
But what about the proper direction? It will be noted that in none of the versions which I have quoted of the Judge's direction on this point, nor in any of those which I have not quoted which appear in the summing-up, is there any reference to it being necessary for the cause to be a substantial one. It is said in clear terms in one of the six questions that the jury can consider whether the administration of the heroin was a cause or contributed to or accelerated the death, and in precise terms the word "contributed" is not qualified to show that a substantial contribution is required.
Mr. Blom-Cooper, whose eagle eye misses nothing, sees here, and seeks to exploit here, what is a misdirection on the part of the Judge. In other words, taking the Judge's words literally it would be possible for the jury to bring in a verdict of guilty of manslaughter even though the contribution was not of substance.
Before pursuing that, it is worth reminding oneself that some of the more recent dicta in the textbooks about this point do not support as strongly as was once the ease the theory that the contribution must be substantial.
In Smith and Hogan at page 217 there is this rather interesting extract:
"It is commonly said by judges and writers that, while the accused's act need not be the sole cause of the death, it must be a substantial cause. This appears to mean only that a minute contribution to the cause of death will not entail responsibility. It may therefore be misleading to direct a jury that D is not liable unless his conduct was a 'substantial' cause. Killing is merely an acceleration of death and factors which produce a very trivial acceleration will be ignored."
Whether that be so or not, and we do not propose to give that passage the Court's blessing today at all events, if one looks at the circumstances of the present case with any real sense of reality, we think there can be no doubt that when the Judge was talking about contribution the jury knew perfectly well that he was talking about something more than the mere de minimis contribution. We have given this point particular care in our consideration of the case because it worried us to some extent originally, but we do feel in the end, having looked at all the circumstances, that there could not have been any question in this case of the jury making the mistake of thinking that the contribution would suffice if it were de minimis. Therefore in our judgment there is no substance in Mr. Blom-Cooper's attack on the basis of causation, whether it be an attack on the available evidence or upon the learned Judge's treatment of that evidence.
The next main point which I think the Court would wish to deal with is the fact that the learned Judge on more than one occasion, as the extracts which I have read show, told the jury that the consent of Farmer (the victim) was quite irrelevant. Occasionally he says the consent of Farmer is no defence to the charge, but more often he says the consent of Farmer is quite irrelevant. Mr. Blom-Cooper says that that was a misdirection because he says there are two factors, two aspects of this case, which have to be considered separately. It may be that if one asks oneself whether the consent of the victim could provide a defence to a charge of manslaughter, the answer should be a vivid "no". In general, as a simple proposition, where this kind of injury is done by one person to another the consent of the person injured is not a defence. On the other hand, one of the matters which the jury at some stage had to consider in the instant case was whether Cato had acted with recklessness or gross negligence, and Mr. Blom-Cooper says, and we think rightly, that when considering that aspect of the case the consent of Farmer is something which could not be wholly excluded.
In those circumstances we have tried to look at these two aspects of the matter separately. We think that the learned Judge, when saying so positively that the consent of Farmer was irrelevant or was no defence, was anticipating a question in the jury's mind that they might have been uncertain as to whether it would be a defence or not. One has to realise that laymen will often think that a person who dies in Farmer's circumstances will not produce a charge of manslaughter against his friend if in fact he consented to what was being done to him and the friend did not attempt to do more than that. We think it could very well have been the case that the jury might have asked the Judge directly "Is consent a defence?", and if they had, he would have had to say "No", and his saying "No" in the course of his summing-up appears to be an anticipation of that kind of question in the jury's mind.
But of course in a perfect world the Judge, when faced with this question, would have dealt with both aspects of the matter in contrast. He would have said "It is not a defence in the sense that merely by proving Farmer's permission the matter is at an end; but when you come to consider the questions of gross negligence or recklessness of course you must take it into account". Whether he would have gone further we very much doubt. If a persistent juror had said "Well, what do you mean by 'take into account'? What have we got to do?", it may very well be that the Judge would be stumped at that point and really could not do any more than say "You must take it into account". Lawyers understand what it means, but jurors very often do not, and although I have taken more time to discuss this point than perhaps it really requires, we have come to the conclusion that there is not here any matter which gives us cause to think that the conviction may be unsafe or unsatisfactory. We support the learned Judge in dealing head-on with the question of whether consent was a defence or not, and we do not think that he could usefully have said much more in regard to gross negligence or recklessness in order to avoid any possible confusion at that end of the scale.
The next matter, I think, is the unlawful act. Of course on the first approach to manslaughter in this ease it was necessary for the prosecution to prove that Farmer had been killed in the course of an unlawful act. Strangely enough, or it may seem strange to most of us, although the possession or supply of heroin is an offence, it is not an offence to take it, and although supplying it is an offence, it is not an offence to administer it. At least it is not made to be an offence, and so Mr. Blom-Cooper says there was no unlawful act here. That which Cato did — taking Farmer's syringe already charged and injecting the mixture into Farmer as directed — is not an unlawful act, says Mr. Blom-Cooper, because there is nothing there which is an offence against the Misuse of Drugs Act, and when he shows us the terms of the section it seems that that is absolutely right.
Of course if the conviction on count 2 remains (that is the charge under section 23 of administering a noxious thing), then that in itself would be an unlawful act. The prohibition in that statute would be enough in itself, and it is probably right to say that as we are going to uphold the conviction on count 2, as will appear presently, that really answers the problem and destroys the basis of Mr. Blom-Cooper's argument.
But since he went to such trouble with the argument, and in respect for it, we think we ought to say that had it not been possible to rely on the charge under section 23 of the Offences against the Person Act, we think there would have been an unlawful act here, and we think 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. As I say, it is not really necessary to rely on that because of our views on the other count, but we would not wish it to be thought that we had felt that Mr. Blom-Cooper's argument on this point would have succeeded had it been effectively open to him. So much then for the unlawful act.
Lastly, on the first count is the question of recklessness. Of course if the jury convicted on the second approach, the reckless approach, they must have considered whether there was recklessness. They were indeed instructed so to do.
Mr. Blom-Cooper makes the complaint that the Judge has not dealt sufficiently with this aspect of the case to give the jury a proper, fair and adequate direction about it. Of course he recognises — he is far too experienced, if I may say so, not to recognise — that he cannot expect every Judge in the hurly-burly of every case to sum up with the polished perfection which Counsel can produce in this Court some months later. But even so, making all allowances for that, the complaint is made that the Judge did not do anything to help the jury as to the meaning of recklessness, and in particular that the Judge did not refer to one aspect of Cato's evidence which might have proved of some importance.
Cato, when pressed as to his knowledge of the potentiality of heroin when injected, said that he knew that it might give rise to addiction, but he had no idea that it could give rise to death or serious bodily harm. Of course in deciding whether Cato had himself acted recklessly one would have to have regard to the fact, if it was accepted, that he did not know about the potentiality of the drug. It is said that this was not really sufficiently provided for in the summing-up.
We think it was. After all, recklessness is a perfectly simple English word. Its meaning is well known and it is in common use. There is a limit to the extent to which the Judge in the summing-up is expected to teach the jury the use of ordinary English words. Although we have listened to Mr. Blom-Cooper on this point, with respect, we do not find that criticism justifies our concluding the manslaughter verdict was in any measure unsafe or unsatisfactory, so we shall dismiss the appeal so far as that conviction is concerned.
I have already given away the fact that a similar consequence will follow in respect of the offence under section 23, but I must just go back and look at the reasons for it.
The offence under section 23 of the Offences against the Person Act is in these terms:
"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".
Thus, a number of things have to be proved in order to establish the offence, and the two which are relevant to Mr. Blom-Cooper's argument are "maliciously" and "noxious". The thing must be a "noxious thing" and it must be administered "maliciously".
What is a noxious thing, and in particular is heroin a noxious thing? The authorities show that an article is not to be described as noxious for present purposes merely because it has a potentiality for harm if taken in an overdose. There are many articles of value in common use which may be harmful in overdose, and it is clear on the authorities when looking at them that one cannot describe an article as noxious merely because it has that aptitude. On the other hand, if an article is liable to injure in common use, not when an overdose in the sense of an accidental excess is used but is liable to cause injury in common use, should it then not be regarded as a noxious thing for present purposes?
When one has regard to the potentiality of heroin in the circumstances which we read about and hear about in our Courts today we have no hesitation in saying that heroin is a noxious thing and we do not think that arguments are open to an accused person in a case such as the present, whereby he may say "Well, the deceased was experienced in taking heroin; his tolerance was high", and generally to indicate that the heroin was unlikely to do any particular harm in a particular circumstance. We think there can be no doubt, and it should be said clearly, that heroin is a noxious thing for the purposes of section 23.
What about "maliciously"? Mr. Blom-Cooper says that "maliciously" requires some foresight into the consequences, and he has referred us to the case of Regina v. Cunningham, (1957) 2 Queen's Bench at page 396, which is put before us as authority for that proposition.
It was a rather unusual case. The prisoner had stolen a gas meter and its contents from the cellar of a house, the contents no doubt having been money in a slot machine. He did it in a rough and unskilled way and left an escape of gas from the position which the meter had occupied. The gas percolated up into the higher reaches of the house, and eventually got into the bedroom of an elderly lady who was subjected to considerable exposure to coal gas as a result of what had happened. When the prisoner was charged with an offence under section 23 the question arose as to whether the requirement of malice had been satisfied.
Mr. Justice Byrne, giving the judgment of the Court of Criminal Appeal, at page 399 said this:
"Mr. Brodie argued, first, that mens rea of some kind is necessary. Secondly, that the nature of the mens rea required is that the appellant must intend to do the particular kind of harm that was done, or, alternatively, that he must foresee that that harm may occur yet nevertheless continue recklessly to do the act. Thirdly, that the judge misdirected the jury as to the meaning of the word 'maliciously'."
Then the Judge says this:
"We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C.S. Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p. 186 of the 16th edition edited by Mr. J.W. Cecil Turner and published in 1952:
'In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured......
We think that this is an accurate statement of the law."
No doubt this is correct in the Cunningham type of case where the injury to the victim was done indirectly: done, as it was in that case, by the escape of gas making itself felt in a wholly different part of the house. No doubt if the injury to the victim is indirect, then the element of foresight arises and the element of foresight will be taken from the words of Mr. Justice Byrne in the Cunningham case. But these problems do not arise when the act complained of is done directly to the person of the victim, as it was in this case.
We think in this case where the act was entirely a direct one that the requirement of malice is satisfied if the syringe was deliberately inserted into the body of Farmer, as it undoubtedly was, and if Cato at a time when he so inserted the syringe knew that the syringe contained a noxious substance. That is enough, we think, in this type of direct injury case to satisfy the requirement of maliciousness.
I am conscious of the fact that I have not done justice to Mr. Blom-Cooper's argument, but those are the reasons why we conclude that the convictions against Cato must stand and as a consequence, for the reasons I have described, so must the convictions against Morris and Dudley.
(Counsel addressed the Court on applications for leave to appeal against sentence.)
Having listened to Counsel's argument, we are of the opinion that all these sentences are what one might describe as on the high side. On the other hand, we do not find it possible to deal with any one of these three otherwise than in terms of a custodial sentence.
Having decided those two matters of principle, we have then had to try and produce the most sensible answer we can out of the powers available to this Court and having particular regard to the limitation on the sentences which are available for those under 21.
Doing our best in those circumstances, we shall allow the appeals and substitute sentences as follows: first of all, in the case of Cato we think that had we a free hand we should have sentenced him to prison for something of the order of eighteen months to two years. We cannot do that because of his age. We substitute the only possible alternative having regard to his age, which is Borstal training on both counts concurrent. So far as Morris and Dudley are concerned, Morris is subject to the same type of limitation as Cato, being under 21 at the relevant time; Dudley is not. We think that Morris and Dudley should be treated alike and that in place of the sentences imposed upon them they will each serve a sentence of six months' imprisonment concurrent on each count.
