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Essay: Drug administration and causation

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  • Published: 15 October 2019*
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Within the United Kingdom Criminal Justice system there are two types of causation: factual causation, which requires it to be shown that ‘but for’ the defendant’s act the event would not have occurred, and legal causation, which states an act must be the substantial cause of a consequence. Kennedy (No.2) [2007] called into question the basis upon which causation is decided and thus the judgement that the autonomous action of Bosque broke the chain of causation is a problematic decision which will be addressed.

Historically, fatal drug administration cases have been sentenced in favour of the deceased party often resulting in an unlawful manslaughter charge for the defendant. This is clearly demonstrated in both R v Cato [1976] and R v Finlay [2003], in both of which it was concluded that self-injection did not break the chain of causation; with both defendants charged under Section 23 of the Offences Against the Person Act 1861. It is significant to note that there has been controversy surrounding causation in drug administration cases for some time as demonstrated by the view of D.Ormerod when commenting on R v Carey [2006]: ‘unlawful act manslaughter is renowned for criminalising consequences which were never intended or even foreseen by the defendant.’ One is able to observe these characteristics of drug administration cases in R v Cato. This case was heard in 1976 and thus took the traditional approach when identifying causation. It was concluded that Farmer’s death had been caused by the appellant and his appeal was dismissed as it was stated that ‘Farmer’s consent to the injection acted as no defence’, as the ‘but for’ test could easily be applied to this situation. Thus, it could be assumed that this case and other’s alike would set a precedent for Kennedy.

With regards to factual causation in R v Kennedy [1999], one would apply the ‘but for’ test which would indicate that ‘but for’ Kennedy’s supply of heroin, Bosque would not have died. Consequently, Kennedy was convicted of manslaughter under S23 OAPA 1861, following the decisions of prior cases. This is supported by the identification of legal causation due to the authority of R v Smith [1959] which states that the heroin, supplied by Kennedy, acted as an ‘operating cause’.  However, the decision of the House of Lords re-evaluated causation in drug administration cases, setting new authority under which cases can be decided. The House of Lords overturned the decision of the previous Court, meaning Kennedy was found not guilty of manslaughter. The reasoning behind their decision was ‘a defendant cannot cause the victim to act in a certain way if the victim made a voluntary and informed decision’. Hence, in this case despite the Court recognising the ‘but for’ test in establishing causation, it was decided that as Bosque was an autonomous individual who made a free and voluntary decision to inject himself with the heroin, this would act as a novus actus interveniens, leaving Bosque responsible for his own death and not Kennedy. This idea is reiterated by Cherkassy in her 2008 article which recognises that Bosque’s actions make it unfair to label Kennedy as the ‘operating cause of death’. One could argue that Bosque was not an ‘autonomous’ individual as his need for heroin may have been due to addiction meaning he was dependant on the drug, thus suggesting he did not have the control over his own body to make a ‘voluntary’ decision. However, the House of Lord’s appear to have disregarded this argument as ultimately Bosque did nothing to prevent this addiction from developing. Therefore, the decision in the House of Lord’s was key in demonstrating the complexity of finding causation and can be viewed as impacting one of the key laws relating to causation in the UK Legal system.

The decision of the House of Lords is not without controversy due to the fact there is little clarity on how the judgement was intended to impact causation. This issue is highlighted when comparing R v Kennedy [2007] to the infamous case Environmental Agency v Empress Cars Co [1999]. As argued by Cherkassy, in the latter case an unforeseen and independent act did not break the chain of causation as the issue here was who caused the pollution in the river which was decided to be the source of the pollution (Empress Cars Co).  Yet, when applying this authority to Kennedy (No.2) [2007] this would indicate that Bosque’s actions did not cause a break in the chain of causation owing to the fact it was Kennedy who provided the noxious substance which caused the death; he can be seen as the source of pollution. Hence, it is questionable if the authority regarding breaking the chain of causation in Kennedy (No.2) [2007] is limited to drug administration cases or if the law regarding causation extends to impact cases such as Empress Cars Co [1999]. One cannot overlook the differing approaches to breaking the chain of causation taken by the Judge’s in the two cases, perhaps suggesting the new authority on causation found in Kennedy (No.2) [2007] is only intended to impact drug administration cases and not be viewed as case law for the wider issues of causation in other circumstances; emphasised by Lord Bingham’s distinction between the two cases when arguing that ‘the strict liability offence in Empress Cars Co means the two cases are wholly different from one another’.  It is clear that Kennedy [2007] has had a substantial impact on the issue of causation in drug administration cases due to the fact the case of R v Finlay [2009] saw the Court of Appeal overrule their initial judgement and quash the manslaughter charge owing to the precedent set in Kennedy [2007]. This is likely due to the House of Lord’s belief that the judgement in Finlay [2003] conflicted with rules on personal autonomy which were key to their decision in Kennedy.  Therefore, the impact of the House of Lord’s judgement in Kennedy [2007] on causation laws is highly ambiguous, yet evidence suggests that any impact is intended to be limited to drug administration cases instead of being viewed as something which is applicable in all circumstances.

In conclusion, the decision of the House of Lords in Kennedy (No.2) [2007] serves to emphasise the lack of clarity regarding causation and attempts to remedy this by setting a new precedent to be followed in drug administration cases. Finding Kennedy not guilty of manslaughter raises issues over if the decision is applicable only to drug administration cases or if this can have a broader application on the laws regarding causation.

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