Criminal Liability of Joe
Joe is liable for possession, supply, and permitting premises to be used for the supply of controlled drugs under the Misuse of Drugs Act 1971. The law provides that it is “unlawful for a person to have a controlled drug in his possession”. Joe is a user of illegal drugs. Any controlled drugs found on his person and place of residence renders him liable for possession. When Karla overdosed, Joe was in possession of the heroin that Karla injected on herself. It is also unlawful for any individual “to supply or offer to supply a controlled drug to another”. Joe purchased heroin for Karla and supplied it to her. Apart from possession of controlled drugs and supplying another with controlled drugs, Joe is also liable for allowing his flat to be used for supplying controlled drugs to other people. Under the law, it is unlawful to allow one’s premises to be used for “supplying or attempting to supply a controlled drug to another”. Joe supplies controlled drugs to other people. Since Karla went to the flat of Joe asking for heroin and administered the heroin in his flat, it can be assumed that Joe allows the use of his flat for the supply of controlled drugs to other people. Penalties for Joe’s violations of drug law provisions pertaining to heroin, a Class A controlled drug, are as follows: possession is punishable by a maximum imprisonment of up to 7 years, an unlimited fine, or imprison and fine; supply of a Class A controlled drug is punishable by a maximum of life imprisonment, an unlimited fine, or both life imprisonment and fine; and permitting premises to be used for the supply of Class A controlled drugs is punishable by a maximum prison sentence of 14 years.
Although Joe is liable for violations of provisions of the drug law, Joe is not liable for the death of Karla by supplying her with heroin. It has been established in R v Kennedy (Simon) that there is no unlawful act that arises from one person supplying illicit drugs to another person, when the use of illicit drugs causes the death of the other person. In this appeal case, the appellant was charged with constructive manslaughter by preparing the syringe of heroin that Mr. Bosque injected on himself and caused his death. A first appeal affirmed the finding of guilt for constructive manslaughter. In the second appeal, the decision reversed the finding of guilt. The distinction between joint administration and self-administration of controlled drugs was explained. In joint administration, the supplier of controlled drugs actively participates in administering controlled drugs on another person. In self-administration, the supplier’s role ends in providing controlled drugs and/or helping during the preparation of the drugs, but the user has free will in administering the drug on himself. In the given case, Joe reluctantly purchased the heroin, prepared the syringe, and tied the tourniquet around Karla’s arm. Karla insisted it was her choice to use heroin and she injected herself with the drug. As such, Joe’s criminal liability for the death of Karla does not arise from his role in supplying heroin, preparing the syringe, and tying the tourniquet around Karla’s arm.
Instead, Joe is liable for gross negligence manslaughter. Gross negligence manslaughter is a form of involuntary manslaughter that arises even if the defendant has been acting in a lawful manner. No mens rea exists. It has been shown that there is no manslaughter in preparing a syringe for administering a controlled drug when the person exercised free will in administering the illicit drug on himself/herself. However, there may still be liability for omission to perform an act when there is a duty to do so under common law. Several elements have to be proven to successfully prosecute a case involving gross negligence manslaughter. First, there exists a duty of care of the defendant towards the deceased. Second, the defendant breached this duty of care. Third, the breach of the duty of care was the proximate cause of the death. Fourth, the conduct of the defendant is awful or horrible to convince the jury to perceive this conduct as unlawful. Two cases illustrate the elements of gross negligence manslaughter.
In R v Khan & Khan, the defendants sold heroin to a 15-year old in their flat and allowed their place to be used by the girl for administering drugs on herself. She was a first-time user and administered twice the amount used by more experienced users. Afterwards, the girl slipped into a coma. The defendants left their flat. When they returned the next day, they found her dead. They carried her body to a dumping ground. Medical experts showed that immediate medical assistance could have prevented the death of the girl. The defendants were found guilty of gross negligence manslaughter. On appeal, the conviction was reversed based on misdirection, but the appellate court did not rule on whether or not a party supplying illicit drugs has a duty of care to the buyer/user of such drugs.
This issues was settled in a more recent case. In R v Evans, a duty of care emerged from supplying heroin to another person. In this case, one of the defendants supplied heroin to his half-sister. The other defendant, who was the mother of the deceased, was present in the room when the deceased administered the heroin on herself. The defendants realized that their family member was unconscious. Instead of calling for medical assistance, the defendants went to their rooms to watch television. The defendant half-brother was sentenced to four years imprisonment and the mother was sentenced to two years in jail because they had a duty of care to call for medical assistance, but omitted to do so.
Joe’s liability stemmed from the existence of his duty of care to seek immediate medical assistance for Karla after knowing that a dangerous situation has occurred, when Karla was showing signs of drug overdose. This duty of care comes from his role in supplying the heroin and allowing Karla to use his flat to administer the heroin. As drug user and supplier, it is assumed that Joe knew the serious consequences of not seeking immediate treatment for overdose, even if he was not familiar with the effects of excessive intake of heroin. Joe failed to comply with his duty of care. Out of fear, Joe left Karla on the common hallway of his flat block with the hope that another person would discover her and call for help. Someone did discover Karla and called for help. However, it has been shown that provision of medical assistance to Karla at an earlier time could have saved her life. Had Joe called for medical assistance as soon as he discovered Karla’s condition, she would have lived. Not calling for medical assistance for someone who needs it is deemed horrible to warrant penalty.
Criminal Liability of Lou
Lou is liable for murder for killing Mick. Murder is ‘the unlawful killing of a human being [] with malice aforethought’. Elements of the criminal offence are actus reus and mens rea. Actus reus is the actual unlawful killing of a person. Unlawful killing can be understood by considering cases where there was no unlawful killing, such as when a soldier causes the death of a person in the course of performing his duties, administering a dose of painkillers as part of end-of-life care, or performing an operation to separate conjoined twins with the expectation that this would lead to the death of the weaker twin. In these cases, the deaths were not unlawful. In the case of Lou, there was unlawful killing because the death of Mick did not occur similar to the circumstances of the cases where there was no unlawful killing. Mens rea is malice aforethought accompanying the unlawful killing of a person. This refers to the existence of an intention to kill or intention to cause grievous bodily harm, which was the cause of the death of the victim. This was confirmed in R v Cunningham, where the court affirmed the conviction of a man for the death of a person seven days after being beaten with a stool by the defendant. Intent to cause grievous bodily harm, which caused the death of victim, supported the conviction for murder. In the case of Lou, stabbing Mick several times with a large kitchen knife indicated intent to cause grievous bodily harm, which led to the instantaneous death of the victim. Under the Homicide Act 1957, murder is punishable by mandatory life sentence.
Lou is entitled to raise defences. A successful showing of self-defence can free Lou from criminal liability. Under common law, it is lawful for a person to exercise reasonable force in order to defend himself/herself from an attack. Self-defence can only be successfully raised as defence when the act is deemed reasonable. In Palmer v R, the appellate court held that an act of self-defence is reasonable when it can be shown that it was committed in the ‘heat of the moment’ and the defendant ‘honestly and instinctively’ believed that the act was necessary in defending himself/herself. Lou can defend the reasonableness of her action by showing that 30 minutes before she took a kitchen knife and stabbed Mick, Mick spat at her, blamed her sister for overdosing on heroin, stated that he was sorry he was not the one who gave Karla heroin, and threw her against the wall. However, the prosecution may also challenge the reasonableness of her act of stabbing Mick since 30 minutes has passed and the threat of physical harm from Mick appear to have abated. It is up to the jury to determine the reasonableness of Lou’s claim of self-defence.
Another defence that Lou can raise is provocation, which if successfully proven can lessen the charge to voluntary manslaughter. Provocation can be verbal, physical, or both. It may be intentional or deliberate. Provocation involves ‘sudden and temporary loss of self-control’. Recognition of the different reaction of women to provocation, which was described as ‘slow burn’ as opposed to ‘sudden and temporary loss of control’ in men, led to the reduction of the charge of murder to voluntary manslaughter. In this case, the defendant was abused by her husband for some time before she stabbed her husband. Lou can claim that she was provoked by Mick when he laughed and spat at her, grabbed her and shook her roughly, shouted that her sister deserved to overdose, and threw her against the wall. Mick was also a violent man and he hit Lou on several occasions. Provocation can also be proven by the shock and anger Lou felt after the confrontation with Mick that persisted, as shown by the frenzied stabbing of Mick 30 minutes after the confrontation. Again, it is up to the jury to determine the merit of the claim of provocation.
Bibliography
Statutes
Homicide Act 1957
Misuse of Drugs Act 1971
Powers of Criminal Courts (Sentencing) Act 2000
Cases
Palmer v R [1971] AC 814
R v Cato [1976] 62 Cr App R 41
R v Clegg [1995] 1 AC 482
R v Cunningham [1982] AC 566
R v Daffy [1949] 1 All ER 932
R v Dalby [1982] 74 Cr App R 348
R v Doughty [1986] 83 Cr App R 319
R v Dr Bodkins Adams [1957] Crim LR 365
R v Evans [2009] 2 Cr App R 10
R v Kennedy (Simon) [2007] 3 WLR 612
R v Khan & Khan [1998] Crim LR 830
R v Sara Thornton [1996] 1 WLR 1174
R v Vickers [1957] 2 QB 664
Re A (conjoined twins) [2001] 2 WLR 480
Books and Articles
Government Digital Service, ‘Drugs Penalties’ (12 August 2015) <https://www.gov.uk/penalties-drug-possession-dealing> accessed 28 February 2016
Lacy N, Wells C and Quick O, Reconstructing Criminal Law: Text and Materials (3rd edn, Cambridge University Press 2003).
