Keen, R. v

An exceptional extension of time to challenge a conviction after a later change in the law is granted only where refusal would cause substantial injustice. A conviction reached after a fair trial under the law then understood will not normally meet that threshold.

A conviction for unlawful act manslaughter cannot rest solely on supplying a fatal drug to a fully informed and responsible adult who freely and voluntarily self-administers it. Liability may nevertheless arise where the survivor and deceased jointly administered the fatal injection. A guilty plea founded on the former, incorrect legal basis should be quashed where it deprived the defendant of a jury’s determination of joint administration.

The applicant pleaded guilty to manslaughter at the Crown Court at Luton after her trial had begun. The agreed basis was that she and the deceased bought and prepared heroin together, but that the deceased loaded his own syringe and injected himself. She was sentenced to three years’ imprisonment, later reduced to two years on a sentence appeal.

She sought a long extension of time and leave to appeal against conviction following R v Kennedy (No 2) [2007] UKHL 38. The central issues were whether a substantial injustice justified the late appeal and whether the agreed facts could sustain manslaughter after that decision.

Appeal allowed. Extension of time and leave to appeal granted; the manslaughter conviction was quashed.

1. A long extension of time following a change in the law is exceptional. The governing question is whether refusing it would cause substantial injustice. A conviction obtained after a fair trial under the law then understood will not ordinarily suffice. Here, however, the chronology meant that the issue could have been preserved pending R v Kennedy (No 2) [2007] UKHL 38, and an alternative supply count remained available to the Crown.

2. The proceedings below had proceeded on the then-understood effect of the Court of Appeal decision in Kennedy [2005] EWCA Crim 685. The House of Lords subsequently established that voluntary self-administration by a fully informed and responsible adult does not make the supplier guilty of manslaughter merely by reason of the supply. It remained possible for a jury to find manslaughter where two people jointly administered the injection.

3. The applicant’s admitted participation stopped at the joint preparation of the heroin. She neither injected the deceased nor assisted at the injection. Her case was therefore at least as clear as Byram [2008] EWCA Crim 516, where a conviction founded on the earlier legal approach had been quashed. It would be inappropriate to uphold a guilty plea entered on a wholly incorrect legal basis and thereby remove the opportunity for a jury to determine any allegation of joint administration.

4. The Crown did not pursue its indicated application to revive the count described at the hearing as supplying a class A drug. No order was made on that application.

• Court of Appeal (Criminal Division): In this judgment, [2008] EWCA Crim 1000, the court granted an extension of time and leave to appeal, allowed the appeal against conviction, and quashed the manslaughter conviction.

• Crown Court at Luton: On 3 January 2007 the applicant pleaded guilty to manslaughter and, on 4 January 2007, received three years’ imprisonment. The sentence was later reduced to two years on an appeal for which no citation is stated in the judgment.