had the effect of overruling R v Rogers [2003] 1 WLR 1374 and R v Finlay [2003] EWCA Crim 3868 and reversing the Court of Appeal’s ruling in R v Kennedy (No 2) [2005] EWCA Crim 685. In Rogers, the defendant applied a tourniquet to the victim’s arm, to allow the victim to self-inject. This was held not to break the chain of causation as the defendant was ‘playing a part’ in the mechanics of the injection which caused death. In Finlay, the defendant had produced the situation to allow the victim to inject herself. She did so and died. Both of these cases have now been declared as incorrect in law.
When then will the defendant be liable? As the court in R v Evans [2009] EWCA Crim 650 made clear, ‘supply alone’ is not sufficient for a conviction of unlawful act manslaughter, unless the defendant was under a specific duty to act as a result of creating a dangerous situation (refer back to Miller and Evans above in relation to omissions).
Therefore, post Kennedy (No 2), for liability to be found in these circumstances, the jury would have to be sure that the defendant took part in the administration of the drug.
This means that the defendant must either:
(a) inject the victim himself (R v Cato [1976] 1 All ER 260); or
(b) jointly inject the victim (R v Burgess [2008] EWCA Crim 516).
in practice
Do not forget to consider all the possible outcomes of a case based on similar facts. If the victim dies as a result of injection by the defendant, the defendant may be liable for unlawful act manslaughter. Should the victim live, the defendant may be liable for administering a noxious substance contrary to s 23 of the OAPA 1861. The prosecution will consider all of these outcomes in its case preparation.
For commentary on these cases, see Ormerod and Fortson, ‘Drug Suppliers as Manslaughterers (Again)’ [2005] Crim LR 819 and Jones, ‘Causation, Homicide and the Supply of Drugs’ (2006) 26 LS 139.
Further acts of the victim
As detailed above, this final category is a mixed bag concerned with the numerous other acts that may or may not break the chain of causation. Table 2.12 details these further acts.
Table 2.12Further potential intervening acts of the victim
| Act | Example | Break the chain? |
| Refusal to consent to medical treatment | In R v Blaue [1975] 1 WLR 1411, the victim refused a blood transfusion on religious grounds which would have saved her life after being wounded by the defendant. The victim died as a result of loss of blood caused by the wounds inflicted by the defendant. | No |
| Neglect of injuries | In R v Wall (1802) 28 State Tr 51, the victim died as a result of an illegal flogging which he aggravated and neglected by drinking spirits to ease the pain. | No |
| Aggravation of injuries | In R v Dear [1996] Crim LR 595, the victim aggravated his wounds so that they reopened after being repeatedly slashed by the defendant. The victim died and the defendant remained the legal cause of death despite the victim aggravating his own injuries. See also R v Holland (1841) 2 Mood & R 351 and the California case of California v Lewis (1899) 124 Cal 551 for an interesting demonstration of this area in another jurisdiction. | No |
| Suicide/euthanasia | In R v Dhaliwal [2006] EWCA Crim 1139, the victim committed suicide as a result of the continued physical and emotional abuse she sustained from her husband, the defendant. The victim’s act did not break the chain of causation, and the defendant remained liable for her death. This principle was reaffirmed in R v Wallace (Berlinah) [2018] EWCA Crim 690 in which the Court of Appeal concluded that the victim’s own act of seeking euthanasia, following a serious acid attack by the defendant, in a different country did not break the chain of causation. The defendant remained liable given that the act of euthanasia was ‘a direct response to the inflicted injuries and to the circumstances created by them for which the defendant was responsible’ (per Sharp LJ). Note that the Crown Court Compendium advises (at 7-9(11)) that: ‘The facts of the case, and the resulting consideration in the Court of Appeal, should be considered as being truly exceptional. It is suggested that the greatest care should be taken if seeking to apply this case to different circumstances.’ | No |
2.7.3.4Act of God
The defendant will not be liable if a natural event occurs which is ‘extraordinary or not reasonably foreseeable’. This is often known as ‘an act of God’. According to Henry J in the Divisional Court in Southern Water Authority v Pegrum [1989] Crim LR 442:
[A]n act of God is an operation of natural forces so unpredictable as to excuse a defendant all liability for its consequences.
Two case examples will help explain this principle.
case example
Charge: Murder
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Whether an Act of God will break the chain of causation
In R v Gowans [2003] EWCA Crim 3935, the victim was placed in a coma after being attacked by the defendant. Whilst in a coma, the victim contracted septicaemia (blood poisoning) and died. The defendant was convicted of murder and his conviction was upheld on appeal.
Kay LJ in the Court of Appeal ruled that the defendant had put the victim in a state vulnerable to any infections. The defendant, therefore, was the legal (operating and substantial) cause of the death.
Gowans is an interesting authority on the point of an ‘act of God’. The naturally occurring event was the risk of infection given that we are all at risk of infection at any point in our lives; it cannot be controlled. The defendant remained responsible for the death of the victim because the victim was placed in a situation where infection was much more likely and probable. This therefore meant that the ‘act of God’ was not unforeseeable but, rather, was a probable outcome of the defendant’s actions. As it was foreseeable, it was incapable of breaking the chain of causation.
case example
Charge: Murder
Case progression: South Australian Full Court – Guilty
Point of law: Whether an act of God will break the chain of causation where it arose as a natural consequence of the defendant’s actions
In The Queen v Hallett [1969] SASR 141 (Australia), the victim, whilst drinking on a beach at night, had allegedly made a homosexual advance to
