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Criminal Law - Kennedy

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'Critically evaluate the impact of the House of Lords’ decision in Kennedy (No.2) [2007] UKHL 38 on the law relating to causation.’

This essay requires us to take a critical stand vis-à-vis the development of the law in relation to the issue of causation, as developed by the case of Kennedy (No.2). It will argue that the ratio given in Kennedy (No.2) is still good law, but there are certain situations where the supplier can be found guilty of gross negligence manslaughter.
Kennedy falls within the scope of the analysis surrounding the Actus Reus element of a crime. Actus Reus is the first step that needs to be considered before establishing criminal liability. This step requires an action, an inaction (omission) or a state of affairs to occur. This action/ inaction should be voluntarily undertaken and the conduct must be linked directly to the consequences that follow (i.e. Causation).
Liability for inaction (omission) is difficult to establish, usually because it is challenging to prove a direct causal link between the act of omission and the consequences that occurred. This is because the general rule is that ‘you are not your brother’s keeper’ (you shall bare no responsibility for the actions of another). However, there are certain situations where there is a positive duty to act (ex. if the defendant created the dangerous situation or if there is a certain special relationship between the defendant and the claimant).
For causation to be established, a factual and legal analysis needs to be undertaken, followed by a scrutiny of the facts to see if there is a new intervening act, which may break the chain of causation. This new intervening act needs to be sufficiently independent of the defendant’s conduct and it should be sufficiently serious. Pagett sustains the idea that if the defendant’s conduct causes a certain foreseeable action by a third party, then the defendant is likely to be held liable. This idea is sustained in Roberts and Williams and Davis as well, but here the court introduced the term of ‘reasonable foreseeability’. It was a matter for the courts to determine what actions would fall under the term of ‘reasonableness’.
The case of Kennedy focuses mostly on the last part, which is breaking the chain of causation in situation of drug supply and drug use. The law is that any voluntary act of the victim breaks the chain of causation, as far as the supplier is concerned.
The first time this issue was analyzed was in the case of Dalby. Here, the defendant argued that the act of supplying was no directed against the deceased. The court stated that in this situation there should be criminal liability only for the act of supply under the Misuse of Drugs Act 1971 and not for manslaughter. They saw the act of supply as merely an act, which made it possible that harm would occur, but it was insufficient to establish that this was the legal cause of death.
The case of R v Khan also sustained the idea that any voluntary act of the victim breaks the chain of causation in making the supplier liable of murder/ manslaughter.
However, the case of Kennedy (No. 1) took the opportunity and distinguished Dalby on factual grounds. The defendant prepared the syringe of heroin and handed it to the deceased for immediate injection. The conduct of supplying and assistance was seen by the courts as an encouragement for the victim to inject himself. In Dalby it was entirely up to the victim to inject himself without any encouragement. Therefore, in the case of Kennedy (No. 1) the court established that the supplier acted in a close proximity with the victim and hence, he was charged with manslaughter.
But this case was followed by the case of R v Dias, which distinguished between primary and secondary participation to a crime. It stated that there could be no conviction of manslaughter for the supplier on the basis of mere secondary participation (i.e. for the mere supply of drugs, especially if the supplier gave no physical assistance to the victim in administering the drug).
R v Dias was relied upon in the judgment of R v Rogers, but in this case the defendant applied a tourniquet to the victim’s arm. This was seen as being more than a secondary participation of the defendant, making him a principal party in the cause of death. Therefore, here the conviction of manslaughter stood. Therefore, until in this point in time, if you were to physically assist a victim in the administration of the drug, you would be found liable.
The case of R v Finlay applied R v Rogers and distinguished Kennedy (No. 1). It concluded that the self-administration of the victim breaks the chain of causation for the supplier. Here, the defendant prepared the heroin, loaded the syringe and handed it to the deceased. But still, it was argued that the victim decided to administer the drug himself. The courts were of the opinion that when the victim administers their own drug, they take responsibility for what happens. This breaks the chain of causation.
The uncertainty in the law was cleared by the case of Kennedy (No. 2), the successful appeal of the defendant in 2007. Here, the courts took the opportunity and clarified the law on this issue of causation. The court stated that there might be situations where the supplier and the consumer work so closely together that they might be perceived as being/ causing the same outcome of the events. However, a closer look needs to be taken in analyzing whether the victim had actually choice before administering the drug. The court stated that if the victim had a choice whether to inject themselves or not and they still pursue with the administration, this would be enough to break the chain of causation. Their conclusion was that where a dealer supplies the drugs to the victim, but the victim is the one to inject the drugs into his/ her own body and later dies, the drug dealer will never be found guilty of manslaughter because the chain of causation is broken.
However, in 2009 the Court of Appeal found gross negligence manslaughter in the case of R v Evans under similar circumstances. Here the victim was a drug addict and her sister obtained drugs from a dealer. The victim injected herself, had an overdose and died. The court said that the appellant’s duty arose not from her close familial relationship to the victim, nor from her actions though which she assumed care for the victim, but from her supplying the heroin. The appellant was said to be liable because she had created a dangerous situation ‘which she knew, or ought reasonably to have known, had become life threatening’ and failed to take action to prevent the consequences occurring (did not call for medical assistance). She was convicted of gross negligence manslaughter.
Therefore, Kennedy (No.2) still remains good law in a sense that the supplier can never be found guilty of an unlawful act of manslaughter if the victims have made a free, informed decision to inject themselves. But, following Evans, the supplier can be guilty of gross negligence manslaughter is they fail to correct/ prevent a deadly outcome to the situation created by him.

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