West Law Report

Culpability for supply of self-administered drug

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 6, 2009

Culpability for supply of self-administered drug
High Court of Justiciary
Published February 6, 2009
Michael Kane v HM Advocate
Kevin MacAngus v HM Advocate
Before the Lord Justice-General (Lord Hamilton), Lord Osborne, Lord Nimmo Smith, Lord Kingarth and Lord Mackay of Drumadoon
Judgment January 27, 2009

Where a controlled drug was supplied to another, who then administered it to himself causing his death, it was open to a jury to convict the supplier of culpable homicide.

The High Court of Justiciary, sitting as the Court of Criminal Appeal in Scotland, so held refusing the appeals of the appellants, Michael Kane and Kevin MacAngus, against the decisions of trial judges refusing their pleas to the relevancy of the indictments against them and remitting the cases for trial.

Mr Kane was charged with killing another by unlawfully supplying her, and injecting her, with diamorphine, a Class A drug, resulting in her death.

Mr MacAngus was charged with killing another by unlawfully supplying him with Ketamine, a class C drug, which the other administered to himself resulting in his death.

Mr Murray Macara, QC, solicitor, and Mr Brian Fitzpatrick, solicitor, for Mr MacAngus; Mr Chris Shead and Miss Jane Farquharson for Mr Kane; Mr James Wolffe, QC, Advocate-Depute, and Mr Donald Cameron for the Crown.

THE LORD JUSTICE-GENERAL, delivering the opinion of the court, said that a bench of five judges had been convened because the appeals raised questions about whether the approach adopted by the High Court of Justiciary in Lord Advocate’s Reference (No 1 of 1994) (1996 JC 76) to cases involving death following the supply of controlled drugs was correct in light of the decision of House of Lords in R v Kennedy (No 2) (The Times October 19, 2007; [2008] 1 AC 269).

In the context of crimes founded on reckless conduct, the Scottish courts had adopted a different approach to that taken in England and Wales: see Khaliq v HM Advocate (1984 JC 23) and Ulhaq v HM Advocate (1991 SLT 614).

The Scottish authorities tended to suggest that the actions, including in some cases deliberate actions, on the part of victims, among them victims of full age and without mental disability, did not necessarily break the chain of causation between the actings of the accused and victim’s death: see HM Advocate v John Robertson ((1854)) 1 Irv 469), HM Advocate v Patrick Slaven and Others ((1885) 5 Couper 694) and McDonald v HM Advocate (2007 SCCR 10).

In Kennedy the House referred to classic academic statements on the matter of the autonomy of human action, including passages from Hart and Honoré Causation in the Law (2nd edition 1985) and Glanville Williams “Finis for Novus Actus?” ([1989] CLJ 391).

In “Causation, Homicide and the Supply of Drugs” ((2006) 26 Leg Studies 139), Timothy H. Jones offered a critique of Hart and Honoré’s analysis. Professor Jones did not stand alone in offering a critique: see also chapter 7 of J. Feinberg Doing and Deserving (Princeton University Press, 1970).

Difficult questions, some of them matters of degree, might arise in deciding whether the drug user who died was fully informed in the relevant sense.

There must be some doubt as to whether the prostitute victim aged 15 in R v Khan (The Times April 7, 2008; [1998] Crim LR 830), coming to heroin probably for the first time, should have been regarded as truly capable of consenting to the risks inherent in heroin use. Her assumption of risk seemed to be at the borderline of voluntariness.

There might be cases short of duress or necessity and also of deception and mistake, where the vulnerability of the drug user to the actings of the drug supplier would be relevant to whether the direct causal link was made out.

Subject always to questions of immediacy and directness, the law might properly attribute responsibility for ingestion and so for death to the reckless offender.

Different jurisdictions had adopted different solutions. In several of the United States of America it had been held that the voluntary ingestion of a controlled drug did not break the causal chain on a charge of homicide. South Africa appeared also to have rejected the proposition that a voluntary act of an adult, by reason of the breaking of the chain of causation, absolved in all cases from criminal liability.

There was no reason why the criminal law of Scotland ought not, consistent with earlier authority, adopt a practical, but none the less principled, approach such as that set out by Lord Justice-Clerk Thomson in Blaikie v British Transport Commission (1961 SC 44, 49).

His Lordship had said that it was necessary for the law to come to a compromise with the doctrine of causation; expediency and good sense dictated that for practical purposes a line had to be drawn somewhere and, in doing so, the court was to be guided by the practical experience of the reasonable man rather than by the theoretical speculations of the philosopher.

His Lordship said that the adult status and the deliberate conduct of a person to whom a controlled drug was recklessly supplied by another would be important, and, in some cases, crucial factors, in determining whether the other’s act was or was not, for the purposes of criminal responsibility, a cause of death following upon ingestion of the drug. But a deliberate decision by the victim of the reckless conduct to ingest the drug would not necessarily break the chain of causation.

It could not be said in either case that a jury, properly directed, could not find the causal link proved.

Law agents: Paterson Bell; Drummond Miller; Crown Agent.


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