FERNANDO AUGUSTO MEGALHAES DIAS

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FERNANDO AUGUSTO MEGALHAES DIAS

No. 2001/03225/W1

Neutral Citation Number: [2001] EWCA Crim

2986

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Thursday 13 December 2001

B e f o r e:

LORD JUSTICE KEENE

SIR RICHARD TUCKER

and

HIS HONOUR JUDGE MADDISON

(Sitting as a Judge of the Court of Appeal Criminal Division)

__________________

R E G I N A

– v –

FERNANDO AUGUSTO MEGALHAES DIAS

__________________

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone 020-7421 4040

(Official Shorthand Writers to the Court)

_________________

MR N RUMFITT QC appeared on behalf of THE

APPELLANT

MR W COKER QC appeared on behalf of THE CROWN

____________________

J U D G M E N T

(As

Approved by the Court)

____________________

Thursday 13 December 2001

1. LORD JUSTICE KEENE: This appeal raises a short

but important point about the offence of manslaughter by an unlawful and

dangerous act. On 23 May 2001, at Northampton Crown Court, before His Honour

Judge Hall, the appellant was convicted by a majority verdict of ten to two of

manslaughter, for which he was sentenced to three years imprisonment. He also

pleaded guilty to a count of possession of a class A controlled drug, namely

heroin, for which he was sentenced to one day’s imprisonment to run

concurrently. The total sentence therefore was three years’ imprisonment. He now

appeals against the conviction for manslaughter, the trial judge having granted

a certificate in the following terms:

“Was I correct as a matter of law to direct

the jury that it is unlawful for a man to inject heroin into himself?”

2. The facts of the case are not complicated or,

sadly, uncommon. On 27 August 2000, Edward Escott died as a result of an

injection of heroin. The only person with him was the appellant. They were both

vagrants. They did not know each other well, but in July and August of that year

they were living in, or associated with, a night shelter at Northampton. Mr

Escott regularly abused drugs. Drugs other than heroin were found in his body,

as was alcohol. However, although he smoked heroin, no one had seen him inject

it. The appellant was a heroin addict who did inject the drug. The appellant did

not give evidence at trial. When interviewed by the police he had said that he

and Escott had agreed to put £5 each into a kitty. The appellant then ed

his dealer and bought a £10 bag of heroin. He and Escott then found a suitable

place on the stairway of a block of flats. Using his own “kit”, the

appellant prepared the heroin injection by putting the powder into a spoon,

adding the citric acid and water, heating it up and drawing it into the syringe.

He then handed the syringe to Escott. Escott removed the belt from his own

trousers, used it as a tourniquet and injected the heroin into himself. The

appellant washed the syringe and injected the heroin into himself. By the time

the appellant had recovered from the effects of the heroin, Escott was dying.

The appellant arranged for a passer-by to call an ambulance and then left the

scene. Escott was taken to hospital but died.

3. The prosecution did not originally accept

this version of events. They argued that there was evidence from which it could

properly be inferred that the appellant had injected Escott. However, the judge

took the view that that was not sufficiently supported by the evidence and would

be “guesswork”. He left the case to the jury on the basis that Escott

had injected himself with the heroin.

4. Although there were several possible bases

relied on by the Crown for the manslaughter charge, the possibilities were

narrowed down by the time the matter was left to the jury. The Crown had been

running manslaughter by gross negligence, but the judge was not prepared to

leave such a verdict open to the jury. The Crown had also relied on section 23

of the Offences against the Person Act 1861 which insofar as material provides:

“Whosoever shall 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 …. shall be guilty of an offence ….”

5. The argument was that if the appellant’s

actions came within the terms of that section then they were unlawful and would

support a verdict of unlawful and dangerous act manslaughter. However, the judge

did not direct the jury that they should consider whether the appellant had

“caused” the heroin to be administered to or taken by Escott or had

otherwise administered it to him, and so it seems that the judge was not

persuaded by the legal argument which had been advanced by the Crown to that

effect. The direction actually given to the jury was in the following terms:

“…. manslaughter, is proved in this

particular case if the prosecution satisfy you so that you are sure that the

defendant assisted and deliberately encouraged Mr Escott to take the

heroin.”

6. That direction was repeated to the jury. That

formulation is appropriate where someone is charged with aiding and abetting an

offence. It would render him liable as the secondary party in circumstances

where he does not cause the actus reus because the voluntary act of another

intervenes.

7. The jury were told that there was no dispute

that the heroin in the syringe was a cause of death. The direction given by the

judge, which we have just quoted, was the result of a ruling made by him after

extensive legal argument. He ruled that following the decision in

R

v Kennedy

[1999] Crim LR 65, the

self-injection by Escott of the heroin was itself an unlawful act. It followed

that aiding and abetting such an offence would make the appellant criminally

liable as a secondary party for that unlawful act which in turn had caused the

death of Escott.

8. It will be observed that it was not contended

that the manslaughter charge could properly be based merely on the supply of the

heroin to Escott. Certainly that was not how the matter was left by the judge to

the jury. That supply of heroin was undoubtedly unlawful, but the difficulty

about relying on it as a basis for manslaughter would have been one of

causation. Escott was an adult and able to decide for himself whether or not to

inject the heroin. His own action in injecting himself might well have been seen

as an intervening act between the supply of the drug by the appellant and the

death of Escott. The chain of causation was probably broken by that intervening

act. That was the interpretation placed on the case of

R

v Dalby

(1982) 74 Cr App R 348 in the

subsequent decision of this court in

R v

Goodfellow

(1986) 83 Cr App R 23, 27. It

accords with a passage from Professor Glanville Williams’ Textbook of Criminal

Law (2nd ed), page 39, which was cited in argument below:

“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. An intervening act of this kind, therefore, breaks the

causal connection that would otherwise have been perceived between previous acts

and the forbidden consequence.”

9. We return to the question whether the judge

was correct to rule that the self-injection by Escott with heroin was an

unlawful act. In this context ” ;unlawful” means that the act has to

be a criminal offence: see

Franklin

(1883) 15 Cox CC 163, and

Lamb

[1967] 2 QB 981, 988D-E.

10. On behalf of the appellant Mr Rumfitt QC

relies on the decision of this court in

R

v Cato

(1976) 62 Cr App R 41. That was a

case where the appellant Cato had injected the deceased with morphine with his

consent, but bringing about his death. The court upheld the conviction for

manslaughter by an unlawful and dangerous act because there was an offence

committed by the appellant under section 23 of the 1861 Act, namely

administering a noxious thing. That was a case where the appellant had injected

the deceased, not one of self-injection by the deceased. Mr Rumfitt relies on a

passage at page 47 where the court in its judgment given by Lord Widgery CJ said

this:

“Of course, on the first approach to

manslaughter in this case it was necessary for the prosecution to prove that

Farmer had been killed in the course of an unlawful act. Strangely enough, or it

may seem strange to most of us, although the possession or supply of heroin is

an offence, it is not an offence to take it….”

11. That, it is submitted, is clearly right. The

possession or the supply of heroin is made an offence under the Misuse of Drugs

Act 1971, but nowhere does that statute make it an offence to inject oneself

with drugs.

12. It is sought on behalf of the appellant to

distinguish the case of

Kennedy

relied

upon by the trial judge. The facts of that case were very similar to those of

the present appeal. Kennedy had heated heroin and water in a teaspoon, put some

of it into a syringe and handed the syringe to the deceased in return for money.

The deceased immediately injected it into his own arm. He died as a result. In

upholding the conviction for manslaughter, the court relied upon another passage

in

Cato

, where it had been said at page 47 that, quite apart from the appellant’s act

being unlawful under section 23:

“We think that there would have been an

unlawful act here and we think the unlawful act would be described as injecting

the deceased Farmer with a mixture of heroin and water which at the time of the

injection and for the purposes of the injection the accused had unlawfully taken

into his possession.”

13. In

Kennedy

Waller LJ, giving the judgment of the

court, said at page 6 of the transcript:

“…. the injection of the heroin into

himself by Bosque [the victim] was itself an unlawful act, and if the appellant

assisted in and wilfully encouraged that unlawful conduct, he would himself be

acting unlawfully.”

14. It is contended by Mr Rumfitt that the court

in

Kennedy

misinterpreted

Cato

It is said that the injection was unlawful in

Cato

because administering a drug to another would be contrary to section 23. There

is, emphasised Mr Rumfitt, no offence of injecting heroin into oneself;

consequently, aiding and abetting the self-administration of heroin is not

unlawful. So far as section 23 is concerned, and its reference to ”

administering a noxious substance or causing such a matter to be taken”, it

is emphasised that the judge did not leave any issue to the jury on the basis of

section 23. It is argued that it cannot be said that the actions of the

appellant caused the heroin to be taken by Escott because there was here an

intervening act of Mr Escott. The trial judge seems to have accepted that. That

is why he did not leave to the jury the issue of whether the acts on the part of

the appellant had caused Escott’s death. Mr Rumfitt submits that there is a line

to be drawn, and it is to be drawn where the voluntary act of the deceased

intervenes.

15. For the prosecution Mr Coker QC contends

that there is no conflict between

Cato

and

Kennedy

and that the latter was rightly decided. However, he does not seek to argue that

self-injection with heroin is of itself an unlawful act. In his words the

prosecution “is not happy” with the judge’s conclusion to that effect.

Nonetheless, it is submitted that the conviction can be upheld, albeit on a

somewhat different basis. It is argued that all the ingredients of manslaughter

were present in the case with which we are dealing; that the unlawful act was

the supply of the heroin; and that that was a dangerous act because of the

likelihood that Escott would take it to his ill-effect.

16. So far as causation in concerned, Mr Coker

reminds us that the prosecution does not have to prove that the acts of the

appellant were the sole cause of the death of Escott, but simply that they

amounted to a substantial cause. The appellant’s assistance and encouragement,

as found by the jury, could amount to a contributory cause of death. However, it

is accepted by Mr Coker that the judge here did not direct the jury to consider

whether the appellant’s acts caused the death of Escott. That is in some

contrast to what happened at trial in

Kennedy

. Our attention has been drawn to page 11 of the transcript in that case where

the questions left to the jury in a formal sense are set out. It is to be noted

that the fourth of those questions reads as follows:

“Are we sure that the defendant’s act was a

significant cause of death?”

17. Mr Coker draws our attention also to the

following passage from the decision in

Kennedy

where part of the summing-up by the trial judge is quoted. The judge in that

case said:

“Preparing the heroin mixture that he

brought into the room and handing the heroin mixture in a syringe to Bosque for

immediate injection is capable of amounting to a significant cause of

death.”

18. It is argued that, if the unlawful act is

the supply and the handing of the mixture in a syringe to the victim, one can

find manslaughter properly based on the facts of the case such as the present.

In

Kennedy

the jury had found that there was an unlawful supply of drugs and that that,

the encouragement given by Kennedy, caused the death of the victim. That

was a dangerous act because the encouragement carried with it the risk of harm.

In the present case it is suggested that the jury’s findings that the

appellant’s acts assisted and encouraged Escott must be sufficient to show

causation.

19. We begin with the authorities which have

been cited to us. The earliest in time,

Cato

, undoubtedly arrived at the right result since to inject someone with heroin

and water would normally be an offence under section 23 of the 1861 Act. That

was the basis of the decision, and both the passages relied on (one by each

side) from page 47 of the report were strictly obiter. The case was in any event

concerned with the injection by one person of another with heroin and water, not

with self-injection. The statement that injecting the deceased with that mixture

was an unlawful act, irrespective of section 23, is not explained at any length.

It may be that it was based on the fact that the appellant was thereby supplying

heroin to the deceased — a criminal offence.

20. In

Dalby

the appellant had supplied the deceased with a class A drug (Diconal) in tablet

form and both had then injected themselves intravenously. It was not contended

that the act of self-injection was unlawful. The supply of the tablets clearly

was, and the case turned on the issue of causation. But the end result was that

the conviction for manslaughter was quashed.

21. The facts of

Kennedy

have already been set out earlier in this judgment. However, it is not easy to

see on what basis the court concluded that the act of self-injection was

unlawful because there is no real elaboration of this point. It is not

surprising that the Crown in this present appeal finds it difficult to uphold

that particular sentence in the report. The decision on this aspect has been

criticised in both Archbold 2002 at paragraph 19-100 and in Smith and Hogan (9th

ed) page 432. If

Kennedy

is rightly decided on this aspect, then it would seem that

Dalby

should have had a different result since on the facts there seems to have been a

comparable degree of assistance and encouragement by the appellant in the latter

case to that which took place in

Kennedy

. There is no offence under the Misuse of Drugs Act 1971, or other statute, or

at common law, of injecting oneself with a prohibited drug.

22. There is the offence of possession of such a

drug, and that offence was committed by Escott, the deceased. We have

considered, therefore, whether that renders the act of injection unlawful for

these purposes, but we find it difficult to see that it can do so. The causative

act (the act causing death) was essentially the injection of the heroin rather

than the possession of it. Self- injection undoubtedly requires unlawful

possession in a case such as this, but it is not in itself a separate offence.

No one could be charged with injecting himself with heroin, only with the

possession of it. The deceased was in possession of the heroin before he

injected it and also after he had injected it. Such possession amounted to an

offence, but the act of injecting was not itself part of the offence. It was

merely made possible by the unlawful possession of the heroin.

23. It seems therefore to this court that the

dictum of Lord Widgery CJ in

Cato

,

namely that it is not an offence to take heroin, was soundly based. To inject

another person with heroin, as in

Cato

, is likely to be unlawful, not merely because of section 23 but also because it

would amount to a supply of a prohibited drug. But that is not this case.

24. There is a further problem about the basis

of the present conviction, given the direction by the trial judge. The case was

not left to the jury on the footing that the appellant might have caused the

death of Escott, and that is perhaps understandable since the act of

self-injection was seen by the judge as a voluntary act of an adult not

labouring under any mistake as to what he was doing. The judge seems to have

taken the view that the chain of causation would have been broken by Escott’s

own action. It follows from that that the appellant could only have been guilty

of manslaughter as a secondary party and not as a principal. But in that case

who is the principal guilty of manslaughter? As there is no offence of

self-manslaughter, it is difficult to see how the appellant could be guilty of

that offence as a secondary party because of his encouragement or assistance to

Escott over the injection of the drug.

25. We accept that there may be situations where

a jury could find manslaughter in cases such as this, so long as they were

satisfied so as to be sure that the chain of causation was not broken. That is

not this case because causation here was not left to the jury. The argument

advanced by Mr Coker that the jury found assistance and encouragement on the

part of the appellant will not, in our judgment, suffice. 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. The Crown’s current approach as argued on this

appeal hearing, namely that the supply of heroin is unlawful and can be a

dangerous act causing death, is sound. The most obvious case is where the supply

takes the form of one person injecting the other who then dies. The position is

more difficult where the victim injects himself, but there may possibly be

situations where the chain of causation could be established. It is, however,

important that that issue be left to the jury to determine, as happened at the

trial in

Kennedy

26. The trial judge in a case such as this,

after identifying the unlawful act on the part of the defendant relied upon,

must direct the jury to ask whether they are sure that that act was at least a

substantive cause of the victim’s death, as well as being dangerous. That did

not happen here, and we cannot see that the jury’s finding can be seen as

establishing causation between unlawful supply on the one hand and death on the

other. That is not how the matter was left to them. It may seem to some that

there is morally not a great deal between this situation where A hands B a

syringe containing a drug such as heroin, with death resulting, and that where A

injects B with his consent with the contents of the syringe. But the vital

difference (and this is why causation cannot be assumed) is that the former

situation involves an act of B’s taken voluntarily and leading to his death. We

do not wish to suggest that there may not sometimes be cases where, on somewhat

different facts, manslaughter by way of gross negligence may arise if a duty of

care can be established, or where section 23 may be relied on so long as the

chain of causation is not broken.

27. But for the reasons already given this

conviction cannot be regarded as safe and it follows that it will be quashed.

This appeal is allowed.

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