Causation Is, Broadly, The Establishment

Causation is, broadly, the establishment of whether or not a defendant’s actions caused the harm or damage in question to the victim. In the context of criminal liability it is divided into two categories, which must both be sufficed in order to establish causation: factual causation and legal causation. Factual causation focuses specifically on whether according to just the facts, the defendant caused the harm to the victim, usually tested using the ‘but for’ method i.e. but for their actions, would the victim have still suffered the same fate? Or, as Hart and Honore would put it, one must establish a parallel series of events for if the defendant had acted lawfully. Legal causation, on the other hand requires only that the defendant committed a censurable act, without an actus novus interveniens, and taking the victim as he finds them i.e. for vulnerable victims the defendant is still liable for any harm they encounter that the average person would not. The main issue courts face today regarding causation is the significant amount of contradictory case law, specifically regarding actus novus interveniens, of which Kennedy (No. 2) attempts to clarify.

Kennedy (No. 2) is a case beginning in 1997 and regards the facts of a man who prepared a syringe of heroin and handed it to his friend who shortly thereafter died from inhalation of gastric contents while acutely intoxicated by opiates and alcohol. The case involved a tricky bit of causation, but the Crown Court Judge convicted him of manslaughter. However, the defendant appealed to the Court of Appeal in 2005 and was dismissed, and then went on to appeal to the House of Lords in 2007 which held the appeal and quashed his sentence for manslaughter.

The several appeals, and contradicting decisions of the judges are all down to years of unclear case law regarding causation. In the case of Kennedy (No. 2) they were trying to establish whether causation can still be found on behalf of the dealer and/or preparator where a drug is self-administered by a victim who consequently dies; they must establish whether the victims intravenous injection constitutes an actus novus interveniens. Precedent set in R v Gillard [1988] clarified the word ‘administer’ to include conduct which brought a noxious thing into contact with a victim’s body, even if there was no application of direct physical force. Thus, one could take from this that to prepare a syringe and hand it to the deceased, a defendant is embarking upon conduct that can be classified as ‘administering’. However, the Court ruled in Armstrong [1989] that ‘if heroin did cause death, the deceased injecting himself was a novus actus interveniens breaking the chain of causation’ – the ratio decidendi of this being that an intravenous injection is enough to alleviate the blame from the defendant, even if the defendant had prepared the syringe. Thus, there was a significant amount of contradicting case law regarding causation.

With this case law, the courts inevitably found difficulty deciding what protocol to follow when establishing the causation in Kennedy (No. 2), however the House of Lords provided precedent in this case that they hope clarifies the confusion caused by past discrepancies. The main ratio decidendi in Kennedy (No. 2)’s judgement is taken to be that when person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death, the person involved in its supply cannot be found guilty for manslaughter, so long as they are found to be a fully-informed and responsible adult. Moreover, on a wider scale, when not limited to this case, it can be taken that the law regarding causation now states that an involvement in the supply of drugs cannot be categorised as causing the death of the user, as the user’s free and voluntary self administration provides sufficient novus actus interveniens to break the chain of causation. Additionally, it must be considered that precedence in the UK is prioritised according to the Court it came from, therefore this judgement, having originated from the House of Lords, will negate the previous ones.

However, it can also be argued that by setting this precedent and overruling the judgement in previous causation cases, the House of Lords are simply creating further confusion. Within the actus reus requirements of a crime there are omissions, of which one can be committed of a crime due to not doing something; within these omissions is ‘the creation of a dangerous situation’. The rule for these is that if an actor had reason to expect what happened, the result may be said to have been caused. However, if taking the precedent into account set in Kennedy (No. 2), it is arguable that a fully-informed and responsible adult would be expected to foresee that a user taking the drugs is a likely forthcoming of supplying drugs, thus creating a dangerous situation. Therefore, courts may, again, be left stuck over whether or not causal links can be found.

In order to fully evaluate the impact of the House of Lords’ decision in Kennedy (No. 2) it must be considered practically, as well as theoretically. Looking at cases like R v Finlay [2009] in which the facts mimicked Kennedy almost identically, the House of Lords ruled that his original conviction in 2002 was wrong, and on the basis of the precedent set in Kennedy (No. 2) his appeal should have been successful, with the manslaughter conviction quashed. From this, we can see that Kennedy (No. 2) was a change of law case, and the precedent set is being used in practise to clarify causation law.