R v Kennedy

English Criminal Law

R v Kennedy
Image: ‘California Poppies’ by Lynda Reyes

The domestic criminal law principle of ‘free will’ within the confines of substance abuse is a question that by extension remains fraught with uncertainty (with particular regard to Class A substances). In this drug related death case the issue before the court was fundamentally one of autonomy versus conjoined culpability.

When two drug users were engaging in social discourse the now deceased party asked the appellant to prepare a syringe of heroin so that he might be able to sleep that evening. After preparing the drug in the manner requested the appellant left the room before the deceased self-injected the measured dose. Minutes afterwards the user was found breathless and pronounced dead upon arrival at the nearest hospital.

When heard during the original trial the appellant was convicted of supplying a class A drug under s.4(1) of the Misuse of Drugs Act 1971 and administering the drug under s.23 of the Offences Against the Person Act 1861. These two offences were then tantamount to a charge of manslaughter and sentence was set at eight years with five of those under imprisonment. When the defendant appealed the judges unflinchingly upheld the conviction and it so was that when the Criminal Cases Review Commission studied the finer details of the case that it was bought again before the Court of Appeal, where despite strongly presented contentions it was summarily dismissed and left to the defendant to seek final appeal in the House of Lords. 

With a need for investigation surrounding the notion that administration implied contributory action on the part of the supplier it was eventually made clear that the pervious judges had become victim to self-misdirection despite distinguishing case citations presented throughout the appeals. Ultimately the doctrine of novus actus interveniens  was sufficiently present enough for the injecting party to have acted under free will and appreciation of the inherent risks associated with heroin abuse; and that while the first offence (which itself carried a prison sentence) remained intact, the charge of manslaughter could not stand when held against the perhaps better appreciated evidence now on display.

Key Citations

“The Court of Appeal was wrong to conclude that, on the fact, the appellant was liable as a principal for joint engagement in the act of administering the dug.”

“The criminal law generally assumes the existence of free will.”

“…generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act…”

“Questions of causation frequently arise in many areas of the law, but causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises.”

“…that the deceased freely and voluntarily administered the injection to himself, knowing what it was, is fatal to any contention that the appellant caused the heroin to be administered to the deceased out taken by him.”

“At the trial of the present appellant there was no consideration of section 23 and the trial judge effectively stopped defence counsel submitting to the jury that the appellant had not caused the death of the deceased.”

“…the court gave no detailed consideration to the terms of section 23, and it is now, accepted that the deceased’s injection of himself was not an unlawful act.”

R v Miller

English Criminal Law

R v Miller
Image: ‘Carrying Mattresses’ by Stanley Spencer

Actus reus and mens rea are two very widely used criminal law maxims that once were essential for the clarification of intention, but sadly over the passage of time the former has become victim to legal abuses by lawyers seeking to bend a virtue that perhaps warrants review after hundreds of years of application.

In this matter the accused was a homeless man who after drinking a reasonable amount of alcohol entered an empty home before taking up occupancy in an empty room. After lighting a cigarette he then fell asleep on a mattress, at which point the cigarette began to ignite the mattress fibres thereby causing it to slowly smoulder.

Upon waking the appellant saw what was happening but chose to simply get up from the mattress and walk into an adjacent room before returning to sleep. It was not until the arrival of the local fire brigade that he awoke again to discover that the room he had since left was now ablaze, and that significant fire damage had resulted from his failure to extinguish the burning mattress.

Upon summary the appellant stood accused of recklessness causing criminal damage to another’s property that in turn led to a conviction of arson under s.1(1)(3) of the Criminal Damage Act 1971. While under appeal it was argued that both mens rea and actus reus are key elements to a criminal conviction and that because the appellant had left the room he could not be found liable through inaction as opposed to action (actus reus), while further arguing that he was under no obligation to extinguish the burning mattress and that his mens rea was ultimately irrelevant to the proceeding fire.

The crux of this defence misdirection is that while actus reus explores the actions of a defendant the reality of life is that inaction by its own virtue is an equally destructive process when the party in question can see very clearly that it was his previous actions that initiated the root offence and that there were sufficient steps available to the defendant to prevent the damage from spreading (including seeking the assistance of third parties to that effect). Therefore a defence based upon the interpretation of a word does nothing to circumvent the social responsibility of those faced with potentially (yet avoidable) damaging situations.

While the appeal was dismissed it was again put before the House of Lords who listened intently to a bargaining application for the quashing of an arson charge before succinctly explaining that with no quarter for doubt it was evident that the appellant had elected to recklessly avoid his personal obligation to prevent the fire from growing in favour of distancing himself from his original action regardless of the foreseeable consequences that followed.

Key Citations

“The habit of lawyers of referring to the “actus reus” suggestive as it is of action rather than inaction, is no doubt responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English Law.”

“…it is the use of the expression “actus reus” that is liable to mislead, since it suggest that some positive act o the part of the accused is needed to make him guilty of a crime and that a failure or omission to act is insufficient to give rise to a criminal liability unless some express provision in the stature that creates the offence so provides”

“I see no rational ground for excluding from conduct capable of giving rise to a criminal liability, conduct which consists of failing to take measure that lie within one’s power to counteract a danger that one has oneself created.”

“…in case where the relevant state of mind is not intent but recklessness i see no reason in common sense ad justice why mutatis mutandis a similar principle should not apply to impose criminal liability upon him.”

“I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would be at the time when he didi it, does in fact create a risk that property of another will be damaged…”

“I would commend the use of the word “responsibility” rather than “duty” which is more appropriate to civil than to criminal law, since it suggest an obligation owed to another person, i.e. the person to whom the endangered property belongs, whereas a criminal statute defines combinations of conduct and state of mind which render a person liable to punishment by the state.”

R v Stone (John Edward)

English Criminal Law

R v Stone (John Edward)
Image: ‘The Earth (Zemliia) by Bohdan Pevny

In this landmark criminal law case the distinction between indifference to and perception of risk are carefully weighed in order to appreciate that when compared for their relevance to recklessness the outcome remains the same despite differing routes to dire consequences.

In 1972 an eccentric sibling moved into the home of her older disabled brother after a falling out with her sister. The terms of the living arrangement was that of a landlord and tenant in so much that rent was paid and each were free to live their lives independently of one another. While the brother lived with his mistress and housekeeper along with his mentally challenged son, the sister occupied the front room of the home and maintained a high degree of privacy despite openly suffering from anorexia nervosa (although undiagnosed at the time); a condition that precluded regular meals in favour of a low bodyweight that in many instances was known to result in premature death or at best extreme immobility.

After a period of almost nearly three years the sister’s health deteriorated to a point that she became permanently bedridden and unable to clean or feed herself. Despite repeated express concerns from the mistress to the brother regards his sister’s condition there were no attempts made by the either party to extend their efforts in seeking medical help beyond that of unsuccessfully trying to locate her doctor. When matters continued with no real intervention the now seriously ill woman was eventually found dead in her bed amidst evidence that no care had been taken to tend to her toiletry needs or physical health requirements prior to her death.

When reported to the police the two defendants were summoned and convicted of manslaughter upon grounds of a breach of duty of care through recklessness, whereupon the two parties appealed under the presumption of diminished responsibility. When considered under appeal the judges found that irrespective of whether the couple claimed to have taken limited steps to get the deceased help, there was insufficient evidence to avoid the conviction of recklessness as (a) there was adequate foresight of the risk posed to the dying woman while under the assumed care of her brother and mistress and (b) that the conduct taken to redress such a risk was made with little regard to the seriousness of her condition.

Ultimately when taken in context the court felt that it mattered not which route had been taken, only that the destination resulted in her death; and that both parties had been made aware of possible options yet continued to ignore the duty bestowed upon those assigned the care of a vulnerable person, in particular a close relative with a history of self-neglect and malnutrition.

Key Citations

“Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; the appellant Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required.”

“They tried to get a doctor; the tried to discover the previous doctor. The appellant Dobinson helped with the washing and the provision of food.”

“The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.”

“It is clear that a sentence of immediate imprisonment was unavoidable, if of nothing else at least to mark the public disapproval of such behaviour.”