Causation is essentially the casual relationship between conduct and result and is an important aspect of the actus reus of an offence. There needs to be an unbroken and direct chain of causation between the defendant’s act and the consequences of that act.
There must be a novus actus interviniens that breaks the chain of causation else there will be no criminal liability for the resulting consequence. There are two types of causation, factual and legal. The causation concerning R v Kennedy is one of Legal Causation, in specific, the Novus Actus Interviniens. The definition being ‘A novus actus interveniens is an intervening act or event that takes over as the new ‘operative’ cause, relegating the defendant’s actions to the realms of the history of the case.’
The importance of a novus actus interviniens has been confirmed in R v Kennedy. Simon Kennedy had prepared a syringe of heroin for Marco Bosque. Bosque injected himself and died shortly after. Kennedy was charged with supplying a class a drug and manslaughter, and convicted on both charges.
Therefore in order to view the impact of R v Kennedy, case law before and after must be analyzed.
Before Kennedy, criminal liability imposed on persons supplying drugs to another, who subsequently died, was a grey area of uncertainty. In R v Dalby , the defendant who supplied lawfully obtained prescription drugs to the deceased was not convicted of manslaughter. Waller LJ held that the defendant’s ‘supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous’ and it was the deceased’s self-injecting which was the direct cause of death, not the defendant’s act of supply. Similarly in R v Dias , the voluntary consumption of the drugs by the deceased amounted to a new intervening act and the chain of causation had therefore been ruptured. It should also be noted that the defendant here had prepared the syringe whereas the defendant in Dalby did not.
Yet, a similar case with an opposing result is one of R v Finlay . The defendant had prepared a syringe and given it to the deceased who injected herself, consequently the defendant was convicted of manslaughter. The reasoning was framed around the case of R v Roberts, Stephenson Lj stated, obiter, that the chain of causation would only be broken where the victim ‘does something so daft’or so unexpected that no reasonable man’ would foresee it. As per Buxton LJ in Finlay, ‘the defendant produced a situation in which the deceased could inject and in which the injection by her into herself was entirely foreseeable’ .
Not only this, the judge relied on the case of Empress car , the defendant had produced a situation in which the victim could inject herself, in which her self injection was entirely foreseeable and in which self injection could be not regarded as something extraordinary. Although the Court of Appeal upheld the judges’ analysis and dismissed the appeal, it was wrong to do so.
It’s decision conflicted with the rules of personal autonomy and informed voluntary choice.
Kennedy has since clarified the situation in fatal drug self-administration cases. The critical question asked by the Court was whether mere supply of a drug was an act causative of the drug taker’s death, given that the drug taker had injected himself. The House of Lords held that ‘the ultimate harm could not be imputed to the defendant as [the deceased’s] autonomous fully informed choice broke the chain of causation’ Thus, where a person supplies a prohibited drug to another who then self-administers that drug and dies, the person who supplied the drug will not be found guilty, provided the deceased is a fully informed adult who freely and voluntarily self-administered the drug. This however ‘is only concerned with unlawful act manslaughter’ and it may be that the drug supplier will be held liable for gross negligence manslaughter.
This has occurred within a more recent case of R v Evans the appellant was convicted of gross negligence manslaughter along with her mother in relation to the death of her 17-year-old sister, Carly Townsend who died of a heroin overdose.
It was held that the judge was wrong to leave the jury to decide the issue of duty of care. The existence, or otherwise, of a duty of care or a duty to act, is a question of law for the judge: the question whether the facts establish the existence of the duty is for the jury. However, the misdirection did not render the conviction unsafe. The appellant’s duty of care arose not out of her familial relationship, nor from her actions in seeking to care for Carly, but from her supplying the heroin. She had in effect created a dangerous situation and failed to take action to reduce the risk by summoning medical assistance, which would have saved her.
However, this contradicts previous case law. Such as in the case of R v Khan where there was a failure to call for aid after an overdose, but in neither case was it held that a drug supplier does owe a duty of care to his customer’
It therefore seems inconsistent with case law that Evans was successfully convicted. The duty of care found in Evans was based on the fact that Evans ‘created or contributed to the creation of a state of affairs which [she knew], or ought reasonably [to have known], [became] life threatening’ and a duty to act by taking reasonable steps to save her sister had thus arisen. This reasoning is somewhat flawed. Firstly, it does not seem fair to hold that Evan’s negligent omission caused her sisters death because there is no sufficient causal link between Evans’ act of supply and her sister’s death. Secondly, it seems harsh to impose a duty of care on Evans merely because she helped her sister to create a dangerous situation for herself. Doing so completely overlooks the fact that the sister made the voluntary and independent choice to self-inject.
Therefore, the case of Kennedy has impacted cases from then on because the House of Lords ruled that adults of sound mind are to be treated as autonomists, the victim acted voluntarily, freely and in an informed manner. Thus a novus actus interviniens has occurred, although as I’ve discussed defendants can be found criminally liable for gross negligence manslaughter.
On a personal note, I believe this the idea of an autonomous person with a sound mind should be held accountable for their actions is correct. But for example, the case of R v Khan , the victim being an age of 15 years old, the fact the convictions were quashed seriously conflicts with my moral compass. But I realize this is purely because of the age of the victim. Therefore, overall I believe R v Kennedy’s impact on causation has been one of beneficial, as it reinforces the principle of autonomy.
However, I can also see why my view would be disapproved. As it could be argued that it is in the public interest to hold those who drug traffic to be held liable. As it would give the families of the victims a sense of justice and it would also deter drug trafficking because of the severity of the sentencing, in this case, liable for homicide.
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