In relation to the law on homicide, discuss the criminal liability of those who unlawfully administer drugs to a person with his/her consent, and who subsequently die from the drugs injected?

In order for a person to be convicted with murder it must be proved the person administering the drug must have the intention to kill or cause GBH even if the person injected has given their consent. An example where this was the case was the Doctor Harold Shipman killings; he purposely injected his patients with a lethal dose diamorphine which killed them. As Shipman was a doctor all of his patients would have consented to the injections as they would have believed to be good for them. Shipman was convicted of the murder of 15 people on 31 January 2000; it is now though he was responsible for over 250 deaths.

If you do not believe that a conviction of murder would be found in court, a person may be guilty of manslaughter. There are two types of manslaughter; voluntary and involuntary. I will first explain voluntary then involuntary.

Voluntary manslaughter must have all the elements of murder including malice aforethought (explained above), but the potential liability for the person is mitigated by the circumstances and/or state of mind. These are known as partial defences. The first of these which is a defence at common law is that of provocation. Provocation is defined as ‘When on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything done and said according to the effect which, in their opinion it would have on a reasonable man’. The test for provocation is ‘was the defendant provoked into the loss of self-control? and was the provocation enough to make a reasonable man do as he did?’ There is also a type of provocation known as ‘slow burn’ it is the loss of control which must be sudden and that does not mean immediate. This is often the case violent relationships. An example of this is R v Ahluwalia; in this case A had suffered violence and abuse from her husband over a long period. After one evening during which she had been threatened A went to bed, but thinking about her husband's behaviour was unable to sleep. She went downstairs, poured petrol into a bucket, lit a candle, then returned and set fire to her husband's bedroom. He died from his injuries. At A's trial the defence pleaded manslaughter on the grounds that she had not intended to kill him, only to inflict pain. Provocation was pleaded as a second line of defence based on her ill treatment throughout the marriage, but she was convicted of murder. A then appealed, the defence argued that the phrase might have led the jury to presume that provocation could only be pleaded if the act followed immediately from the alleged provocation, and as A had had time for deliberation the defence could not stand. However, particularly in the case of abused wives, the act could be the result of a "slow burn" reaction rather than an immediate loss of self control and the jury should have been directed accordingly. Their Lordships held that the judge's direction had been correct in that he left the issue to the jury to decide. The appeal succeeded on the question of diminished responsibility which the defence had failed to raise at the trial, despite the availability of a medical report that A was suffering from a depressive disorder at the time. When looking at the situation above an example could be then in an abusive relationship where both people are heroin addicts, one of the couple purposely inject a lethal dosage of the drug even though their partner had consented to the initial act of injecting.

Another defence would be that of diminished responsibility; this is defined as, where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. An example of this for the question above would be if the person who administered the drugs to the deceased was not of stable mind at the time that consent was given for the drugs to be administered.

Suicide pacts are also a defence, it is an offence for a party to a suicide pact to aid, abet, counsel or procure that other party to commit suicide. It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other . . . An example of this would be if two people decided to both commit suicide and the first person injected the second person with the drug and then went on to inject themselves with the intention that they would both die but the first person survived but had still killed the second person. He would be guilty of manslaughter.

The other type of manslaughter is involuntary manslaughter. Involuntary manslaughter occurs when the accused did not intend to cause death or serious injury but caused the death of another through  or . A person is guilty of involuntary manslaughter when he or she intends an unlawful act that is likely to do harm to the person, and death results which was neither foreseen nor intended. An example of this would be the case of R v Rodgers, R appealed against convictions for administering poison so as to endanger life contrary to the and for manslaughter. R had held a tourniquet on the arm of a drug abuser while the latter injected himself with heroin. The drug abuser subsequently died and R pleaded guilty to the two offences after the judge ruled that there was no defence to the charges. R contended that the judge had erred in holding that the application of the tourniquet was "part and parcel of the unlawful act of administering heroin" since applying the tourniquet did not constitute an unlawful act. The judge dismissed the appeal and said that by applying and holding the tourniquet, R had played a part in the mechanics of the injection which caused death and since he had committed the actus reus, he could have no defence to either offence. Although self injection was not an unlawful act, it was artificial and unreal to separate the application of the tourniquet from the injection which caused death. Accordingly, it was immaterial whether the deceased was committing a criminal offence in injecting himself once it had been established that R was a participant in the giving of an injection which caused death.

Another similar case is that of R v Cato, The defendant and the victim agreed to inject each other with heroin. The victim had consented to a number of such injections during the course of an evening. The following morning he was found to have died from the effects of the drug-taking. The defendant was convicted of maliciously administering a noxious substance contrary to s23 of the Offences Against the Person Act 1861, and of manslaughter, either on the basis that his unlawful act had caused death, or on the basis that he had recklessly caused the victim's death. The Court of Appeal held that the defendant had been properly convicted. Lord Widgery CJ stated that heroin was a noxious substance on the basis that it was likely to injure in common use, and that the defendant had administered it knowing of its noxious qualities. The victim's consent to suffer harm of this nature could never relieve the defendant of his liability, or destroy the unlawfulness of the defendant's act.

Another important case when given this scenario is R v Kennedy; in this case the victim had died as a result of injecting himself with heroin. The defendant had prepared the "hit" of heroin and given the victim the syringe ready for injection. The issue for determination was when it was appropriate to find someone guilty of manslaughter where that person had been involved in the supply of a controlled drug which was then self administered by the person to whom it was supplied and caused his death. The defendant was found guilty of manslaughter but then appealed against his conviction. At the appeal case the judge ruled that it had been open to the jury to convict K of manslaughter. To convict, the jury had to be satisfied that when the heroin was handed to the deceased "for immediate injection", K and the deceased were both engaged in the one activity of administering the heroin. If the jury were satisfied of that, then the defendant was responsible for taking the action in concert with the deceased to enable the deceased to inject himself with the syringe of heroin that had been made ready for his immediate use. However, there was no need for the jury to find that the defendant had encouraged the deceased to inject himself with the heroin.

With all of these cases the test to see if the act that the defendant performed is “did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger”

Another type of involuntary manslaughter is that of gross negligence. This is when a person causes death through extreme carelessness or incompetence. In the case of R v Bateman it was held that gross negligence manslaughter involved the following elements:

1. The defendant owed a duty to the deceased to take care;
2. The defendant breached this duty;
3. The breach caused the death of the deceased; and
4. The defendant's negligence was gross, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment.

The defendants in such cases are often people carrying out jobs that require special skills or care, such as doctors, police or prison officers, or electricians, who fail to meet the standard which could be expected from a reasonable person of the same profession and cause death. A case where this can be explained is that of R v Adomako; the defendant was acting as an anaesthetist during an operation when a tube from the ventilator came free, causing the death of the patient. In cases involving manslaughter by breach of a duty of care the relevant questions are whether there existed a duty of care, whether there had been a breach of that duty, whether the breach had caused the death and, if so, whether the breach should be characterised as gross negligence and a crime. It is for a jury to decide whether the accused's acts were so bad that in all the circumstances they amounted to a crime. The judge held the decision and dismissed the defendants appeal saying that the question whether D's acts or omissions were so bad as to be criminal having regard to the risk of death involved was one for the jury and it was not appropriate to interfere with their decision.

Another important case when looking at grass negligence manslaughter is that of R v Misra & Srivastava; The appellants were doctors who had the post-operative care of the victim. The victim had had surgery to repair a tendon in the knee. He then developed an infection which the doctors failed to diagnose or treat. The infection caused the death of the victim; both doctors were charged with gross negligence manslaughter and convicted at the Crown Court. The two of them then appealed against their convictions but the judge upheld the decision saying that the offence had been clearly defined and the principles outlined in R v Bateman. As the two men were doctors they had a duty of care to the patient, they breached this duty by not diagnosing or treating the infection that developed, the infection consequently caused the death of the person and doctors go through 7 years of training so that they are qualified to look after people’s lives and be trusted by their patients so it should be seen that the negligence was gross.

With all of these cases it has been up to the jury to decide whether or not, based on each individual case, the defendants’ acts were both unlawful and dangerous. So depending on the circumstances of the scenario above, there could be many different outcomes to the case.