R v. Kennedy (On Appeal from the Court of Appeal (Criminal Division))

A supplier is not guilty of unlawful act manslaughter where a fully informed and responsible adult freely and voluntarily self-administers the supplied drug. The adult’s autonomous decision breaks the causal chain.

Supplying and preparing a syringe does not amount to administering a noxious thing under section 23 of the Offences against the Person Act 1861. Facilitation or contribution is insufficient. The defendant must administer the substance, cause an innocent third party to administer it, or cause the victim to take it without a voluntary and informed decision.

The appellant supplied heroin to an adult, prepared a syringe and handed it to him. The recipient knowingly and voluntarily injected himself and died from the effects of opiates and alcohol. The appellant was convicted of supplying heroin and manslaughter.

His first manslaughter appeal was dismissed. Following a reference by the Criminal Cases Review Commission, the Court of Appeal again dismissed his appeal: [2005] EWCA Crim 685, [2005] 1 WLR 2159. It held that the appellant and deceased could be regarded as jointly administering the heroin in a combined operation.

The issue before the House was when a drug supplier may be guilty of manslaughter where a fully informed and responsible adult freely and voluntarily self-administers the drug and dies.

1. Appeal allowed unanimously. In the considered opinion of Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Mance, the manslaughter conviction was unsafe and was quashed.

2. Unlawful act manslaughter requires a criminal unlawful act which significantly causes the death. Supply contrary to section 4(1) of the Misuse of Drugs Act 1971 was criminal, but supply alone could not physically harm the deceased and therefore could not found the conviction.

3. Section 23 of the Offences against the Person Act 1861 creates distinct offences of administering a noxious thing, causing it to be administered, and causing it to be taken. The last two offences require the defendant to cause the relevant act. A voluntary and informed decision by a responsible adult ordinarily initiates a new causal chain. The supplier therefore neither caused the heroin to be administered nor caused it to be taken.

4. The appellant also did not administer the heroin. Preparing and handing over the syringe facilitated the injection, but the deceased retained and exercised the choice whether to inject himself. The statutory distinction between a substance administered to another and one taken by that person had to be respected.

5. The Court of Appeal’s theory that the appellant and deceased jointly administered the drug as a combined operation was rejected. R v Finlay [2003] EWCA Crim 3868 wrongly transferred the causation reasoning in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 from strict-liability water-pollution legislation to section 23. R v Rogers [2003] EWCA Crim 945 was also wrongly decided insofar as physical assistance with a tourniquet was treated as administration despite the deceased’s voluntary and informed self-injection.

6. The certified question was answered: in the case of a fully informed and responsible adult, a supplier is never guilty of manslaughter on the stated basis. The appellant was awarded his costs here and below from central funds.

1. House of Lords: Allowed the appeal unanimously, quashed the manslaughter conviction and rejected the Court of Appeal’s combined-operation analysis: [2007] UKHL 38.
2. Court of Appeal (Criminal Division), 2005: Dismissed the appeal arising from the Criminal Cases Review Commission’s reference: [2005] EWCA Crim 685, [2005] 1 WLR 2159.
3. Court of Appeal (Criminal Division), 1998: Dismissed the appellant’s first appeal against the manslaughter conviction: [1999] Crim LR 65.
4. Central Criminal Court: Convicted the appellant of manslaughter and supplying heroin contrary to section 4(1) of the Misuse of Drugs Act 1971.