Act: Macara, Solicitor Advocate, Fitzpatrick, Solicitor Advocate; Paterson Bell,

Edinburgh (First Appellant)

Act: Shead, Farquharson; Drummond Miller, Edinburgh (Second Appellant)

Alt: Wolffe, Q.C., A.D., Cameron; Crown Agent

27 January 2009

Introduction

[1] The first appellant, Kevin MacAngus, has been charged on indictment before the High Court at Glasgow. The first charge on the indictment, as served, was in the following terms:

[3] Both appellants raised preliminary pleas to the relevancy of the indictments in so far as concerned the charges of culpable homicide. These pleas were in each case repelled at a preliminary hearing. Against those decisions both appellants, with leave, now appeal.

[4] The appeals raise questions about whether the approach adopted by this court in Lord Advocate's Reference (No. 1 of 1994) 1996 JC 76 to cases involving death following the supply of drugs is correct. In particular, it is suggested that the position in Scotland should be reviewed in light of the recent decision of the House of Lords in R v Kennedy (No.2) [2008] 1 AC 269. A bench of five judges has therefore been constituted for this hearing.

Background

[5] Unusually, each appellant has agreed with the Crown a joint minute of admissions outlining certain facts relevant to their respective cases. Those facts, so far as relevant to the present appeals, are outlined below.

Kevin MacAngus

[6] The first appellant was a friend of the deceased and knew the other individuals named in charge (1). They had visited him at the locus, his home address, on the date of the offence. He purchased some ketamine and returned to the flat with it. Others within the flat, including the deceased, contributed to the cost of the purchase, the intention being that the drug would be shared. The deceased, the appellant and others, although not everyone within the flat, then nasally ingested some of the ketamine. The following morning the appellant found the deceased dead at the locus. The cause of death was ketamine intoxication. While the deceased had consumed some alcohol, the level of ketamine in his blood was sufficient on its own to cause death. According to the post mortem report, this could have been caused by repeated snorting rather than one very large dose. Forensic analysis of the deceased's hair indicated that he had previously ingested ketamine. It was agreed (without elaboration) that ketamine was a "potentially lethal" drug. It is used as an anaesthetic and abused with stimulant, psychedelic and dissociative effects.

[7] The second appellant was an acquaintance of the deceased and her partner William Smillie, the complainer in charge (2). On the afternoon of the offence all three had been drinking at the locus, which was the home of the deceased. Having discussed the appellant's heroin use with him, the deceased and Smillie decided to try it. The appellant purchased a bag of heroin with £20 given to him by Smillie, returned to the locus with the drug and prepared it for injection. The deceased being unable to do it herself, the appellant injected heroin into her arm, at her request and with her consent. She then slumped on the floor. Smillie informed the appellant that he had never used heroin before. Again of consent, the appellant injected a third of the bag of heroin into Smillie, who immediately passed out. Paramedics were called and arrived to discover that the deceased was not breathing. She was later pronounced dead. The cause of death was the cumulative effect of the ingestion of alcohol and heroin intoxication. Smillie was close to death: his blood contained a potentially fatal level of morphine and but for medical intervention he would have died.

[8] On behalf of the first appellant Mr Macara presented four core submissions. The first two, which represented the appellant's primary position, were related and were supported by reference to R v Kennedy (No.2) [2008] 1 AC 269, which he asked this court to follow: first, the ingestion of ketamine by the deceased, an adult with full capacity who was not vulnerable and who had previously ingested the drug, was an autonomous act; and, second but related to the first submission, that act was a novus actus interveniens which broke the chain of causation connecting the purchase and the supplying of the drug to the deceased's death. The other two submissions were that the conduct of the first appellant was not "the equivalent of culpable and reckless conduct", and that an act of administration, rather than mere supplying, was required before he could be convicted of culpable homicide.

[9] Addressing the foundation of the charge, Mr Macara submitted that there was a "perception" amongst members of the legal profession in Scotland that an accused who supplied an individual with a controlled drug for ingestion, which ingestion then caused death, was, ipso facto, guilty of culpable homicide, given the description of such acts as "the equivalent of culpable and reckless conduct" in Lord Advocate's Reference (No.1 of 1994) 1996 JC 76 (per Lord Justice Clerk (Ross) at page 81). The appellant's actions could be categorised as "involuntary" culpable homicide involving an "unlawful" act (Gordon, Criminal Law of Scotland (3^rd ed.) paras.26.01-.03 and 26.24-.27; cf Hume vol. I, pages 233 - 234). Few modern cases falling within that category did not involve a degree of recklessness or intent to cause some physical harm (cf Finnigan, March 1958, unreported, which involved "gross negligence", and Sutherland v HM Advocate 1994 JC 62, which involved jury directions making reference to the need for "recklessness" in a case involving fire-raising - both cited by Gordon at para.26.27). It was now established that mens rea involving a significant element of blame was required in "lawful act" culpable homicide cases (Transco plc v HM Advocate 2004 JC 29, Lord Osborne at para.[6]; Lord Hamilton at para.[36]). Similarly, culpable homicide charged in the context of fatal road traffic cases normally libelled recklessness and required mens rea to a more exacting standard than cases such as the present (McDowall v HM Advocate 1998 SCCR 343; Paton v HM Advocate 1936 JC 19). In an earlier case, where a charge of culpable homicide alleged that the accused had "recklessly" injected controlled drugs into the deceased, the trial judge gave specific directions not only on "unlawful act" culpable homicide (which there relied on proof of possession of controlled drugs), but also on what was required if the jury were to find that death had resulted from the accused's recklessness (Finlayson v HM Advocate 1979 J.C. 33, Lord Cowie's unreported charge to the jury). The accused was convicted of reckless injection and on appeal the case was dealt with on that basis.

[10] There was no allegation of recklessness in the indictment which the appellant faced. If, however, contrary to the current perception of the decision in Lord Advocate's Reference (No. 1 of 1994) recklessness were introduced as a matter of proof, there were factors in the present case which were relevant: the deceased had previously used ketamine; that drug was a cause of death in very few drug-related deaths, and in fewer still was it the sole cause (Overview of Deaths Associated with Ketamine Misuse in the UK (1993 - 2006) Journal of Clinical Psychopharmacology, Volume 28, Number 1, page 114; Drug-related deaths in Scotland in 2007, General Register Office for Scotland); and each individual within the flat had been free to take as little or as much of the drug as he or she wished. Foreseeability of harmful consequences to the deceased in these circumstances was a relevant factor in establishing recklessness (cf Harris v HM Advocate 1993 JC 150).

[11] The appellant's case could be distinguished from Khaliq v HM Advocate 1984 JC 23 and Ulhaq v HM Advocate 1991 S.L.T. 614. They involved solvent abuse, which was not controlled by statute and could only therefore be prosecuted on the basis of culpable and reckless conduct; and Khaliq involved the supply of a noxious substance to children. Moreover, in Khaliq, the Lord Justice General (Emslie) had relied on a number of nineteenth century cases concerning the ingestion of noxious substances which were of limited assistance as it was not clear that they involved volitional acts by the person ingesting the drug (HM Advocate v Brown and Lawson (1842) 1 Broun 415; HM Advocate v Jean Crawford (1847) Arkley 394; HM Advocate v Milne and Barry (1868) 1 Couper 28). Despite what was said in Khaliq, a distinction did fall to be made with cases which did not involve administration of a noxious substance (cf Lord Justice General Emslie at pages 32 -34). The voluntary ingestion of a drug by a competent adult was a novus actus interveniens which broke the causal link. It was an ultroneous (in the sense of a voluntary) act. The case of Ulhaq was of little assistance as it did not address these issues directly (cf Lord Coulsfield's report to the High Court in Lord Advocate's Reference (No. 1 of 1994). In so far Khaliq, Ulhaq and Lord Advocate's Reference (No. 1 of 1994) might appear to support charge (1) (as framed), they had been wrongly decided and the approach in R v Kennedy (No.2) should be adopted in Scotland. It was accepted that Kennedy addressed "unlawful act manslaughter", and was not concerned with recklessness, and that the unlawful act identified in that case was a contravention of the Offences against the Person Act 1861, section 23, which did not apply in Scotland. Nevertheless, the principle decided was relevant to Scots law: it was "never" appropriate to find an accused guilty of manslaughter merely because he provided a fully competent adult with a syringe for immediate self-injection of a Class A drug (per Lord Bingham of Cornhill at para.25). The appellant relied particularly on the House of Lords' discussion concerning autonomy and causation, and the distinction which was made between supply and administration (per Lord Bingham at paras 14 - 17 and 19 -24).

[12] It was submitted as a fundamental principle of the common law that individuals ought to be held responsible for the consequences of their own actions (cf McTear v Imperial Tobacco Limited (2005) 2 SC 1, per Lord Nimmo Smith at paras 7.178 - 7.180). It was inconsistent with that principle that one person could cause the act of another (Kadish: "Complicity, Cause and Blame: A Study in the Interpretation of Doctrine", (1985) 73 Cal. L Rev. 323; see also Smith and Hogan, Criminal Law (12^th ed), especially at pages 82-4). If greater protection and sanction were required for drug-related deaths, it was more appropriate that Parliament, and not the courts, addressed the issue, particularly given the principles of causation and autonomy involved (cf Drury v HM Advocate 2001 S.C.C.R. 581 per Lord Nimmo Smith at para.[9] and Lord Mackay of Drumadoon at para.[3]). It had done so in other areas, such as deaths arising from driving offences. That provided the advantage of dealing with the issue comprehensively, rather than on a case-by-case basis. It was submitted that the correct approach to adopt to the issue of causation was one of common sense (cf. Gordon, paras 4.01-.56; Blaikie v British Transport Commission 1961 S.C. 44, per Lord Justice Clerk (Thomson) at page 49; Alphacell Ltd v Woodward [1972] AC 824, per Lord Salmon at page 847C). The issue had to be considered in context (Environment Agency v Empress Car Company (Abertillery) Ltd [1999] 2 AC 22, per Lord Hoffman at page 29). In the present case the true question was whether the appellant had caused the deceased's death. In addressing novus actus interveniens, the court in Khaliq had relied on a passage in The Oropesa [1943] P 32. That case involved an emergency at sea where it could be said that the human acts concerned were taken out of perceived necessity. In that context the decision was understandable, but could be distinguished. Different considerations applied in relation to the criminal law (R v Kennedy (No.2), per Lord Bingham at para.15).

[13] In closing his submissions, Mr Macara made reference to the different approaches adopted in other jurisdictions to deal with cases of this kind. His motion was that charge (1) be dismissed as irrelevant.

[14] In opening his submissions on behalf of the second appellant, Mr Shead submitted that there were three issues which he would address: (1) the basis in law on which the Crown could seek a conviction for culpable homicide; (2) the application of the principles of causation as explained in R v Kennedy (No.2); and (3) what role, if any, the consent of the victim had to play. He also confirmed that he had both a "broad" and a "narrow" point of relevance in relation to the culpable homicide charge.

[15] At the preliminary hearing the Advocate depute had indicated that the basis of the prosecution for culpable homicide was recklessness: the Crown could not now argue a case on the basis of unlawful act culpable homicide. It was of note that the use of the Misuse of Drugs Act as a route to conviction was considered by the House of Lords, but rejected by it (R v Kennedy (No.2), per Lord Bingham at para.7). It was not right that a different view be taken of a United Kingdom statute in order to provide a different route to a homicide conviction. Any attempt to innovate on the approach to culpable homicide by using a contravention of the Misuse of Drugs Act 1971 as the relevant unlawful act would be unconstitutional: that would not be illuminating the law, but changing it. The policy of the law was relevant here. It provided protection to those accused of crimes. Only in certain statutory exceptions was an individual found criminally liable for negligent or careless acts (cf section 3 of the Road Traffic Act 1988). There was no basis other than recklessness for a culpable homicide charge in such circumstances.

[16] Addressing the narrow point of relevance, Mr Shead noted that charges (1) and (2) both involved the administration of controlled drugs resulting in death or injury. However, only the second charge contained the words "culpable and reckless". That suggested that the charges proceeded on different bases. If it was correct that the only basis for the culpable homicide charge was culpable and reckless conduct, that charge was irrelevant as no words suggestive of recklessness had been libelled. Any suggestion that Schedule 3 to the Criminal Procedure (Scotland) Act 1995 allowed the relevant words to be implied into the charge raised issues of compatibility with the Article 6 right to a fair trial: the accused was not being given fair notice of the basis on which the charge was made against him (cf Human Rights Act 1998, section 6; Scotland Act 1998, section 57(2)).

[17] The wider relevance point turned on the issue of causation and consent. Mr Shead submitted that the approach adopted in R v Kennedy (No.2) as regards causation and autonomy should be followed in Scotland (Lord Bingham at para.14; cf McTear v Imperial Tobacco Limited). In that regard, no meaningful distinction could be drawn between this case and that of the first appellant: the deceased in this case was a consenting adult of sound mind, who made the decision about how the drugs were to be administered to her without suggestion, persuasion or instigation by the accused. There was no sound moral or public policy justification for distinguishing between supply and administration in these circumstances. If it was not a crime for a fully informed and responsible adult to administer a drug to himself, it could not be a crime for another to administer it to him at his instigation. The issue of consent was also relevant. As the act of injection was not, of itself, a crime the cases which suggested that the consent of a victim was no defence could be distinguished. Mr Shead drew an analogy with sexual cases in which consent operated to prevent any question of the accused having the mens rea of assault (McDonald v HM Advocate 2004 SCCR 161). In any event, even if consent was not a complete defence to a charge of culpable homicide in cases such as this, it might be relevant in establishing whether an accused had the necessary mens rea to establish recklessness (cf Reg. v Cato [1976] 1 WLR 110, Lord Widgery, CJ at page 117).

Submissions for the Crown

[18] Addressing the terms of the charges which the appellants had challenged, the Advocate depute submitted that they each averred facts which, if proved, would entitle the jury to infer the degree of recklessness required for culpable and reckless conduct: knowingly to inject someone with a noxious and prohibited substance, or to supply such a substance in the knowledge it was to be ingested, was clearly redolent of recklessness (cf Finlayson v HM Advocate). It was not necessary to aver the words "culpable and reckless" (Schedule 3, paragraph 3 of the 1995 Act). Moreover, the unlawfulness that was averred was a relevant adminicle in establishing that recklessness (HM Advocate v James Parker and James Barrie (1888) 2 White 79, pages 88-89 and 90 - 95). The decision in Lord Advocate's Reference (No.1 of 1994) had been over-interpreted: the Opinion only addressed whether the "no case to answer submission" had been correctly decided in that case. The Advocate depute accepted the need to establish mens rea in a crime of culpable homicide, and that in "lawful" act culpable homicide the necessary mens rea involved recklessness (Transco; Harris). The Crown's position was that these charges had as their bases the reckless conduct of each accused. (In order to clarify matters, the Advocate depute in the course of the discussion moved to amend charge (1) in each indictment by the insertion of the words "recklessly and" before the word "unlawfully", as well as by the insertion of the word "recklessly" before the word "inject" in charge (1) directed against the second appellant. Though opposed in hoc statu by Mr Shead, but not by Mr Macara, that motion was granted.)

[19] As a secondary proposition it was submitted that the common law recognised the category of unlawful act culpable homicide, although its ambit was not well defined (Hume vol. I pp 191 - 192). There was a suggestion that it was limited to "offences against the person" (Sutherland v HM Advocate 1994 SCCR 80). Not every statutory breach would be sufficient to found a charge of culpable homicide (cf Transco; Paton v HM Advocate; HM Advocate v Purcell 2007 SCCR 520, at para.15). However a distinction might be made with charges under the Misuse of Drugs Act 1971 . That Act sought to control drugs due to their pernicious effects on individuals. It was arguable that the unlawful act in such cases was directed towards a particular individual (cf Finlayson v HM Advocate). However, the Crown's main argument was that the charges averred a sufficient basis for a finding of recklessness.

[20] As regards causation, this was prima facie a question of fact for the jury (Finlayson; McDonald v HM Advocate 2007 SCCR 10). The approach in R v Kennedy (No.2) was not binding upon this court and ought to be rejected (Dickson v HM Advocate 2008 J.C. 181, per the Lord Justice General (Hamilton) at para.[27]). It was concerned with the law of manslaughter, which was not the same as the law of culpable homicide (Transco at paras [5] - [6] and [40]). The Crown accepted the principles of autonomy and individual responsibility as fundamental to the common law: those principles could equally support the view that someone who chose to supply illegal drugs should be held responsible for the consequences of that choice. Moreover, the reasoning in R v Kennedy (No.2) was based on the proposition that a voluntary human act could not be caused. That was a legal, not a factual proposition. However, it fell to be decided by practical considerations (Blaikie; Alphacell Limited v Woodward). Different legal systems could legitimately take a different approach. A review of other jurisdictions showed that different approaches were indeed taken. The Advocate depute drew our attention to a number of jurisdictions which adopted the same approach as that taken in Khaliq (Coyle v Commonwealth of Virginia November 27, 2007, unreported; Shirah v State 555 So 2d 807 (Ala. Cr. App. 1989); R v Nbakwa 1956 (2) SA 557; Ex parte the Minister of Justice: in re S v Grotjohn 1970 (2) SA 355; S v Hibbert 1979 (4) SA 717; R v Matthews 1950 SALR 671; and cf the position in France). The question fell to be informed by the purpose of the exercise (Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, per Lord Hoffmann at para.49). The present context involved the question of whether the accused bore a relevant measure of blame for the death of the deceased (Drury v HM Advocate, per Lord Justice General (Rodger) at para.[13]). In delict, where damages followed success, the unreasonable conduct of a pursuer could act as a novus actus interveniens (McKew v Holland & Hannen & Cubitts 1970 SC (HL) 20, per Lord Reid at page 25). However, the policy of the criminal law was concerned with whether the accused bore responsibility for the consequences of his acts and was punishable accordingly.

[21] There was no effective difference between supply and administration in the circumstances of these cases (cf HM Advocate v Semple 1937 JC 41). The approach in R v Kennedy (No.2) raised difficulties of distinction between cases where there was administration by injection and other cases where an accused has assisted in some lesser way with administration (cf R v Rogers [2003] 1 WLR 1374; R v Dias [2002] 2 Cr App R 5, page 96; Austin, 20 February 1986, unreported - referred to in Buckwell & Ghodse, Misuse of Drugs at para.11-017). This was avoided if the ultimate question asked was whether the accused bore responsibility, which was one which could be addressed by a jury with appropriate directions. The submissions on behalf of the second appellant which sought to broaden the principle of autonomy articulated in R v Kennedy (No.2) to situations where the deceased had consented to injection fell to be rejected. Such an approach had no basis in Scots law (HM Advocate v Rutherford 1947 J.C.1, para.18; Smart v HM Advocate 1975 JC 30, page 33; Sutherland, pages 94 - 95; Khaliq page 32). There were sound policy reasons for rejecting that approach, including, in the present context, the protection of the naïve drug user. Both cases should be remitted for trial.

Discussion - the foundation of the charge

[22] In Transco plc v HM Advocate this court required, with a view to identifying, for the purposes of that case, what was involved as regards mens rea in relation to involuntary culpable homicide, to consider how the crime of culpable homicide had been defined (per Lord Osborne at para.[4]). After a review of the authorities Lord Osborne, at the end of that paragraph, saw merit in formulations of the relevant mens rea to be found in Quinn v Cunningham 1956 JC 22, per Lord Justice General Clyde at pages 24 and 25, in the discussion of the mens rea of the crime of culpable and reckless conduct; the formulations in Quinn had subsequently been adopted by this court in Cameron v Maguire 1999 JC 63 at pages 65-6. Lord Hamilton, having noted in Transco at para.[36] that the degree of culpability for the purposes of culpable homicide of the kind under discussion had, it seemed, changed over time - a greater degree of culpability being more recently required - pointed out that, although in some of the authorities the formulations gave rise to some difficulties, they did "at least point not only to a degree of want of care which is grave but also to a state of mind on the part of the accused which is 'wicked' or amounts, or is equivalent to, a complete indifference to the consequences of his conduct" para.[37]). He further noted that in McDowall v HM Advocate 1998 SCCR 343 (a case of culpable homicide by the use of a motor vehicle) Lord Justice General Rodger, delivering the Opinion of the Court, had spoken of the appellant showing "complete disregard of potential dangers and of the consequences of his driving for the public".

[23] Although in Transco the accused was also charged with a statutory offence (a contravention of sections 3 and 33(1) of the Health and Safety at Work etc. Act 1974), there was there no attempt by the Crown to allege that, by virtue of that unlawful act and the resultant deaths, the accused was guilty of culpable homicide. The charge of culpable homicide proceeded solely on the basis of lawful but reckless conduct. In the present case the indictments prior to amendment did not include in the culpable homicide charges the adverb "recklessly". Although other averments in these charges might, if proved, have given rise to an inference of recklessness, an issue debated before us was whether, on the assumption that recklessness was not proved, the commission of an unlawful act (in a contravention in these cases, or at least in the case of the first appellant, of section 4(3)(b) of the Misuse of Drugs Act 1971) resulting in death would entitle a jury to return a verdict of culpable homicide. It was suggested that there was a perception in the profession that the decision and reasoning of the court in Lord Advocate's Reference (No.1 of 1994) carried the implication that a verdict of culpable homicide could be returned on that basis. This was said to be supported by paragraph 2 of the learned editor's remarks in Lord Advocate's Reference (No.1 of 1994) 1995 SCCR 177 at pages 186-7. As in the present cases a question may arise during the trials as to whether that perception is well-founded (and if so whether Lord Advocate's Reference (No.1 of 1994) was on this point correctly decided), it is appropriate that we express our view on that issue.

[24] In Lord Advocate's Reference (No.1 of 1994) the accused had been charged that at certain locations "you did unlawfully supply a controlled and potentially lethal drug, namely amphetamine ... to [five persons] in a lethal quantity and [these five persons] ingested said amphetamine to the danger of their health, safety and lives and [one of them] died as a consequence of ingesting said amphetamine and you did kill her". No plea was taken to the relevancy of that indictment. The case went to trial. At the close of the Crown case a submission was made that the accused had no case to answer on the culpable homicide charge. The trial judge, sustaining that submission, acquitted the accused. The Lord Advocate thereafter petitioned the High Court of Justiciary under section 263A(1) of the Criminal Procedure (Scotland) Act 1995, posing the following question:

[25] As can be seen from the terms of the question posed, the central issue was one of causation. The trial judge had sustained the submission on the basis that the deceased took an active part in looking for amphetamine to take, and measured out and took the dose which she did take entirely voluntarily (1995 S.C.C.R. at pages 179-80). On the latter page the trial judge records that "the Crown do not maintain that the accused acted recklessly or with gross negligence". When, however, the petition came before the High Court, events took a different turn. The Advocate depute relied upon principles laid down in Khaliq v HM Advocate and Ulhaq v HM Advocate (both cases of culpable and reckless conduct) and is recorded as having submitted:

[26] It accordingly appears that the court, for the purposes of determining the question of causation, proceeded on the basis that the conduct on the part of the former accused of which the Crown had libelled and of which it had led evidence was "the equivalent of culpable and reckless conduct", that is, the "equivalent" of conduct of the kind referred to in Khaliq and Ulhaq. In so far as the quoted phrase may carry any implication that conduct which is not in fact culpable and reckless is to be treated, for the purposes of cases involving drug-related deaths as if it were such conduct, we are unable to accept that as an accurate statement of the law. In particular, if - as in the question put to the court - the only evidence is that an accused (unlawfully) supplied a controlled drug to a person who subsequently died by voluntarily ingesting it (page 178G), that without more would not, in our opinion, provide a sufficient evidential basis for a charge of culpable homicide. We give our reasons for that conclusion below. If, on the other hand, the court was placing reliance, as it appears to have done, on the terms of the averments in the libel (see page 185C) that the supply was not only unlawful but also was of a "potentially lethal drug ... supplied in a lethal quantity", that might, depending on the particular circumstances, including any relevant knowledge on the part of the accused of the likely effects of ingestion, be a sufficient basis for a charge of culpable homicide.

[27] Macdonald, The Criminal Law of Scotland (5^th ed.) at page 96 identifies three kinds of culpable homicide. The first (what is now commonly described as voluntary culpable homicide) does not for present purposes arise. He continues:

[28] Gordon, Criminal Law (3^rd ed.), after discussing homicide in the course of an assault, goes on (at paras.26.24-.27) to discuss homicide in the course of other unlawful employment (or unlawful act). At para.26.26 the authors discuss acts (other than that of assault) which involve unlawful personal injury, or at least the intentional infliction of such an injury. Where death ensues, a charge of culpable homicide may in such circumstances be made out. The authors then (at para.26.27) go on to discuss "other crimes". Apart from Lord Advocate's Reference (No.1 of 1994), three cases are there mentioned. HM Advocate v Finnegan (High Court of Justiciary, March 1958, unreported) can, on the facts mentioned, be regarded as a case of death caused recklessly. In Lourie v HM Advocate 1988 S.C.C.R. 634 the appeal court, in light of a Crown concession, expressly did not enter upon a discussion of the requirements of culpable homicide; the case gives little support to the proposition that unlawful but non-reckless conduct which is not directed in some way against the victim suffices for culpable homicide. But it is unnecessary for the purposes of this case to reach any concluded opinion on that matter. The remaining case mentioned is Sutherland v HM Advocate. There Lord Sutherland explained to the jury that, for "unlawful act" culpable homicide, the act would require to be an offence against the person. Because that was not made out on the evidence, he directed them to disregard the first ground on which the Crown sought a verdict of culpable homicide. He directed them that the only basis on which they could return such a verdict in that case was, in effect, recklessness resulting in death. At the appeal stage there was no discussion of the ground which Lord Sutherland had directed was not open to the Crown.

[29] With the possible exception of Lord Advocate's Reference (No.1 of 1994), where the view of the court is open to interpretation, there appears to be no support for the view that unlawful act culpable homicide can be made out except where, as in assault or analogous cases, the conduct is directed in some way against the victim. In particular, there seems no basis for such a charge founded simply on a statutory contravention resulting in death. If, of course, the contravention is reckless, such a charge will be well-founded (see, for example, Finlayson v HM Advocate).

[30] The Advocate depute argued, ultimately somewhat faintly, that the supply of a controlled drug to another in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 could be regarded as an offence against that other. But we are not persuaded that that is so. Although the offences created by that Act have no doubt as part of their purpose the avoidance of damage to health or of death by the ingestion of controlled drugs, the act of supplying itself cannot, in our view, be regarded as an offence against the persons supplied - in the sense of offences against the person discussed in the context of culpable homicide. It may be noted that the Advocate depute accepted that if death did not result but only injury (however serious) no relevant charge could be brought save of culpable and reckless conduct (as in charge 2 in relation to the second appellant). This, in our view, immediately exposes the weakness of his position on this matter. In these circumstances we are satisfied that a charge libelling culpable homicide in the context of the supplying (or the administration of) a controlled drug is relevant only if the Crown offers to prove that the supplying (or the administration) of the drug was in the circumstances reckless. The indictments here as now amended expressly include the adverb "recklessly". Whatever the prior procedure in Finlayson v HM Advocate, when the case was, on another point, considered on appeal, the charge was taken to be "one of culpable homicide by injecting a controlled drug recklessly into the person of the victim" (1979 J.C. at pages 34-5) (emphasis added).

[31] There was some discussion before us as to whether it was necessary for the Crown expressly to aver that the conduct was reckless. Reference was made to paragraph 3 of Schedule 3 to the Criminal Procedure (Scotland) Act 1995 which provides:

Discussion - Causation

[32] These cases were remitted to a bench of five judges primarily on the issue of causation, with particular reference to the significance to that issue of the concept in the criminal law of "autonomous beings". In the context of drug-related deaths the most recent ruling in England and Wales is the decision of the House of Lords (reversing the Court of Appeal) in R v Kennedy (No.2). There the appellant prepared a syringe of heroin and handed it to another who immediately injected himself and returned the syringe to the appellant. That other died shortly thereafter as a result of the injection. The appellant was charged with supplying a Class A drug and with manslaughter. He was convicted after trial of both offences. Lord Bingham of Cornhill delivered the considered opinion of the Committee. At paragraph 6 he distinguished between "unlawful act manslaughter" and manslaughter founded on the "gross negligence" of the defendant. He made it clear that nothing in the opinion being delivered should be understood as applying to manslaughter caused by gross negligence. It was a matter of agreement that the charge of unlawful act manslaughter could not be founded on the act of supplying the heroin alone (para.7). Much of the discussion turned upon consideration of section 23 of the Offences against the Person Act 1861 (maliciously administering poison etc., so as to endanger life or inflict grievous bodily harm) - a provision which does not apply in Scotland. However, at para.14 Lord Bingham made the following general observations:

This statement was cited by the House with approval in R v Latif [1996] 1 WLR 104, 115. The principle is fundamental and not controversial."

Although Lord Rodger of Earlsferry was a member of the Committee, no reference was made to any Scottish authority; nor, so far as appears from the report, was any cited in argument to their Lordships.

[33] In the context of crimes which are founded on reckless conduct the Scottish courts have adopted a different approach. In Khaliq v HM Advocate the High Court of Justiciary was concerned with the relevancy and specification of a charge of culpable and reckless conduct involving the supply by shopkeepers to children under sixteen of glue-related solvents together with containers "for the purpose of inhalation of the vapours of said solvents from within said containers, well knowing that said children intended to use said solvents and said containers for the said purpose and that the inhalation by said children of the vapours of said solvents was or could be injurious to the health of said children and to the danger of their lives and in consequence of your said actions you did cause or procure the inhalation by said children of vapours from said quantities of solvents to the danger of their health and lives ...". The appellants argued that that charge did not disclose any crime known to the law of Scotland. In dealing with that argument Lord Justice General Emslie at pages 32-4 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 (1842) 1 Broun 415; HM Advocate v Jean Crawford (1847) Arkley 394. 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, page 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 (1868) 1 Couper 28 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 1947 J.C. 1 (murder); Smart v HM Advocate 1975 JC 30 (assault); and Finlayson v HM Advocate 1979 J.C. 33 (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 alleged conduct of the accused been of full age. It is nothing to the point either that the victims might, without committing any criminal offences, 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.

As [counsel for the appellant] has repeatedly reminded us, however, this is not an administration case. What is libelled is culpable, wilful and reckless supply, and the injuries with which the charge is concerned were self-inflicted by the voluntary acts of the persons supplied, after the solvents and the containers had passed out of the immediate control of the appellants. I am not persuaded that these considerations are fatal to the relevancy of charge (1) in this case. 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 employ them for the known, intended, and expected purpose, namely inhalation of the injurious vapours of the solvents from the containers. That the persons supplied were children is not, as I have already indicated, essential to the relevancy of the charge, but the age of such persons in a charge of this kind will be a circumstance which may be taken into account in deciding whether the supply complained of ought upon the evidence to be held to have been a cause of the injury suffered. Turning to the more important obstacles to relevancy founded upon on the appellants' 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 1937 J.C. 41 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 the 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. 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 a supply case the extent to which the supplier may have a locus poenitentiae, and the extent to which extraneous and intervening circumstances dictate or influence the actions of the recipient of the supply, are, of course, not unimportant considerations. The doctrine of the novus actus interveniens familiar in the field of delict or the law of contract, if it is to be relevant and exculpatory, must involve that the intervening actus is truly novus and [ultroneous] (see, for example the speech of Lord Wright in The Oropesa [1943] p.32 quoted Finlayson v HM Advocate cit. sup.). Where, as in the case of charge (1), there is no intervention of third party action, or of an unexpected event entirely external to the transaction between the parties directly concerned, there appears to be no ground upon which it can be successfully maintained, upon the basis of novus actus interveniens, that the inhalation of the noxious fumes of the solvents by the voluntary and deliberate acts of the recipients of the supply, is fatal to the relevancy of such a charge as is exemplified by charge (1) in this indictment. According to the facts and circumstances libelled in this charge, which is of a course of conduct over a long period, the actions of the recipients which it was known that they intended to carry out, were entirely to be expected, and were, indeed, the known specific purpose of the supply. The true question is whether the charge relevantly libels a causal connection between the alleged supply and the abuse and its consequences, that is to say, whether it would be permissible for the judges of fact to conclude that the supplier provided not merely the occasion for the abuse of the solvents by the recipients, but was a cause of that abuse. To that question, for the reasons which I have endeavoured to explain, I give an affirmative answer."

Lords Cameron and Dunpark agreed.

[34] In Ulhaq v HM Advocate (another case of culpable and reckless conduct) the purchasers of the noxious solvents and their containers were adults. No objection was taken to the relevancy or specification of the charge but at the conclusion of the Crown case the submission was made that there was no case to answer having regard to the ages of the persons to whom the substances were supplied, the absence of evidence of instigation by any words or deeds of the appellant and the absence of sale or provision of solvent-abuse kits or similar appurtenances. The sheriff rejected that submission and the appellant was subsequently convicted. The principal issue in his appeal was whether the sheriff had been wrong to reject it. Having summarised the evidence that would have entitled the jury to conclude that the appellant knew that the purchasers intended to use the items for the purpose of inhalation and that he was aware that this would be injurious to their health, the court (presided over by Lord Justice General Hope, as he then was) said, under reference to Khaliq, that the argument that it made all the difference in Ulhaq that the purchasers were adults and not children must be rejected. The court at page 615 continued:

[35] In Lord Advocate's Reference (No.1 of 1994) the court recognised that Khaliq and Ulhaq were not cases of culpable homicide but that there were similarities "between charges of culpable and reckless conduct on the one hand and cases of culpable homicide based on culpable and reckless conduct" (1996 J.C., page 79E-F). It held that the trial judge was in error in holding that Khaliq (and Ulhaq) could be distinguished and in acquitting the accused.

[36] None of these decisions is binding on this court as presently constituted. Nor, of course, are the observations by the House of Lords in R v Kennedy (No.2). But they are all entitled to respect.

[37] In a civil case (McTear v Imperial Tobacco Limited), in which an ultimate consumer alleged that the manufacturer and distributor of cigarettes had been negligent, Lord Nimmo Smith at paras.[7.178] - [7.179] said:

[38] In the context of deaths which followed criminal conduct directed against the victim Gordon, Criminal Law (3^rd ed.) at para.4.54 notices two Scottish cases at first instance: HM Advocate v John Robertson (1854) 1 Irv. 469 and HM Advocate v Patrick Slaven and Others (1885) 5 Couper 694. In the former case it was averred that the female victim had been assaulted by the accused and that, having been terrified by the violence used towards her, she had committed suicide by drowning herself. It was not averred that the accused had killed her. Lord Handyside (one of the two trial judges) observed that the suicide was not on the averments connected with the assault as an immediate consequence. He added at page 470:

[39] Much more recently Lodge Hodge, sitting as a trial judge, had to charge a jury in circumstances where there was evidence that the two accused had assaulted the victim in his third floor flat, that they had then left, locking the door and taking the key, and that the victim, apparently in an attempt to reach the street, had climbed out of the window, fallen and been killed (McDonald v HM Advocate 2007 SCCR 10). The accused were charged with culpable homicide; an objection (presumably to the relevancy of the charge) had earlier been repelled (page 11B-C). In directing the jury Lord Hodge said to them:

"[T]o find an accused guilty of culpable homicide you must be satisfied that there is a direct causal link between the unlawful act, in this case the alleged assault, and the victim's death ... What is the casual link? To find a causal link you must be satisfied that but for the unlawful act, in this case the alleged assault, the victim would not have died. The unlawful act need not be the only cause of death but it must be one of the causes. In other words, in this case if you were not satisfied that the assault contributed significantly to the deceased's decision to climb out the window, then there would be no causal link and the accused, if guilty of a serious assault, would not be guilty of culpable homicide, but if you are so satisfied you would then need to go on to consider whether the causal link was direct or indirect. Some acts may pass the 'but for' test but be considered too remote in time or other circumstances to be direct causes ..."

He then gave the jury a number of illustrations of what would, or would not, amount to a direct causal link. He continued:

"But not every voluntary act by a victim breaks the chain of causation in law. In law the person who attacks another person takes his victim as he finds him. In other words, if the victim is old or infirm or has a weak heart and dies as a result of an assault which would not seriously injure a person in robust health, the victim's weakness is no defence to the charge of culpable homicide. Similarly, if the victim is mentally ill or is under the influence of alcohol or drugs when assaulted or disoriented by the assault and does something directly in response to the assault which a more rational person would not do, the fact that his act was voluntary in the sense that it was done intentionally would not necessarily break the chain of causation. A respected historic textbook on Scottish criminal law (Macdonald at page 100) suggests that it may be culpable homicide where a person in consequence of a flight created by violence does some act which caused his death, thus if a person pursued by an armed attacker throws himself into water in an attempt to escape and drowns, the armed attacker may be guilty of culpable homicide. In that case the victim's behaviour was an immediate response to the threat of violence. There is also case law which suggests that if a person commits suicide as an immediate response to violence against him or her, that may still be culpable homicide, but, of course, one must look to the circumstances of each case as revealed in the evidence."

[40] One of the accused absconded during the course of the trial. The other was convicted of culpable homicide and appealed against that conviction. In refusing that appeal the Appeal Court observed at para.[11]:

[41] The issue on appeal was whether there was sufficient evidence to allow the jury to conclude that the necessary causal link had been established. The court held that there had been such a sufficiency and refused the appeal. Relevant factors were the short interval of time (not more than thirty minutes) between the conclusion of the attack upon the victim and his fall from the window and the evidence which yielded the inference that the victim had been trying to escape (para.[18]). There is nothing in the Appeal Court's reasoning to suggest that it was other than approving of Lord Hodge's directions on causation. The learned editor suggests (page 19) that what was important was whether the deceased jumped out of the window in order to escape from the assault.

[42] These Scottish authorities tend to suggest that the actions (including in some cases deliberate actions) of victims, among them victims of full age and without mental disability, do not necessarily break the chain of causation between the actings of the accused and the victim's death. What appears to be required is a judgment (essentially one of fact) as to whether, in the whole circumstances, including the inter-personal relations of the victim and the accused and the latter's conduct, that conduct can be said to be an immediate and direct cause of the death.

[43] In R v Kennedy (No.2) their Lordships referred to classic academic statements on the matter of the autonomy of human actions, including passages from "Finis for Novus Actus" by Professor Granville Williams and Hart and Honoré - Causation and the Law (2^nd ed.). In Causation, Homicide and the Supply of Drugs (2006) 26 Leg. Studies 139, Professor Timothy H Jones offers a critique of Hart and Honoré's analysis of the law of causation and considers Scots as well as English judicial authorities. In this article, issued after R v Kennedy (No.2) had been heard in the Court of Appeal but before the hearing in the House of Lords, Professor Jones acknowledges that, in England and Wales, the principle of voluntary intervention still represents a substantial conceptual barrier to holding the drug dealer criminally responsible for the death of the drug user (page 152), but suggests that the Scottish approach "may not be quite so pragmatic and devoid of principle as some might think" (page 153). Professor Jones does not stand alone in offering a critique of Hart and Honoré - see J Feinberg, Doing and Deserving, Chapter 7 (Princeton University Press, 1970).

[44] In R v Kennedy (No.2) the drug user had "freely and voluntarily self-administered" the controlled drug from which he died. In answering the question posed by the Court of Appeal, Lord Bingham posited such an individual being a "fully informed and responsible adult" (emphasis added). Difficult questions (some of them matters of degree) may arise in deciding whether the drug user who died was fully informed in the relevant sense. The answers to such questions may in turn impinge upon the issue of causation. As Professor Jones points out (op. cit. at page 142) there must be some doubt as to whether the fifteen year old prostitute victim in R v Khan [1998] Crim. L.R. 830, coming to heroin probably for the first time, should have been regarded as truly capable of consenting to the risks inherent in heroin use; her assumption of risk, as he says, "seems at the borderline of voluntariness". There may be many other cases, short perhaps of duress or necessity and also of deception or mistake, where the vulnerability of the drug user to the actings of the drug supplier will be relevant to whether the direct causal link is made out.

[45] Moreover, while causation is distinct from the mens rea of the accused, the foundation in Scots law of the charge of culpable homicide in cases of this kind (namely, recklessness) is not, in our view, wholly irrelevant. The law can with justification more readily treat the reckless, as against the merely unlawful, actor as responsible for the consequences of his actions, including consequences in the form of actings by those to whom he directs such recklessness. Reckless conduct, judged in the context of any vulnerability of the victim, may of its nature have a compelling force. While, as has been observed in the context of civil actions (McKew v Holland & Hannen & Cubitts (Scotland) Limited, per Lord Reid at page 25), unreasonable conduct will break the chain of causation, human conduct or reaction which is the very object of the accused's actions may not. Subject always to questions of immediacy and directness, the law may properly attribute responsibility for ingestion, and so for death, to the reckless offender.

[46] Different jurisdictions have adopted different solutions to this difficult problem. In Ontario, Canada, it has been held (The Queen v MJM (2003) Can. L (l 2211 (on S.C.)) following the English decisions in R v Dias [2002] 2 Crim. App. R. 5 (page 96) and R v Dalby [1982] 1 W.L.R. 425) that the voluntary consumption of methadone by the deceased severed the chain of causation between the unlawful act (of supply) and the death of the deceased. By contrast, in several States of the United States of America, usually in the context of a criminal code, it has been held that the voluntary ingestion of a controlled drug did not break the causal chain on a charge of homicide (see, for example Shirah v State 555 (Alabama); State v Wassil 658 Atlantic Reporter 2d Series 548 (Connecticut); Coyle v Commonwealth of Virginia; and The People of the State of New York v Cruciani (1975) 36 NY 2d 304). In Lofthouse v Commonwealth of Kentucky (2000) 13 S.W. 3d 236 it was held that guilt of homicide had not, on the evidence, been proved but that in every case guilt depended on the particular circumstances. South Africa appears also to have rejected the proposition that the voluntary act of an adult, by reason of the breaking of the chain of causation, absolves in all cases from criminal liability (see R v Matthews; R v Nbakawa; Ex parte The Minister of Justice: in re S v Grotjohn; S v Hibbert).

[47] In Scotland Lord Justice Clerk Thomson, in the context of civil proceedings, had the following to say about causation (Blaikie v British Transport Commission 1961 S.C. 44 at page 49):

[48] We see no reason why the criminal law in Scotland should not, consistently with earlier authority in this jurisdiction, adopt a similar practical, but nonetheless principled, approach. The adult status and the deliberate conduct of a person to whom a controlled drug is recklessly supplied by another will be important, in some cases crucial, factors in determining whether that other's act was or was not, for the purposes of criminal responsibility, a cause of any death which follows upon ingestion of the drug. But a deliberate decision by the victim of the reckless conduct to ingest the drug will not necessarily break the chain of causation.

The circumstances of the present cases

[49] As earlier narrated, certain facts bearing on the present cases have been agreed. It is convenient to deal first with those relevant to the second appellant's case.

[50] As the allegation is one of administration by injection it is difficult to see what issues could, in the agreed circumstances of this case, properly be said to remain as a matter of relevancy on the question of causation. There remain, however, considerations on the question of alleged recklessness. The second appellant was an acquaintance both of the deceased and of her partner. The length and nature of that acquaintance, including any influence exerted by the appellant on his acquaintances, are as yet unexplored in evidence. Also unexplored is the knowledge of the deceased and her partner of the nature and extent of the hazard they were undergoing by subjecting themselves, apparently for the first time, to injection of heroin. This appellant's relevant state of knowledge of the potentially fatal consequences of his acts of injection remains to be examined. All these matters touch upon this appellant's state of mind at the relevant time.

[51] The act of the first appellant in supplying the controlled drug which contributed to the death of the deceased might, on one view, be considered to be more remote from that death than the second appellant's administration by injection. But the Crown offers to prove that that supply was for the very purpose of (more or less immediate) ingestion by the recipient. Depending on the facts and circumstances proved (which will include factors bearing on influence and on knowledge), a causal link may be established. It cannot be said at this stage, even taking account of the agreed facts in so far as they go, that a jury, properly directed, could not find the causal link proved.

[52] In the whole circumstances these appeals are each refused.