Angelo's Manslaughter
Miguel has been charged with Angelo's manslaughter. Miguel lacks the mens rea for Angelo's murder but can nonetheless be charged with manslaughter on the basis of this constructive offence.
According to Newbury and Jones Miguel could be convicted of unlawful act manslaughter if it can be proved that he intentionally committed an act which was unlawful and dangerous, and that that act inadvertently caused death. Under the decision in R v Lamb the defendant need only have the mens rea for the unlawful act on which the offence is based, and there can be no question of Miguel's intent to supply Angelo with the drug.
Miguel's liability cannot, however, be founded on the fact that Miguel failed to call an ambulance, since the decision in Lowe confirmed that an omission will not suffice to found unlawful act manslaughter.
It is unnecessary to prove that Miguel knew that the act was unlawful or dangerous. The decision in Newbury and Jones makes clear that the key question is not whether the defendant knew that the unlawful act was dangerous, but 'would all sober and reasonable people recognise its danger.' Although in R v Dalby the court seemed to indicate that the unlawful act must be directed at the victim in order for it to suffice for the purposes of unlawful act manslaughter, Attorney-General's Reference (No. 3 of 1994) confirmed that it is sufficient to prove that the unlawful act was committed intentionally, that 'the death was caused by it and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result.'
As with many unlawful act manslaughter cases, identifying the act on which the offence is founded may be difficult, which has implications both for the unlawful act on which the offence is based and for the causation aspect of the Newbury test. This is particularly true of the several reported cases dealing with drug-related deaths in similar circumstances to Angelo's. Where the defendant actually injected the deceased with the drug, as in R v Cato, it is easy to identify the unlawful act as administering a noxious thing under s. 23 of the Offences Against the Person Act 1861, which provides that it is an offence to;
"unlawfully and maliciously administer to, or cause to be administered to or taken by any other person any poison, or other destructive or noxious thing, so as thereby to endanger the life of such person."
However, where as in Miguel's case the deceased injected himself, identifying the unlawful act becomes more problematic. In the case-law, the two problems of identifying the offence and causation are inextricably linked, and for this reason I shall deal with them together.
For Miguel's actions to be considered the cause in law of Angelo's death, they must first be proved to be its cause in fact, using the 'but-for' test established in White. But for Miguel's actions, could Angelo have injected himself with heroin and subsequently died? In the recent R v Kennedy, another similar case, it was confirmed that in these situations, 'but for' the supply of the drug to the deceased the victim would not have died 'at that precise time.'
Once this is established, legal causation must be considered. According to Hennigan the offence must only be a 'more than de minimis' cause of death. It was confirmed in R v Kimsey that there need only be a 'slight or trifling link' between the act and the prohibited result for the de minimis requirement to be met. This could be said to be the case, since there is more than a 'trifling link' between the supply of the drugs and the death which resulted from their consumption.
However, where, as in this case, an intervening act worsens or alters the prohibited result, a novus actus interveniens is said to have occurred which may break the chain of causation. Two possible such acts must be considered here - firstly, Angelo's own action in choosing to inject himself with the heroin solution. As Granville Williams has commented,
'What a person does if he has reached adult years, is of sound mind and is not acting under mistake, intimidation or other similar pressure, is his own responsibility and is not regarded as having been caused by other people.'
The series of cases dealing with the supply of drugs to users who subsequently overdose has considered this principle. In Dalby it was held that the defendant's supply of the drug Diconal to the deceased was not a cause of his death, since the act of supplying the drugs was not 'directed at the victim'. The Court did not explain this decision by reference to the victim's novus actus in injecting himself with drugs. In Kennedy the court confirmed that there was no requirement that the act was 'aimed at' the victim but rejected the view that the act of self-injection constitutes a voluntary intervening act, breaking the chain of causation. However in Dias, court held that the prosecution could not rely on the unlawful supply of drugs to the deceased as the unlawful act, because the decision of the deceased to take the drugs constituted a novus actus interveniens which breaks the chain of causation. Keene LJ did emphasise that this is not always the case;
'Assistance and encouragement is not to be automatically equated with causation. Causation raises questions of fact and degree. The recipient does not have to inject the drug which he is encouraged and assisted to take. He has a choice. It may be that in some circumstances the causative chain will still remain. That is a matter for the jury to decide.'
A series of contradictory cases followed, making opposed statements as to what could constitute the unlawful act which caused the death in these cases. The Criminal Cases Review Commission finally referred the Kennedy case back to the Court of Appeal under s9 Criminal Appeal Act 1995. In that case, since the defendant had not only provided but also prepared the drugs for injection the court at first instance thought that the defendant has aiding and abetting the deceased to inject themselves - but this is not actually an offence. The Court of Appeal held that the case law indicates that
'a person who caused their own death did not commit a crime, so it followed that a person who merely encouraged them to do so was not an accessory to manslaughter, as there is no principal to whom he is the accessory. On the other hand, where the defendant and the victim had acted in concert in either administering or causing the drug to be administered, then the defendant will have committed an offence under s 23 of OAPA 1861, and that offence was an unlawful act that could be the basis for a manslaughter charge.'
Lord Woolf LCJ felt that because the defendant is participating in the s. 23 offence effectively removes the causation issue.
So in this case, for Miguel to have legally caused Angelo's death, a jury would have to consider whether Miguel and Angelo had acted 'in concert' in causing the drug to be administered. If so, they together committed a s23 OAPA 1861 offence on which Miguel's conviction of Unlawful Act Manslaughter could be based.
But there is a second potential novus actus interveniens to consider - that of Roderigo, who broke Angelo's rib in attempting to resuscitate him, puncturing his lung. We do not know from the facts whether it was the overdose or the punctured lung which ultimately clinically killed Angelo. However even assuming that the punctured lung was the primary cause of death, according to R v Pagett the acts of a third party will not break the chain of causation provided they are a reasonably foreseeable consequence of the defendant's actions. For a third party's action to be a novus actus it would have to be 'free, deliberate and informed,' where their decision to act has not been influenced or constrained by the situation created by the defendant's original act. This is a question for the jury, but in my view an attempt to resuscitate cannot be sufficiently independent of the defendant's act to satisfy this requirement. A novus actus must not be reasonably foreseeable - a condition which might be met if Roderigo's action is in itself so negligently performed as to be unforeseeable. This would be established in court by evidence as to the frequency with which broken ribs and punctured lungs result from resuscitation attempts and may again be a question for the jury. Finally however, even if both of these criteria are met there can be no novus actus where the defendant's original act remains an operating cause of the harm which is more than de minimis.
On this basis, I do not think that Roderigo's actions would be sufficient to constitute a novus actus interveniens and break the chain of causation between Miguel's action and Angelo's death. Without a suitable defence, Miguel might well be found to be liable for Angelo's manslaughter.
Should a charge of unlawful act manslaughter fail, however, gross negligence manslaughter might offer the prosecution an alternative basis for conviction. This species of manslaughter simply requires proof that the defendant performed an otherwise lawful act so negligently that, since death resulted from it, he deserves to be criminally culpable. Identifying the lawful act here would require a consideration of Miguel's actions in terms of their legality - although it certainly is not legal to supply and possess drugs there exists no provision or case-law rendering it illegal to fail to aid those in distress or to call the emergency services. But could it be argued that Miguel acted negligently in so doing?
The classic definition of gross negligence manslaughter appears in Hewitt LCJ's judgement in R v Bateman;
'..in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a matter of mere compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving of punishment.'
The offence arises where an individual has failed to exhibit a certain standard of competence and concern required by society. R v Adomako confirmed that;
'the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime.'
As such, unlike with unlawful act manslaughter, it is possible for an omission to amount to gross negligence. If it can be established that Miguel owed a duty to Angelo, which he failed to fulfil in not calling the emergency services, that this caused Angelo's death and was criminally culpable, then it may be possible to construct an argument. But there is no general duty to assist those in distress in UK law, and so unless the prosecution can successfully argue that Miguel had a special relationship with Angelo from which a duty might arise, or had voluntarily assumed responsibility for him, in my opinion it would be difficult to construct a prosecution based in gross negligence manslaughter.
Bibliography
- Clarkson
& Keating, Criminal Law Texts and Materials, 5
th Edition, Sweet & Maxwell London 2003 - Molan,
Bloy & Lanser, Modern Criminal Law, 5
th Edition, Cavendish London 2003 - Phippen, L and Radlett, D, Drugs and Manslaughter, 2005, NLJ 155.7184(1054)
- Reed,
A and Seago, P, Criminal Law, 2
nd Edition, Sweet & Maxwell, London 2002 - Simester,
AP and Sullivan, GP, Criminal Law: Theory and Doctrine, 2
nd Edition, Hart Publishing, Oxford 2003 - Smith
& Hogan, Criminal Law 10
th Edition, Butterworths, London 2002
Back to free law coursework
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
Was this useful to you?
Did you find this article useful? Was the content up-to-date or do you have something to add? Give us your feedback and we'll make this site even better for you to use!
