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Causation, homicide and the supply of drugs

  • Timothy H Jones (a1)

This paper examines the significance of the issue of causation where a death results from the supply of an illegal drug. The characterisation of the drug user’s conduct by means of a principle of voluntary intervention, as favoured in English and Welsh law, is questioned. The customary academic reliance upon the work of Hart and Honoré is doubted. The possibility of a new statutory offence of causing death by the supply of a controlled drug is considered.

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1. Fletcher, Gp Rethinking Criminal Law (Boston: Little, Brown & Co, 1978) p 358 .

2. This is the language employed in the Misuse of Drugs Act 1971.

3. The essence of this crime is an intentional act that was unlawful and dangerous, resulting in the death of the victim (Director of Public Prosecutions v Newbury [1977] AC 500). The discussion in this paper is restricted to this type of manslaughter, although it can be noted that the application of reckless/gross negligence manslaughter has not been fully canvassed by either courts or academics (an exception is R Williams ‘Policy and principle in drugs manslaughter cases’ [2005] Cambridge LJ 66 at 75–78). See, further, below n 5.

4. [1998] Crim LR 830.

5. The Court of Appeal was reluctant to impose a legal duty on a drug dealer to summon medical help for a user suffering an overdose, which would be necessary to support a conviction for gross negligence manslaughter; see R v Adomako [1995] 1 AC 171. A contrast can be drawn with R v Ruffell [2003] 2 Cr App R (S) 53, where the appellant was an experienced drug user and the deceased had been ‘clean’ for some time. They injected themselves with heroin and when the deceased became ill, the appellant had taken steps to revive him. The fact ‘that he had taken upon himself the duty of trying to revive him…created a sufficient nexus to give rise to a duty of care’ (para [13]).

6. R v Dalby (1982) 74 Cr App R 348 at 351 per Waller LJ. For reasons given below, Dalby is an authority that should be treated with caution.

7. As suggested by Clarkson, Cmv Context and culpability in involuntary manslaughter’ in Ashworth, A and Mitchell, B (eds) Rethinking English Homicide Law (Oxford: Oxford University Press, 2000) pp 133165 at p 160: ‘the connection between…fault and the death is too tenuous’.

8. Their principal work is Hart, Hla and Honoré, A Causation in the Law (Oxford: Oxford University Press, 2nd edn, 1985). Helpful discussions of the philosophical background include and .

9. Hart and Honoré, n 8 above, p 403. This claim is reiterated in Honoré, T Appreciation and responses’ in Cane, P and Gardner, J (eds) Relating to Responsibility: Essays for Tony Honoré on his Eightieth Birthday (Oxford: Hart Publishing, 2001) ch 9, p 235 .

10. Tadros, V Criminal Responsibility (Oxford: Oxford University Press, 2005) ch 9 provides an account of causal enquiry that emphasises its sensitivity to moral factors. At p 156, he notes ‘the notion of causation that is relevant to the attribution of responsibility cannot very neatly be separated from the reasons to attribute responsibility, and through that to other moral and legal concerns’.

11. For a critique of the orthodoxy (on rather different grounds), see Norrie, A Crime, Reason and History. A Critical Introduction to the Criminal Law (London: Butterworths, 2nd edn, 2001) ch 7.

12. This terminology is derived from Feinberg, J Doing and Deserving. Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970) p 153 .

13. Honoré, T Responsibility and Fault (Oxford: Hart Publishing, 1999) p 2 .

14. Ibid, p 6.

15. Ibid.

16. Hart and Honoré, above n 8, p 44.

17. Kadish, Sh Complicity, cause and blame: a study in the interpretation of doctrine’(1985) 73 California Law Rev 323 at 333.

18. Alldridge, P Dealing with drug dealing’ in Simester, Ap and Smith, Ath (eds) Harm and Culpability (Oxford: Clarendon Press, 1996) ch 11, p 244. Alldridge further suggests (p 245): ‘it is not even clear that harm is done to a voluntary user of drugs by supplying her’. This hardly seems apposite in a case where the user has died (a circumstance not addressed by Alldridge). But if the act of supply is (re) classified as ‘harmless’ in this way, the absence of fault for the death (on the part of the supplier) becomes the logical conclusion.

19. Honoré, above n 13, p 5.

20. Ibid. Hart and Honoré’s reliance on ordinary language was gained not from an exploration of the language habits of ordinary people, but from an acquaintance with the work of ordinary language philosophers (including JL Austin and Gilbert Ryle). Halpin, A Definition in the Criminal Law (Oxford: Hart Publishing, 2004) discusses the impact of the ordinary language ‘fallacy’ in the criminal law. notes that Hart and Honoré‘offered little evidence of ordinary usage, and it seems likely that their views about it were considerably influenced by legal materials’. In any event, it is possible that the intuitions of the ordinary person (about issues of causation) could be faulty; see at 102.

21. R Heaton ‘Dealing in death’ [2003] Crim LR 497 at 506.

22. R v Roberts (1972) 56 Cr App R 95. Crocker, L A retributive theory of criminal causation’(1994) 5 Journal of Contemporary Legal Issues 65 at 84–91 offers criticism of the traditional reliance upon voluntariness in this context, placing emphasis instead on the probability of the victim’s action or whether it was done for reasons unrelated to the defendant’s actions.

23. R v Blaue [1975] 1 WLR 1411.

24. Norrie, above n 11, p 140. It may be that the judgement as to the voluntariness (or otherwise) of an act may involve the moral dimension sought to be excluded by Hart and Honoré.

25. For discussion of the situations that ‘should prevent self-ingestion from being a free, voluntary and informed act which breaks the chain of causation’, see Heaton, above n 21, at 507.

26. G Williams ‘Finis for novus actus?’ [1989] Cambridge LJ 391 at 392.

27. Ibid, at 393.

28. Ibid, at 391.

29. Ibid, at 393, n 5. This accords with the approach of Lord Nimmo Smith in the Scottish civil case of McTear v Imperial Tobacco [2005] The Times, June 14, where it is observed that the individualist philosophy of the common law requires that people must live with the legal consequences of their own choices (purporting to follow dicta in Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004] 1 AC 46). It was held that a cigarette manufacturer does not owe a duty of care to a person who is aware of the health risks associated with smoking. See also Badger v Ministry of Defence [2005] EWHC 2941 (QB), [2005] The Times, December 30, where it is observed that those who continue to smoke in the knowledge that by doing so they are damaging their health have to accept responsibility for their actions.

30. Feinberg, above n 12, p 166 (punctuation and emphasis changed from original).

31. Ibid, p 152.

32. The point is developed in Feinberg, J Problems at the Roots of Law. Essays in Legal and Political Theory (Oxford: Oxford University Press, 2003) ch 3 (‘Criminal entrapment – instigating the unpredisposed’). For a broad discussion, see ch 9.

33. Feinberg, above n 12, p 160.

34. Ibid, p 158.

35. Gross, H A Theory of Criminal Justice (Oxford: Oxford University Press, 1979) pp 232254 .

36. In any event, the prosecution does not have to prove that the defendant realised that his or her act was either unlawful or dangerous (Newbury, above n 3, at 507 per Lord Salmon). What is required is that the jury decide that the act of the defendant was ‘such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom albeit not serious harm’ (R v Church [1966] 1 QB 59 at 70 per Edmund Davies J).

37. See Lord Advocate’s Reference (No 1 of 1994) 1995 SLT 248; Paxton v HM Advocate 1999 SLT 56. For the contrary argument, see Simester, Ap and Sullivan, Gr Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 2nd edn, 2003) p 101 .

38. Gross, above n 35, p 246.

39. Hart, Hla and Honoré, T Causation in the law – I’(1956) 76 LQR 58 at 89. Although outside the scope of the present paper, it is noteworthy that French criminal law recognises precisely such a ‘false’ doctrine (la théorie de l’équivalence des conditions). For an introductory account, see .

40. See, generally, Lanham, D Principles of causation in criminal law’ in Freckelton, I and Mendelson, D (eds) Causation in Law and Medicine (Aldershot: Ashgate/Dartmouth, 2002) ch 10; ch 8.

41. This issue is discussed by N Lacey ‘Clean water and muddy causation: is causation a question of law or fact, or just a way of allocating blame?’ [1995] Crim LR 683 at 685.

42. Simester and Sullivan, above n 37, p 88. Both Tadros, above n 10, and Stapleton, J Perspectives on causation’ in Horder, J (ed) Oxford Essays in Jurisprudence: Fourth Series (Oxford: Oxford University Press, 2000) ch 4 acknowledge that mental states have an important role in deciding questions of causation.

43. The contrary view is expounded by Moore, Ms Causation and responsibility’(1999) 16 Social Philosophy and Policy 1 at 27–31. He rejects the notion that the culpability with which an act is done has relevance to the causal significance of that act.

44. For discussion of (some of) the case-law, see D Ormerod and R Fortson ‘Drugs suppliers as manslaughterers (again)’[2005] Crim LR 819; Heaton, above n 21; Reed, A Involuntary manslaughter and assisting drug-abuse injection’(2003) 67 Journal of Criminal Law 431 ; .

45. R v Cato [1976] 1 WLR 110.

46. [1989] Crim LR 149.

47. In addition, the evidence was equivocal as to whether the heroin had been a substantial cause of death (the deceased had already consumed a potentially lethal quantity of alcohol).

48. (1982) 74 Cr App R 348.

49. Ibid, at 352.

50. (1986) 83 Cr App R 23. The House of Lords in the Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 confirmed this point.

51. For discussion of this issue, see Smith, Jc and Hogan, B Criminal Law (London: Butterworths, 10th edn, 2002), by Sir John Smith, pp 384–385.

52. (1986) 83 Cr App R 27.

53. [1999] Crim LR 65. See now R v Kennedy (No 2) [2005] EWCA Crim 685, [2005] 1 WLR 2159.

54. R v Finlay [2003] EWCA Crim 3868 (unreported); R v Kennedy (No 2) [2005] 1 WLR 2159. The earlier decision is R v Cato [1976] 1 WLR 110.

55. [2002] 2 Cr App R 5.

56. [2003] 2 Cr App R 10.

57. [2003] EWCA Crim 3868.

58. Ibid, para [15] per Buxton LJ.

59. Ibid, para [12].

60. Ibid, para [18].

61. [1999] 2 AC 22.

62. [2003] EWCA Crim 3868 at [15].

63. Kennedy (No 2), above n 54, at para [41].

64. Ibid.

65. [1999] 2 AC 30.

66. Ibid, at 36.

67. Ibid, at 34.

68. Simester and Sullivan, above n 37, pp 99–100.

69. See the text accompanying n 30, above.

70. R v G [2003] UKHL 50, [2004] 1 AC 1034 at 1055–1057 per Lord Bingham of Cornhill.

71. Thus Lord Bingham of Cornhill, ibid, at 1056, places reliance on the views of Sir John Smith and Glanville Williams.

72. [2005] 1 WLR 2159.

73. [2002] Crim LR 490.

74. Ibid, para [51].

75. Ibid, para [42].

76. R v Latif and Others [1996] 2 Cr App R 92 at 104.

77. It is criticised severely by R Heaton ‘Principals? No principles’ [2004] Crim LR 463 (an article commenting on Rogers and Finlay). See also Ormerod and Fortson, above n 44.

78. Heaton, above n 77, at 467: ‘it is questionable whether the current stretching of causation principles…achieves anything on a practical level to compensate for the havoc wreaked on a theoretical level’. See also Ormerod, D Smith and Hogan’s Criminal Law (Oxford: Oxford University Press, 11th edn, 2005) p 62 (‘the courts are adopting a revolutionary approach to causation’).

79. See Ormerod and Fortson, above n 44 (who restate the Hart and Honoré orthodoxy without criticism).

80. [1999] Crim LR 65 at 67–68. Sir John must have been referring to legal causation, since there was factual causation: but for the supply of the heroin, there would have been no death. This issue is discussed in State v Wassil 133 Conn 174 (1995).

81. Simester and Sullivan, above n 37, p 101.

82. Simester, Ap and Sullivan, Gr Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 1st edn, 2000) pp 9091 .

83. [2003] Crim LR 555 at 557.

84. [2003] 2 Cr App R 10 at [7].

85. Reed, above n 44, at 438 (emphasis added).

86. Ibid, at 439. Despite the reference to the UK, the only cases referred to are from the English and Welsh jurisdiction.

87. The most substantial articles (those of Heaton, above n 21, and Ormerod and Fortson, above n 44) do not.

88. 1984 JC 23.

89. 1991 SLT 614 at 615.

90. 1995 SLT 248.

91. Ibid, at 253.

92. Ibid, at 251–252.

93. Sir Gordon, Gerald H (edited by MGA Christie) Criminal Law (Edinburgh: Thomson/W Green, 3rd edn, 2001) p 384 .

94. 1999 SLT 771.

95. This is a simplification of complex medical evidence.

96. 1999 SLT 771 at 775.

97. Gane, Chw Criminal law reform in Scotland’(1998) 3 SLPQ 101 at 112.

98. 1995 SLT 248.

99. D Sheldon ‘Dole, directness and foresight in causation: Lord Advocate’s Reference No 1 of 1994’ 1996 JR 25 at 41.

100. Ibid, at 31.

101. This appears also to be the implication of the Law Commission’s Draft Criminal Code Bill 1989, Law Com No 177, s 17(2), which formed the target for the criticisms of Glanville Williams, above n 26 (and explains the title of his article). The provision says that a person does not cause a result ‘which he did not foresee, and…which could not in the circumstances reasonably have been foreseen’.

102. Feinberg, above n 12, p 166.

103. The same refusal to regard the victim’s consumption of the drug as an intervening cause is reflected in a number of decisions from the USA. See, for example, Commonwealth v Osachuk 43 MassAppCt 71 (1997); State v Wassil, above n 80; Shirah v State 555 So 2d 807 (1989).

104. A helpful account is Talty, B New Jersey’s strict liability for drug-induced deaths: the leap from drug-dealer to murderer’(1999) 20 Rutgers Law Jnl 513 .

105. Rambo, Lh An unconstitutional fiction: the felony-murder rule as applied to the supply of drug’(1986) 20 Georgia Law Rev 671 .

106. It is recognised that a statutory offence is not needed in Scotland, since the conduct falls within the scope of the common-law crime of culpable homicide. Given that the Misuse of Drugs Act 1971 applies throughout the UK, however, it would provide a convenient statutory alternative to culpable homicide (in the same way as causing death by dangerous driving, under Road Traffic Act 1988, s 1, as substituted by Road Traffic Act 1991, s 1).

107. See further the text accompanying nn 28–29, above.

108. The risk of conviction of the additional offence might have a further deterrent effect.

109. This contrasts with the situation where a car salesman sells a sports car to a person known to be a dangerous driver, who proceeds to drive dangerously and dies in the resulting car crash. Parliament has not judged the sale of a sports car sufficiently harmful to justify the imposition of criminal liability.

110. ‘Production and supply’ are the terms used in Misuse of Drugs Act 1971, s 4. This paper has discussed supply alone; consideration would have to be given to the inclusion of manufacture within the scope of the offence. It will not go unnoticed that the archetype for this draft provision is the offence of causing death by dangerous driving, above n 106.

111. The model is the New Jersey Criminal Code, Title 2C, s 35-9.

* I am grateful to Andrew Halpin and Victor Tadros for advice during the writing of this paper. Neither should be taken to endorse the views expressed.

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