Scottish High Court of Justiciary Decisons

The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord Murray and Lord Morison for a hearing on 17 November 1994. Eo die, their Lordships made avizandum.

At advising, on 15 December 1994, the opinion of the court was delivered by the Lord Justice-Clerk (Ross).

OPINION OF THE COURT—The circumstances which have given rise to this reference in terms of sec 263A of the Criminal Procedure (Scotland) Act 1975 are that a person, X, was indicted for trial in the High Court of Justiciary at Edinburgh on an indictment containing 12 charges. Charge 11 was in the following terms: [his Lordship narrated the terms of the charge and continued:]

After the close of the Crown case, counsel for the defence made a submission in terms of sec 140A of the Criminal Procedure (Scotland) Act 1975 to the effect that there was no case to answer in respect of charge 11. It is stated in the reference that this submission fell to be decided on the footing that there was sufficient evidence to establish that X supplied a quantity of amphetamine to a group of people which included the deceased, that the purpose of the supply was abuse by the deceased and others in the group, that the deceased took a dose of this drug and that this dose caused her death.

It is further stated in the reference that the trial judge held that X could not be said to have caused the deceased's death in the sense necessary to establish guilt of culpable homicide because the deceased sought the supply of the drug and decided upon the dose she would take, and X did not instigate, suggest or encourage the ingestion of the drug except by the actual supply. The trial judge accordingly sustained the submission on charge 11 insofar as it related to a charge of culpable homicide, and acquitted X on said charge of culpable homicide. X was subsequently acquitted in respect of what remained of charge 11.

In this reference the Lord Advocate refers to this court for its opinion on the following question of law: [his Lordship quoted the question and continued:]

Before this court, the advocate depute accepted that the Crown required to prove that the supply of the controlled drug caused the ingestion of it by the deceased. He also recognised that it was not averred in the charge that X knew that the controlled drug was lethal or potentially lethal in the quantity supplied, but he maintained that it was unnecessary to prove that X should have foreseen what occurred.

The advocate depute also maintained that since the issue had been determined in the context of a submission under sec 140A of the Criminal Procedure (Scotland) Act 1975, the critical question was whether there was sufficient evidence to support the part of the libel alleging culpable homicide. The advocate depute drew attention to what the trial judge stated in his report. He pointed out that in his report the trial judge expresses the view that the chain of causation was broken because (i) the deceased actually sought the supply of the drug, and when it was obtained divided it and selected the dose which she would take; and (ii) because X did not instigate, suggest or encourage the ingestion of the drug.

The advocate depute maintained that these two factors referred to by the trial judge did not have the effect of stopping the chain of causation from starting nor did they interrupt the chain of causation. He submitted that the trial judge was in error in not recognising that the present case was governed by the principles laid down in Khaliq v HM Advocate and Ulhaq v HM Advocate. In these two cases the charges libelled culpable and reckless conduct, but the advocate depute maintained that the principles laid down in these cases were equally applicable to the present case. In the present case, it was libelled that the supply of the controlled drug was illegal, and the advocate depute submitted that supply in these circumstances amounted to culpable and reckless conduct which caused a real risk of injury, and that injury and death had in fact resulted. In that situation he maintained that there was sufficient evidence to entitle the jury to convict of culpable homicide.

In essence the advocate depute's submission was that the case of Khaliq v HM Advocate was to all intents and purposes on all fours with the present case. He also contended that his submissions derived further support from Ulhaq v HM Advocate.

Senior counsel, however, who appeared for X along with junior counsel, maintained that the trial judge had reached the correct decision in this case. He contended that the illegal act which amounts to culpable homicide must be proved to have had direct physical effect upon the victim, causing his death. In the present case he submitted that for X merely to have supplied the drug to the deceased was not sufficient to justify a charge of culpable homicide. For the Crown to succeed there must be proof that the death of the deceased was the direct result of the supply. Senior counsel accepted that in the present case there had been supply of the controlled drug to the deceased, and he also conceded that on the authority of Khaliq v HM Advocate, supply might equal administration. However he maintained that, as regards ingestion of the controlled drug, it all depended upon the quantity which the deceased chose to take. He also submitted that Khaliq v HM Advocate and Ulhaq v HM Advocate were different to the present case in that in each of these cases there were averments of recklessness. However, he pointed out that in the present case there was no averment of recklessness. Senior counsel also founded upon R v Dalby, and submitted that this court should follow what was stated by the Court of Appeal in England in that case. Senior counsel also referred to Gordon's Criminal Law (2nd edn), para 26–26 and HM Advocate v Sutherland.In HM Advocate v Sutherland reference had been made to Finlayson v HM Advocate.

In all the circumstances senior counsel submitted that the trial judge had been entitled to hold that evidence that X had supplied the controlled drug was not sufficient to support a charge of culpable homicide, and that he was accordingly well founded in acquitting X of charge 11 insofar as it libelled culpable homicide.

We have come to the conclusion that the argument of the advocate depute is to be preferred. In our opinion the trial judge was in error when he concluded that the present case was not covered by Khaliq v HM Advocate and Ulhaq v HM Advocate. He appears to have distinguished these two cases upon the view that in Khaliq v HM Advocate there was an element of instigation and encouragement of the abuse of the substance supplied, and because there was no discussion in these cases of causation in general.

In our opinion there are close similarities between the present case and Khaliq v HM Advocate, and the observations of the court in Khaliq v HM Advocate are highly pertinent in the present case. In both cases the accused had knowledge of the purpose for which the substance in question was to be used; in both cases there was no question of the supplier instigating the abuse of the substance; and in both cases the amount of the substance which was abused was at the discretion of the person abusing it.

Of course Khaliq v HM Advocate was not a case of culpable homicide but was a case of culpable and reckless conduct. There are, however, similarities between charges of culpable and reckless conduct on the one hand and cases of culpable homicide based on culpable and reckless conduct. It is clear that the trial judge was indeed in error when he held that Khaliq v HM Advocate could be distinguished from the present case because there had been an element of instigation on the part of the accused and because in the present case the deceased had actually sought the supply of the drug. In Khaliq v HM Advocate at p 32, the Lord Justice-General said: ‘There is ample authority for the view that the wilful and reckless administration of a dangerous substance to another causing injury or death, is a crime at common law in Scotland. Examples are to be found in cases such as HM Advocate v Brown and Lawson, HM Advocate v Jean Crawford. In these cases the victims were young children but it does not appear to me that the relevancy of the charges there made depended essentially on the age, state of knowledge, or attitude of the victim. In the passage in Alison, Criminal Law, Vol 1, p 629, dealing with this topic it is not suggested that the criminal character of the administration is affected by the absence of any pretence as to the nature of the substance administered, or by the knowledge of the victim of the properties of the substance administered. The case of HM Advocate v Milne and Barry throws further light upon the problem. In that case a charge libelling the wicked and felonious administration of jalap—a powerful purgative, dangerous when taken in quantity—to an adult to his injury was held to be irrelevant because it was not said to have been administered with criminal intent. The point was that the jalap could have been administered for a good medical reason. Lord Cowan was of opinion that had the charge libelled that the jalap had been administered "wilfully and culpably" it might have amounted to a criminal charge, and it is to be noted that the charge did not libel any pretence nor that the jalap was administered without the knowledge and consent of the victim. Upon the matter of the consent of a victim to conduct causing injury to him, or his death, the law is perfectly clear. Consent on the part of the victim—even instigation by the victim—is of no importance at all. Clear authority is to be found for that proposition in the cases of HM Advocate v Rutherford(murder); Smart v HM Advocate (assault) and Finlayson v HM Advocate (culpable homicide by injection of a controlled drug causing death). In light of what I have said so far I have no doubt whatever that had charge (1) libelled that the appellants had, culpably, wilfully and recklessly, held the containers supplied to the noses of the children to enable them to inhale the vapours of the solvents to their injury, the relevancy of such a charge, bearing in mind the state of knowledge attributed to the appellants, would be beyond question. I go further and say that the relevancy of such a charge would not have been impaired had the alleged consenting victims of the alleged conduct of the accused been of full age. It is nothing to the point either that the victims might, without committing any criminal offence, have inflicted the same injury upon themselves, for the question is simply whether the accused has, by wilful and reckless conduct on his part, caused real injury to a third party.’

In that case the Lord Justice-General also made it clear that supply might be the equivalent of administration. At p 33 he said: ‘Whether the supply was a cause of the injury is a matter of fact and in the particular circumstances averred it would, in my opinion, be open to the judges of fact to hold that the supply not merely of solvents, but of what the press vividly describe as "glue-sniffing kits" was a cause of injury to the persons supplied who proceeded to supply them for the known, intended, and expected purpose, namely inhalation of the injurious vapours of the solvents from the containers.’

Subsequently the Lord Justice General added: Turning to the more important obstacles to relevancy founded upon the appellant's behalf it is my opinion that the facts and circumstances libelled in charge (1) are such as to permit the judges of fact to conclude that there was no material distinction between what the appellants are said to have done, and direct administration of the noxious fumes. The supply of "glue-sniffing kits" was sought or invited for the particular purpose of abuse of the solvents. The purpose and the intention of the supply libelled was that the solvents should be abused, employing the means of abuse provided. The solvents were, it is averred, abused, and this could be regarded as the expected, intended and probable consequence of the supply. There are undoubtedly circumstances in which the distinction between supply and administration of a noxious substance will not be material and I do not regard the distinction as material for the purpose of relevancy in the particular circumstances of this case. As the Lord Justice-Clerk (Aitchison) pointed out in the case of HM Advocate v Semple at p 44: ‘Of course supply by itself does not amount to a crime, but here it is coupled with use, and the distinction between supply and administration does not appear to me to be material in a case where the supply is closely related to the use by words of instigation or by some act of instigation on the part of the panel.’ In this case, upon the facts libelled, it would in my opinion be open to the judges of fact to conclude that the supply libelled was closely related to the use, even in the absence of words of instigation on the part of the suppliers. The purpose of the supply was no proper purpose and, it may appear, was obviously intended to be carried out. It was abuse of the solvents and, in the circumstances averred, no words or acts of instigation are necessary to demonstrate the close relationship of the supply and the abuse which occurred.’

The Lord Justice-General also made it plain that the chain of causation was not broken merely because some act of the victim was required before the injurious consequences could take place. At p 33 he said: ‘I am fully satisfied, further, that it is not fatal to the relevancy of charge (1) that a voluntary act on the part of the recipients of the "glue-sniffing kits" was required to produce the injurious consequences which they are alleged to have suffered. The causal link is not, of necessity, broken by that circumstance.’

In these circumstances we are satisfied that the reasons which the trial judge gave for distinguishing the case of Khaliq v HM Advocate are unsound. That case was decided upon principles which in our opinion are equally applicable to the present case, and the observations of the Lord Justice-General in Khaliq v HM Advocate appear to us to support the Lord Advocate's contention in this case that there was sufficient evidence to support the libel of culpable homicide.

The same is true of Ulhaq v HM Advocate. There again there was no evidence of instigation on the part of the accused. In that case at p 615J the Lord Justice-General said: ‘The essence of the charge therefore was that the appellant knew that the purpose of the acquisition of the solvents was their abuse and that the supply of them to their recipients was a cause of that abuse. That is sufficient for the conduct to be criminal, because once that is established then there is no material distinction between the supply of the solvents and the direct administration of their fumes to the purchasers which, it was accepted, would plainly be criminal.’

Of course we recognise that, as senior counsel submitted, there is in charge 11 no express averment of culpable and reckless conduct. However in charge 11 it is libelled that the supply was unlawful, and that the supply was of a controlled and potentially lethal drug. It is also libelled that the drug was supplied in a lethal quantity. It is clear from what is said in the reference and in the trial judge's report that X supplied a quantity of the controlled drug to a number of people including the deceased, and that the purpose of that supply was so that the deceased and others could take doses of the drug. In our opinion such conduct on the part of X is the equivalent of culpable and reckless conduct. No doubt the extent of any injurious consequences would depend upon the quantity of the drug which the deceased ingested, but since the purpose of the supply was obviously for the drug to be ingested by those to whom it was given by X, it does not appear to us that this affects the matter. As the Lord Justice-General pointed out in Khaliq v HM Advocate, the causal link is not broken merely because a voluntary act on the part of the recipient of the drugs was required in order to produce the injurious consequences.

So far as R v Dalby is concerned, the Court of Appeal held that where a charge of manslaughter was based on an unlawful and dangerous act which inadvertently caused death, the act had to be directed at the victim and be likely to cause him immediate injury in order to constitute the actus reus of manslaughter.

Senior counsel founded upon this case, but we are not persuaded that the decision in that case has any relevance to the present case. We cannot affirm that the law in England relating to manslaughter is the same as the law in Scotland relating to culpable homicide. In any event, having regard to the nature of this charge, we would see no difficulty in holding that the act of X was directed at the deceased, if indeed that was a requirement of the law relating to culpable homicide. Insofar as the Court of Appeal appear to have held that it was necessary to show that the unlawful act was not only directed at the victim but was likely to cause immediate injury, we are not persuaded that that is a rule of our law so far as culpable homicide is concerned. Under Scots law the test is not one of foreseeability. In Gordon's Criminal Law(2nd edn), para 26–02, Sheriff Gordon states: ‘For the purposes of the crime of involuntary culpable homicide A will be held to have caused B's death where B's death results directly from an act or omission by A, and whether or not it was a foreseeable result of that act or omission. There are some kinds of culpable homicide which require negligence on A's part and for that reason are confined to circumstances where B's death was foreseeable, but that is a question of mens rea; so far as the actus reus of the crime is concerned the criterion is that of directness and not that of foreseeability.’

We agree that that is a correct statement of the law, and we have no difficulty in concluding that R v Dalby gives no assistance in determining the present case.

For the foregoing reasons we are satisfied that the trial judge was wrong to acquit X on charge 11 insofar as it contained an allegation of culpable homicide. We shall accordingly answer the question in the Lord Advocate's petition in the negative.