England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		13 December 2001

Thursday 13 December 2001

1. LORD JUSTICE KEENE: This appeal raises a short but important point about the offence of manslaughter by an unlawful and dangerous act. On 23 May 2001, at Northampton Crown Court, before His Honour Judge Hall, the appellant was convicted by a majority verdict of ten to two of manslaughter, for which he was sentenced to three years imprisonment. He also pleaded guilty to a count of possession of a class A controlled drug, namely heroin, for which he was sentenced to one day's imprisonment to run concurrently. The total sentence therefore was three years' imprisonment. He now appeals against the conviction for manslaughter, the trial judge having granted a certificate in the following terms:

"Was I correct as a matter of law to direct the jury that it is unlawful for a man to inject heroin into himself?"

2. The facts of the case are not complicated or, sadly, uncommon. On 27 August 2000, Edward Escott died as a result of an injection of heroin. The only person with him was the appellant. They were both vagrants. They did not know each other well, but in July and August of that year they were living in, or associated with, a night shelter at Northampton. Mr Escott regularly abused drugs. Drugs other than heroin were found in his body, as was alcohol. However, although he smoked heroin, no one had seen him inject it. The appellant was a heroin addict who did inject the drug. The appellant did not give evidence at trial. When interviewed by the police he had said that he and Escott had agreed to put £5 each into a kitty. The appellant then contacted his dealer and bought a £10 bag of heroin. He and Escott then found a suitable place on the stairway of a block of flats. Using his own "kit", the appellant prepared the heroin injection by putting the powder into a spoon, adding the citric acid and water, heating it up and drawing it into the syringe. He then handed the syringe to Escott. Escott removed the belt from his own trousers, used it as a tourniquet and injected the heroin into himself. The appellant washed the syringe and injected the heroin into himself. By the time the appellant had recovered from the effects of the heroin, Escott was dying. The appellant arranged for a passer-by to call an ambulance and then left the scene. Escott was taken to hospital but died.
3. The prosecution did not originally accept this version of events. They argued that there was evidence from which it could properly be inferred that the appellant had injected Escott. However, the judge took the view that that was not sufficiently supported by the evidence and would be "guesswork". He left the case to the jury on the basis that Escott had injected himself with the heroin.
4. Although there were several possible bases relied on by the Crown for the manslaughter charge, the possibilities were narrowed down by the time the matter was left to the jury. The Crown had been running manslaughter by gross negligence, but the judge was not prepared to leave such a verdict open to the jury. The Crown had also relied on section 23 of the Offences against the Person Act 1861 which insofar as material 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 ...."

5. The argument was that if the appellant's actions came within the terms of that section then they were unlawful and would support a verdict of unlawful and dangerous act manslaughter. However, the judge did not direct the jury that they should consider whether the appellant had "caused" the heroin to be administered to or taken by Escott or had otherwise administered it to him, and so it seems that the judge was not persuaded by the legal argument which had been advanced by the Crown to that effect. The direction actually given to the jury was in the following terms:

".... manslaughter, is proved in this particular case if the prosecution satisfy you so that you are sure that the defendant assisted and deliberately encouraged Mr Escott to take the heroin."

6. That direction was repeated to the jury. That formulation is appropriate where someone is charged with aiding and abetting an offence. It would render him liable as the secondary party in circumstances where he does not cause the actus reus because the voluntary act of another intervenes.
7. The jury were told that there was no dispute that the heroin in the syringe was a cause of death. The direction given by the judge, which we have just quoted, was the result of a ruling made by him after extensive legal argument. He ruled that following the decision in R v Kennedy [1999] Crim LR 65, the self-injection by Escott of the heroin was itself an unlawful act. It followed that aiding and abetting such an offence would make the appellant criminally liable as a secondary party for that unlawful act which in turn had caused the death of Escott.
8. It will be observed that it was not contended that the manslaughter charge could properly be based merely on the supply of the heroin to Escott. Certainly that was not how the matter was left by the judge to the jury. That supply of heroin was undoubtedly unlawful, but the difficulty about relying on it as a basis for manslaughter would have been one of causation. Escott was an adult and able to decide for himself whether or not to inject the heroin. His own action in injecting himself might well have been seen as an intervening act between the supply of the drug by the appellant and the death of Escott. The chain of causation was probably broken by that intervening act. That was the interpretation placed on the case of R v Dalby (1982) 74 Cr App R 348 in the subsequent decision of this court in R v Goodfellow (1986) 83 Cr App R 23, 27. It accords with a passage from Professor Glanville Williams' Textbook of Criminal Law (2nd ed), page 39, which was cited in argument below:

"What a person does if he has reached adult years, is of sound mind and is not acting under mistake, intimidation or other similar pressure, is his own responsibility and is not regarded as having been caused by other people. An intervening act of this kind, therefore, breaks the causal connection that would otherwise have been perceived between previous acts and the forbidden consequence."

9. We return to the question whether the judge was correct to rule that the self-injection by Escott with heroin was an unlawful act. In this context "unlawful" means that the act has to be a criminal offence: see Franklin (1883) 15 Cox CC 163, and Lamb [1967] 2 QB 981, 988D-E.
10. On behalf of the appellant Mr Rumfitt QC relies on the decision of this court in R v Cato (1976) 62 Cr App R 41. That was a case where the appellant Cato had injected the deceased with morphine with his consent, but bringing about his death. The court upheld the conviction for manslaughter by an unlawful and dangerous act because there was an offence committed by the appellant under section 23 of the 1861 Act, namely administering a noxious thing. That was a case where the appellant had injected the deceased, not one of self-injection by the deceased. Mr Rumfitt relies on a passage at page 47 where the court in its judgment given by Lord Widgery CJ said this:

"Of course, on the first approach to manslaughter in this case 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...."

11. That, it is submitted, is clearly right. The possession or the supply of heroin is made an offence under the Misuse of Drugs Act 1971, but nowhere does that statute make it an offence to inject oneself with drugs.
12. It is sought on behalf of the appellant to distinguish the case of Kennedy relied upon by the trial judge. The facts of that case were very similar to those of the present appeal. Kennedy had heated heroin and water in a teaspoon, put some of it into a syringe and handed the syringe to the deceased in return for money. The deceased immediately injected it into his own arm. He died as a result. In upholding the conviction for manslaughter, the court relied upon another passage in Cato, where it had been said at page 47 that, quite apart from the appellant's act being unlawful under section 23:

"We think that 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."

13. In Kennedy Waller LJ, giving the judgment of the court, said at page 6 of the transcript:

".... the injection of the heroin into himself by Bosque [the victim] was itself an unlawful act, and if the appellant assisted in and wilfully encouraged that unlawful conduct, he would himself be acting unlawfully."

14. It is contended by Mr Rumfitt that the court in Kennedy misinterpreted Cato. It is said that the injection was unlawful in Cato because administering a drug to another would be contrary to section 23. There is, emphasised Mr Rumfitt, no offence of injecting heroin into oneself; consequently, aiding and abetting the self-administration of heroin is not unlawful. So far as section 23 is concerned, and its reference to "administering a noxious substance or causing such a matter to be taken", it is emphasised that the judge did not leave any issue to the jury on the basis of section 23. It is argued that it cannot be said that the actions of the appellant caused the heroin to be taken by Escott because there was here an intervening act of Mr Escott. The trial judge seems to have accepted that. That is why he did not leave to the jury the issue of whether the acts on the part of the appellant had caused Escott's death. Mr Rumfitt submits that there is a line to be drawn, and it is to be drawn where the voluntary act of the deceased intervenes.
15. For the prosecution Mr Coker QC contends that there is no conflict between Cato and Kennedy and that the latter was rightly decided. However, he does not seek to argue that self-injection with heroin is of itself an unlawful act. In his words the prosecution "is not happy" with the judge's conclusion to that effect. Nonetheless, it is submitted that the conviction can be upheld, albeit on a somewhat different basis. It is argued that all the ingredients of manslaughter were present in the case with which we are dealing; that the unlawful act was the supply of the heroin; and that that was a dangerous act because of the likelihood that Escott would take it to his ill-effect.
16. So far as causation in concerned, Mr Coker reminds us that the prosecution does not have to prove that the acts of the appellant were the sole cause of the death of Escott, but simply that they amounted to a substantial cause. The appellant's assistance and encouragement, as found by the jury, could amount to a contributory cause of death. However, it is accepted by Mr Coker that the judge here did not direct the jury to consider whether the appellant's acts caused the death of Escott. That is in some contrast to what happened at trial in Kennedy. Our attention has been drawn to page 11 of the transcript in that case where the questions left to the jury in a formal sense are set out. It is to be noted that the fourth of those questions reads as follows:

"Are we sure that the defendant's act was a significant cause of death?"

17. Mr Coker draws our attention also to the following passage from the decision in Kennedy where part of the summing-up by the trial judge is quoted. The judge in that case 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."

18. It is argued that, if the unlawful act is the supply and the handing of the mixture in a syringe to the victim, one can find manslaughter properly based on the facts of the case such as the present. In Kennedy the jury had found that there was an unlawful supply of drugs and that that, plus the encouragement given by Kennedy, caused the death of the victim. That was a dangerous act because the encouragement carried with it the risk of harm. In the present case it is suggested that the jury's findings that the appellant's acts assisted and encouraged Escott must be sufficient to show causation.
19. We begin with the authorities which have been cited to us. The earliest in time, Cato, undoubtedly arrived at the right result since to inject someone with heroin and water would normally be an offence under section 23 of the 1861 Act. That was the basis of the decision, and both the passages relied on (one by each side) from page 47 of the report were strictly obiter. The case was in any event concerned with the injection by one person of another with heroin and water, not with self-injection. The statement that injecting the deceased with that mixture was an unlawful act, irrespective of section 23, is not explained at any length. It may be that it was based on the fact that the appellant was thereby supplying heroin to the deceased -- a criminal offence.
20. In Dalby the appellant had supplied the deceased with a class A drug (Diconal) in tablet form and both had then injected themselves intravenously. It was not contended that the act of self-injection was unlawful. The supply of the tablets clearly was, and the case turned on the issue of causation. But the end result was that the conviction for manslaughter was quashed.
21. The facts of Kennedy have already been set out earlier in this judgment. However, it is not easy to see on what basis the court concluded that the act of self-injection was unlawful because there is no real elaboration of this point. It is not surprising that the Crown in this present appeal finds it difficult to uphold that particular sentence in the report. The decision on this aspect has been criticised in both Archbold 2002 at paragraph 19-100 and in Smith and Hogan (9th ed) page 432. If Kennedy is rightly decided on this aspect, then it would seem that Dalby should have had a different result since on the facts there seems to have been a comparable degree of assistance and encouragement by the appellant in the latter case to that which took place in Kennedy. There is no offence under the Misuse of Drugs Act 1971, or other statute, or at common law, of injecting oneself with a prohibited drug.
22. There is the offence of possession of such a drug, and that offence was committed by Escott, the deceased. We have considered, therefore, whether that renders the act of injection unlawful for these purposes, but we find it difficult to see that it can do so. The causative act (the act causing death) was essentially the injection of the heroin rather than the possession of it. Self- injection undoubtedly requires unlawful possession in a case such as this, but it is not in itself a separate offence. No one could be charged with injecting himself with heroin, only with the possession of it. The deceased was in possession of the heroin before he injected it and also after he had injected it. Such possession amounted to an offence, but the act of injecting was not itself part of the offence. It was merely made possible by the unlawful possession of the heroin.
23. It seems therefore to this court that the dictum of Lord Widgery CJ in Cato, namely that it is not an offence to take heroin, was soundly based. To inject another person with heroin, as in Cato, is likely to be unlawful, not merely because of section 23 but also because it would amount to a supply of a prohibited drug. But that is not this case.
24. There is a further problem about the basis of the present conviction, given the direction by the trial judge. The case was not left to the jury on the footing that the appellant might have caused the death of Escott, and that is perhaps understandable since the act of self-injection was seen by the judge as a voluntary act of an adult not labouring under any mistake as to what he was doing. The judge seems to have taken the view that the chain of causation would have been broken by Escott's own action. It follows from that that the appellant could only have been guilty of manslaughter as a secondary party and not as a principal. But in that case who is the principal guilty of manslaughter? As there is no offence of self-manslaughter, it is difficult to see how the appellant could be guilty of that offence as a secondary party because of his encouragement or assistance to Escott over the injection of the drug.
25. We accept that there may be situations where a jury could find manslaughter in cases such as this, so long as they were satisfied so as to be sure that the chain of causation was not broken. That is not this case because causation here was not left to the jury. The argument advanced by Mr Coker that the jury found assistance and encouragement on the part of the appellant will not, in our judgment, suffice. Assistance and encouragement is not to be automatically equated with causation. Causation raises questions of fact and degree. The recipient does not have to inject the drug which he is encouraged and assisted to take. He has a choice. It may be that in some circumstances the causative chain will still remain. That is a matter for the jury to decide. The Crown's current approach as argued on this appeal hearing, namely that the supply of heroin is unlawful and can be a dangerous act causing death, is sound. The most obvious case is where the supply takes the form of one person injecting the other who then dies. The position is more difficult where the victim injects himself, but there may possibly be situations where the chain of causation could be established. It is, however, important that that issue be left to the jury to determine, as happened at the trial in Kennedy.
26. The trial judge in a case such as this, after identifying the unlawful act on the part of the defendant relied upon, must direct the jury to ask whether they are sure that that act was at least a substantive cause of the victim's death, as well as being dangerous. That did not happen here, and we cannot see that the jury's finding can be seen as establishing causation between unlawful supply on the one hand and death on the other. That is not how the matter was left to them. It may seem to some that there is morally not a great deal between this situation where A hands B a syringe containing a drug such as heroin, with death resulting, and that where A injects B with his consent with the contents of the syringe. But the vital difference (and this is why causation cannot be assumed) is that the former situation involves an act of B's taken voluntarily and leading to his death. We do not wish to suggest that there may not sometimes be cases where, on somewhat different facts, manslaughter by way of gross negligence may arise if a duty of care can be established, or where section 23 may be relied on so long as the chain of causation is not broken.
27. But for the reasons already given this conviction cannot be regarded as safe and it follows that it will be quashed. This appeal is allowed.