criminal law Cases

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Criminal Law Cases

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R v Kennedy (No 2) [2007] UKHL 38

Unlawful act manslaughter – causation – drug dealers / suppliers

Kennedy prepared a syringe for the victim, who injected himself and died of an overdose. Following several earlier cases, Kennedy was convicted of unlawful act manslaughter.

However, the reasoning ignored the problem of causation. Generally speaking, where a third party acts in a free, voluntary and informed way and causes the result, this will break the chain of causation for the original defendant. The act of the victim, in injecting himself with the drug, was a free, voluntary and informed action. Kennedy was not a secondary to an unlawful act of the victim, as injecting himself was not unlawful.

The House of Lords stated the law on drug dealers and unlawful act manslaughter very clearly, and thereby resolved several years' of academic debate. The court ruled that where a drug dealer supplies drugs and the victim injects themselves and later dies, the drug dealer can never be guilty of unlawful act manslaughter, as the chain of causation is broken.

R v Evans [2009] EWCA Crim 650

Duty of care – drugs supply – gross negligence manslaughter

The victim was a drug addict. Her half sister obtained drugs from a dealer and supplied them to the victim. The victim overdosed and died. Evans was charged and convicted of gross negligence manslaughter.

The Court of Appeal held that Evans owed a duty of care to the victim to seek help for her. The duty owed was to counteract the situation which Evans had created by supplying the drugs. The appeal against conviction was dismissed.

Where a person dies after taking drugs, the supplier cannot be guilty of unlawful act manslaughter, but can, following Evans, be guilty of gross negligence manslaughter if they fail to ‘counteract the situation' which they have ‘created'.

R v JTB [2009] UKHL 20

Defence – doli incapax – whether defence ever available to children aged between 10 and 14

Section 34 of the Crime and Disorder Act 1998 abolished the rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing a criminal offence. The question for the House of Lords, when faced with a child aged 12 who had pleaded guilty to causing or inciting a child under 13 to engage in sexual activity, was whether section 34 had abolished the defence of doli incapax altogether in the case of a child aged between 10 and 14 years, or merely to abolish the presumption that the child had that defence, leaving it open to the child to prove that he was doli incapax.

The House of Lords held that the defence of doli incapax, and not merely the presumption, had been abolished completely by section 34 of the Crime and Disorder Act 1998.

R v Bree [2007] EWCA Crim 256

Sexual offences – consent – intoxication of consentee

Whether a person can consent to sexual activity when intoxicated.

Bree went to visit his brother. They went out for the evening with his brother's friends, including the complainant. They all drank a considerable amount of alcohol. The complainant remembered little about getting home, but once home remembers being sick and that Bree and his brother washed her hair. The complainant remembered nothing after this until regaining consciousness and finding Bree penetrating her sexually. The complainant agreed that she had not said ‘no', but contended that she had never consented. Bree accepted that the complainant was intoxicated but claimed that she was capable of consenting, had undressed herself and appeared willing. The jury convicted Bree of rape. Bree appealed on the basis that the judge had not made it clear that a person can consent to sexual activity even when intoxicated.

The Court of Appeal held that

“If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting… However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.” (at 34)

The Appeal was allowed.

R v EB [2006] EWCA Crim 2945

Sexual offences – consent – HIV status

Whether a person is guilty of rape if he has consensual sex with another without disclosing HIV status – is consent vitiated?

EB had sexual intercourse with the claimant. EB was HIV positive and failed to disclose this to the complainant. The question for the Court of Appeal was whether the apparent consent given by the complainant was ineffective as a result of EB's failure to disclose his status.

The Court of Appeal held that a charge of rape could not lie in these circumstances. It was held that:

“Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act.” (at 17)

However, this ruling does not mean that there is a defence to a charge resulting from harm created by the sexual activity (ie passing on HIV), but only relates to consent in sexual offences

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