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Policy and Principle in Drugs Manslaughter Cases
Published online by Cambridge University Press: 08 April 2005
Extract
Over the past 30 years, in a series of cases where one person has been in some way involved in the death of another from a drugs overdose, the courts have struggled to explain the basis on which the first person should be guilty of manslaughter. Two connected issues have arisen: where, as is normally the case, D has been charged with unlawful act, or constructive, manslaughter, an unlawful act on D’s part has had to be identified; and a chain of causation between D’s act and the death has had to be established.
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References
1 See in particular R. Heaton, “Dealing in Death” [2003] Crim. L.R. 497 and “Principals? No Principles!” [2004] Crim. L.R. 463.
2 (1976) 62 Cr. App. R. 41.
3 For example, by Sir John Smith in Smith and Hogan, Criminal Law. 10th ed. (London 2002), p. 381.
4 [1999] Crim. L.R. 65.
5 [2001] EWCA Crim. 2986, at [11] and [21].
6 [2003] EWCA Crim. 945.
7 Para. [7].
8 Para. [8].
9 [2003] EWCA Crim. 3868.
10 Paras. [14] and [19].
11 [1999] Crim. L.R. 65, 67.
12 (1983) 76 Cr. App. R. 279.
13 (1971) 56 Cr. App. R. 95.
14 Ibid., at p. 102.
15 [1996] Crim. L.R. 594.
16 (1975) 61 Cr. App. R. 271.
17 Instead the court applied the policy that ‘those who use violence on other people must take their victims as they find them’. (Ibid., at p. 274). Although the court held that this meant “the whole man, not just the physical man”, in cases other than Blaue the test is more usually, and perhaps more aptly applied in the context of physical vulnerability. Its application to ‘religious vulnerability’ might therefore be seen simply as an unsatisfactory evasion of the ‘reasonableness’ issue. The best answer to the Blaue problem seems to be that suggested by Simester and Sullivan (A.P. Simester and G.R. Sullivan, Criminal Law, Theory and Doctrine, 2nd ed. (Oxford, 2003) pp. 105-6), namely that the victim’s omission does not break the chain of causation, in keeping with the general rule that omissions are legally insignificant.
18 Pitts (1842) Car. & M. 284 (174 ER 509); Halliday (1886-90) All E.R. 1028; Beech (1912) 7 Cr. App. R. 197; Lewis [1970] Crim. L.R. 647; Mackie [1973] Crim. L.R. 54; Daley [1980] AC 237; Williams [1992] 2 All E.R. 183. See also D. W. Elliott, “Frightening a Person into Injuring Himself” [1974] Crim. L.R. 15.
19 (1881) 8 Q.B.D. 54.
20 124 Cal. 551, 57 P. 470 (1898).
21 [1996] Crim. L.R. 595.
22 See note 17 above, where it was suggested that this is the best interpretation of the decision in Blaue (1975) 61 Cr. App. R. 271, where the victim did not break the chain by rejecting a blood transfusion. It should also be noted that the Law Commission Draft Criminal Code, Clause 17(2) refers only to “an act or event” as having the potential to break the chain of causation. No reference is made to omissions having this potential. This is in keeping with the general English law rule that omissions are without criminal significance, but of course there are exceptions to that rule where there exists a prior duty to act and thus there may be similar exceptions to it in its application to intervening acts. In that case the argument here would depend on the specific point that no such duty is placed on the victim to ‘mitigate’ his or her loss.
23 Simester and Sullivan, Criminal Law, p. 106.
24 J. C. Smith, Commentary on Dear, [1996] Crim. L.R. 595, 596. A similar result can be seen in the distinction between Smith [1959] 2 Q.B. 35 and Jordan (1975) 61 Cr. App. R. 271. Both victims received palpably bad medical treatment after being wounded by D, but in Smith the original wound remained an operating and substantial cause of death, whereas in Jordan it had substantially healed and so it was not.
25 J. C. Smith, ibid.
26 (1982) 74 Cr. App. R. 348.
27 [1983] Q.B. 741.
28 (1982) 74 Cr. App. R. 348, 351.
29 Para. [25].
30 Para. [26].
31 Para. [25].
32 There are other possibilities. An obvious one is where D owes V a duty to protect him from drugs (e.g. if V is a patient in a rehab clinic and D is a nurse); this would be the analogue of Reeves v. Commissioner of Police for the Metropolis [2000] 1 A.C. 360, where suicide did not break the chain of causation for the purposes of tort law. However, this example would be better dealt with under the alternative charge of gross negligence manslaughter, discussed below.
33 [1999] 2 A.C. 22.
34 See, e.g. Sir John Smith in Smith and Hogan, Criminal Law, pp. 46-47 and A. Ashworth, Principles of Criminal Law, 4th ed. (Oxford 2003) p. 129. Simester and Sullivan write that it contains “bad principle, bad law and bad reasoning” (Criminal Law, pp. 99-101). Similarly, Heaton refers to its use in Finlay as “heresy” (R. Heaton “Principals? No Principles!” [2004] Crim. L.R. 463, 466).
35 [1948] 2 K.B. 48.
36 [2002] UKHL 22.
37 [2004] UKHL 41.
38 [1999] 2 A.C. 22, 31.
39 Ibid., at p. 32.
40 Sir John Smith, in Smith and Hogan, Criminal Law, p 46.
41 [1999] 2 A.C. 22, 32, per Lord Hoffmann.
42 Letter of 16 March 2004 from Detective Chief Superintendent Ian Scott, member of the ACPO working group on homicide, to all heads of CID in England and Wales.
43 (1998) 148 N.L.J. 1353.
44 (1976) 62 Cr. App. R. 41.
45 R v. Dica (Mohammed) [2004] EWCA Crim. 1103.
46 [2001] EWCA Crim. 2986, at [26].
47 [1973] Q.B. 702.
48 (1847) 2 Cox. C.C. 273.
49 [1998] Crim. L.R. 830.
50 [1995] 1 A.C. 171.
51 [1998] Crim. L.R. 830, 831.
52 [2002] EWCA Crim.1944.
53 [2003] EWCA Crim.122.
54 (1998) 148 N.L.J. 1353. Indeed Sinclair and Khan [1998] Crim. L.R. 830 were both cited to the Court of Appeal in Wacker [2002] EWCA Crim. 1944, and although they are not referred to in its judgment, they are consistent with it.
55 [1983] 2 A.C. 161.
56 [1985] A.C. 147. Kaitamaki might at first appear to be unrelated to this issue, on the basis that it simply establishes intercourse as a continuing act for the purposes of rape. However, it is well known that Fagan v. MPC [1969] 1 Q.B. 439, in which the “continuing act” doctrine was developed, can be aligned with Miller [1983] 2 A.C. 161 and could have been decided on that basis, had it been possible to commit the offence in question by omission at that time. In both cases D had, without awareness of it, caused a problem (setting fire to the mattress in Miller, driving onto the policeman’s foot in Fagan). In both cases it was D’s failure to rectify this problem that was accompanied by the relevant mens rea. Kaitamaki, it should be noted, does not align properly with Fagan, although it was decided as a continuing act case on that basis. When D penetrates V with V’s consent it is not just the mens rea for rape that is missing, but also half of the actus reus, namely the lack of V’s consent. It is thus submitted that both Fagan and Kaitamaki would have been better, and less artificially, decided by analogy with Miller. In the case of Kaitamaki this requires the extension of “creation of danger” into something like ‘participation in a situation of vulnerability’ but it is submitted that this is not impossible, is required in order fully to align Kaitiamaki with the previous case law, and then provides a means of using joint participation in drug taking as the source of the duty.
57 The uncertainty of this offence was discussed by the Court of Appeal in R v. Misra [2004] EWCA Crim. 2375. The court held that the offence did not breach Article 7 of the European Convention of Human Rights, but adjourned for further written submissions in order to decide whether to certify a point of law of general importance.
58 Heaton argues that Finlay creates “unacceptable uncertainty and the potential for grave inconsistency in stereotypical situations” (R. Heaton, “Principals? No Principles!” [2004] Crim. L.R. 463, 467).