Kennedy v R.

A person who prepares and supplies a syringe of heroin for immediate self-injection may be guilty of unlawful act manslaughter where the evidence permits the jury to find that he and the deceased were jointly engaged in administering the drug. The deceased’s act does not then break causation, because the parties acted in concert in a combined operation.

Mere encouragement or assistance of self-injection is insufficient where it treats the defendant as an accessory to a crime by the deceased. Self-administration is not itself manslaughter. However, conduct amounting to administering, or causing the administration of, a noxious substance contrary to section 23 of the Offences Against the Person Act 1861 supplies an independent unlawful act capable of founding manslaughter.

The appellant prepared a syringe containing heroin and handed it to Marco Bosque for immediate injection. Bosque injected himself and died. The appellant was convicted at the Central Criminal Court of manslaughter and supplying a Class A controlled drug.

An earlier appeal against the manslaughter conviction had been dismissed: R v Kennedy [1999] Crim LR 65. The Criminal Cases Review Commission referred the case under section 9(1) of the Criminal Appeal Act 1995, following later Court of Appeal decisions concerning drug supply, self-injection and causation.

The central issue was whether the deceased’s voluntary injection broke the chain of causation, or whether the appellant’s preparation and handing over of the syringe made the two men joint participants in administering the drug.

1. Appeal dismissed. The conviction for manslaughter was safe. It was open to the jury to find that the appellant and the deceased were jointly engaged in administering the heroin when the appellant prepared the syringe and handed it over for immediate injection.
2. The court distinguished a case of mere supply. Where the defendant’s and deceased’s acts form interlinked and necessary parts of one combined operation of administering the drug, they are acting in concert. The deceased’s self-injection does not then break the chain of causation. Whether the necessary linkage exists is a question for the jury.
3. A person who kills himself commits no crime. Accordingly, a defendant cannot be guilty of manslaughter merely as an accessory who encouraged or assisted the deceased’s self-injection. That reasoning, used on the first appeal, was erroneous if it treated self-injection as an unlawful act. It did not, however, undermine the conviction because the appellant’s conduct could amount to an independent offence under section 23 of the Offences Against the Person Act 1861.
4. Section 23 criminalises administering, or causing a noxious substance to be administered or taken. If the defendant was acting jointly with the deceased in administering heroin, the unlawful act under that section was causative of the death and could found manslaughter, subject to the ordinary requirements of that offence. The court regarded the more elaborate causation analysis drawn from Environment Agency v Empress Car Company Limited [1999] 2 AC 22 as unnecessary in this statutory setting.
5. The trial judge could have expressed the issue of acting in concert more clearly, and defence counsel had not been permitted to address causation. Nevertheless, on the facts found by the jury, the appellant’s conduct was part of the administration itself. The separate complaint concerning adverse inferences under section 34 of the Criminal Justice and Public Order Act 1994 had no merit.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995, the court dismissed the renewed appeal and held the manslaughter conviction safe: [2005] EWCA Crim 685.
• Court of Appeal (Criminal Division): On 31 July 1998, the court dismissed the appellant’s earlier appeal against his manslaughter conviction: [1999] Crim LR 65.
• Central Criminal Court: On 26 November 1997, the appellant was convicted of manslaughter and supplying a Class A controlled drug. He received five years’ imprisonment for manslaughter and a concurrent three-year sentence for supply.