In relation to the case of Kennedy (No.2) the central facts were simply that the appellant had supplied and prepared a class A drug (heroin), in a syringe ready “for immediate injection” but it was then the deceased who voluntarily self-injected himself and died from the fatal dose. The broader issue in question in the duration of the case was whether one could be found guilty of manslaughter if a fully and informed adult voluntarily administers the drug and then dies as a result of this, thus breaking chain of causation ([2008] 1 A.C. 269). The result of this case set precedent to the approach taken by courts in similar cases where the causal element to an offence clear. Earlier cases and the judgments made in them highlight the significant impact the Lords’ decision has had on the law of causation and future cases when directing a jury to consider similar issues. Academics have criticised the earlier decision due to its disregard for the breaking chain for causation once the deceased self-injected the heroin, knowing all possible results. Significant to this debate is to also consider the judgments made in earlier cases and the impact that the Kennedy (No2) case has had on the courts’ approach, particularly in regard to Lord Bingham’s reasoning behind the judgment.
When discussing the doctrine of causation and the principles as set out by the law, it must be defined as to what the law sees as causation. In criminal law, causation refers to the idea that not only did the defendant perform an unlawful act, but that they also caused a particular consequence. (Herring, 2018). The general principles of causation consist of two forms; factual ‘but for’ causation and legal causation. Factual causation and the but for test provide means to find whether someone can be said to have factually caused a particular result in a criminal offence. In terms of the establishing the actus reus element of a crime, a certain consequence is required by which it can be proved the defendant’s conduct led to a particular result and but for his/her action, such a consequence wouldn’t have occurred. In legal causation, the courts are to find one to have been an ‘operating and substantial cause’ to the consequence of a crime for liability. (Horder, 2016)
From these principles, courts have had a quite a narrow interpretation of what constitutes to someone being the legal cause to murder or manslaughter. Prior to Kennedy, the courts generally took a stricter approach in finding someone guilty of an offence through the doctrine of causation. This is demonstrated by the case of R v Cato (2976) where the prosecution held that although the victim had consented to the injection of heroin, this was not a relevant defence to take against the idea that with foreseeable consequences, the appellant had administered the drug to the deceased and it was up to the jury to consider whether the conduct of the appellant was done in recklessness or gross negligence of s23 by both injecting the victim directly and with the foresight that such a consequence could occur. ([1976] 1 W.L.R. 110). In the Kennedy (No.1) case, accessory to a crime and the joint administration of a drug causing death was a consideration taken by the courts during his conviction. Putting into consideration the terms set out in s23, the courts convicted on the basis that both parties had jointly administered the drugs leading to the death and acted in concert with another during this, thus making him liable under the terms set out in s23. Courts in the past have had difficulty on establishing whether the chain of causation is broken when the victim voluntarily and freely administers a noxious thing like heroin, with foreseeable consequences and dies subsequently. In the case of R v Dias, an appeal was allowed because of the wrong judicial direction given by the judge to consider the act of the victim unlawful under s23 and also the Misuse of Drugs Act 1971 ([2002] 2 Cr. App. R 5). Similar cases both before and after Dias are significant in establishing that there was indeed substantial impact after the ruling of Kennedy (No.2) which led to a change in approach by the courts and the decisions reached in similar cases.
In considering the impact of Kennedy (No.2), the reasoning behind the decision previously made by the Court of Appeal is significant. In reaching the decision to convict the appellant, the Court of Appeal concluded that when the defendant supplied the drug for immediate injection, they “acted in concert” with one another and so could be held liable under s23 and manslaughter (Lee, 2008). Many have criticised this decision, principally due to the courts’ ignorance towards the free will and autonomy of all parties involved. Fortson and Ormerod states such approach were “unconvincing and potentially unworkable” for many reasons and in reaching this decision to dismiss the first appeal, the courts failed to establish autonomy of an informed third part, therefore breaking the chain of causation required for liability. (Fortson & Ormerod, 2005).
Nevertheless, in recognition of this mistake, the Lords made the free will and autonomy principle a critical element in their judgment in Kennedy (No.2). It recognised that an informed adult is to be treated as an autonomous being with the ability to freely make their own decisions. The victim in this case was considered to be a freely autonomous being with the choice to self-inject himself with the heroin, fully aware of the possible consequences to his actions. In self-administering the drugs provided, the court cited that a ‘free, deliberate and informed intervention of a second person’ broke the chain of causation which then was ‘held relieve the first actor of criminal responsibility’ (Hart & Honoré, 1985). In doing so, the courts cited an article by Professor Glanville Williams, stating that a doctrine of secondary liability was developed when the voluntary choice to inject the heroin into himself was made and broke the initial chain of causation, thus not making the appellant liable for manslaughter (Finis for Novus Actus? [1989]). Lord Bingham in this case held that in reference to the question posed to the court on convicting one of manslaughter under s23, an intervening act was seen to have broken the chain of causation and thus no longer makes the appellant liable for manslaughter.
In subsequent cases, this ruling has held precedence in the courts’ later decisions on manslaughter and drug cases. Although other cases outside the realm of drug administration are important it is substantial that in terms of the Lords’ decision on Kennedy (No.2), precedent has been set in relation the doctrine of causation applied mainly in manslaughter and drug administration cases. In the case of R v Burgess [2009], the appellants had initially pleaded guilty to manslaughter, escape and the administering of poison ([2009] EWCA Crim 516). In light of the Lords’ decision on Kennedy (No.2), the defendant appealed to the Court of Appeal in which the Kennedy ruling upheld and was used to acquit the two on the basis one could not be liable for the self-administration of a noxious thing causing death by a fully informed adult. Nevertheless, it was also made clear by Lord Bingham that where it could be found that the supplier and the person who self-administered the drug were acting in “joint administration”, a manslaughter conviction could be made. in recognition of this ruling, many cases have used the Lords’ decision to establish liability, paying closer attention to the contents of s23 and the question raised in the Kennedy case as a basis.
In conclusion, whilst the ten years leading up to the Lord’s decision conveyed the narrow approach courts have taken towards causation and manslaughter cases, the impact of this decision is critical. Further courts have used this as a basis in establishing liability, relying closely on the idea of autonomy and free will where the chain of causation can be said to have broken. Academics have criticised earlier decisions made and the judges’ failure to recognise and analyse the contents of s23 closely to establish liability. In light of this decision, courts have adjusted their approach in manslaughter cases, particularly in regard to drug administration cases using Lord Bingham’s judgment in the Kennedy (No.2) ruling to establish any chain for causation and a breach under s23.