However, here is the point for a strong defence argument, as stated in the Journal of Criminal Law 2010[9], there are problems within the case of Evans[10] and these can be related to this matter. Within the article it is noted that two main problems occur with the charge of the defendant in the case, 'it is doubtful that there was a sufficient causal link between Evans's negligent omission and her sisters death' and 'merely facilitating another to create a dangerous situation for herself does not seem to be sufficient for imposing a duty of care' Upon review of this, can a victims own self injection of an administered drug break the chain of causation which is currently holding the defendant liable. It would be believed the answer to this would be yes, as based on the case of R v Kennedy[11] where the defendant had prepared a solution of heroin, filled a syringe and handed it to the victim; he then injected himself with the drug and died. The defendant was charged with the supply of Class A drugs and constructive manslaughter. The defendant appealed on two occasions and on the second appeal his conviction was quashed. The sitting judge held: It is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection. But nothing of the kind was the case here. As in R v Dalby and R v Dias the appellant supplied the drug to the deceased, who then had a choice, knowing the facts, whether to inject himself or not. The heroin was, as the certified question correctly recognises, self-administered, not jointly administered. The appellant did not administer the drug. Nor, for reasons already given, did the appellant cause the drug to be administered to or taken by the deceased. The answer to the certified question is: "In the case of a fully-informed and responsible adult, never".
What can be said and what has been established in previous cases is that people make their own choices and judgements, Flemming was a habitual drug user and it would be assumed she knew the consequences and dangers of having such a drug. Whilst the sound citizen would assume that Flemmng’s sister, and mother, would both encourage Flemming to stick with her drug plan and continue in recovery, this was not the case. Minds are altered significantly by drugs and it seems established addicts lose self-belief, values and morality as they look to find a fix. It is not known whether the defendant and the victim’s mother had themselves also been injecting drugs that night, and if so, how can it be established whether they were or not of 'sound mind' that they would realise the seriousness of what was happening to Flemming, how may it then be proved that Keeler had the relevant mens rea.
However, severe problems will arise for the defence when the issue is raised regarding the fact that the defendant witnessed the victim displaying all the relevant signs of an overdose, and when she did so, did not ring the alarm. .Further in Evans[12] , it was not only the victim’s sister who was charged as being grossly negligent but also the victim’s mother. This is vital, the defendant did not act alone when witnessing her sister deteriorate into overdose, surely a mother should also be held accountable for the outcome of their actions. Justice Lloyd Jones[13] when summing up stated that 'by law, a parent does owe its child a duty to act'. Following this, it should be advised that Keeler should not be tried alone on this case; it would appear from previous arguments that the mother holds more of a duty to act that a sibling. Upon questioning by the police, the defendant advised that she herself had experienced similar symptoms after the injection of heroin, she however was rescued by paramedics, therefore, it’s safe to assume she knew the terrible consequences of overdose, otherwise she would of also tried to 'sleep off' the effects. Knowing this, Keeler will be seen to have acted 'recklessly' by not getting help for the victim. Recklessness is explained as being 'somebody who takes unjustified risks'[14]. Keeler identified the risk of death when she first witnessed overdose signs, it seems she then, knowingly made a choice to ignore it. There have been many cases heard on Recklessness however it is hard to relate the outcomes in this context, the main case being R v Caldwell[15], although the facts relate to a property offence, the main area of recklessness is explained well by Lord Diplock[16] 'a person charged with a n offence under s 1 (1) of the CDA 1971 is 'reckless as to whether any such property would be destroyed or damaged' if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act either has not given any though to the possibility of there being any such risk involved and has nonetheless gone to do it'. In these terms, the defendant has first created the risk by giving the drugs, and she has then furthermore enhanced the risk when she doesn’t seek medical attention for Flemming. For a time, Caldwell Recklessness formed part of the test for Manslaughter, but since Lord Mackay's speech in the House of Lords in Adomako there must be some doubt as to whether recklessness is any longer an appropriate mens rea concept to apply n manslaughter cases.[17] Further on this point, in R v Stone and Dobinson[18] Geoffery Lane LJ described gross negligence as a form of recklessness, stating: 'What the crown has to prove is a breach of that duty in such circumstances that the jury feel convinced that the defendants conduct can properly be described as reckless. That is to say a reckless regard for danger to health and welfare of the infirm person'[19]. The point to highlight in that quotation is the word 'infirm' upon the first symptom of overdoes by the victim, she then became 'infirm' and reliant upon the defendant and her mother to intervene and assume the duty of care. Back to the point of recklessness, it’s believed that Keller has undoubtedly shown a reckless regard to the victims health. This is easily identified by her own statement to the police, if she herself needed medical care when suffering the same condition, why would she believe that her younger sibling would survive such harsh effects of a deadly drug. The idea of Recklessness in regard to Manslaughter is not an area that is like by everybody in law, while Lord Mackay LC in Adomko[20] advised it is 'perfectly appropriate' to use the work reckless in cases on involuntary manslaughter, there has been no talk of reform on the matter by Parliament and whether gross negligence manslaughter should be replaced with reckless manslaughter. Although the above facts show a strong argument and will be a good contribution to the prosecution of Keeler, they are not the defining features as to the charge of Gross Negligent Manslaughter in this case.
Another relevant point to touch upon is that of the 'but for' test, if Keeler undertook the duty of care from the moment she gave Flemming the drugs, then Keeler must accept that 'but for' giving the victim the drugs, the victim would not of overdosed and would not have died as a result. There is not a need to touch upon this subject any more than in brief, but it is worth taking a short insight into some of the relevant issues. The 'but for' test is described as 'a prohibited result which would not have happened, but for the act or omission of the defendant[21]. Upon sight of that statement, it can be said that Keeler participated in the 'act' of giving the drugs, but also failed in the 'omission' when she didn’t take action. The problem in proving the above however is that there can be seen to be a 'novus actus interveniens[22]' that breaks the chain of causation. Here the point re surfaces that at the point an individual takes hold of the drugs and themselves injects a substance, that then breaks the chain and they themselves become liable.
To summarise, the defendant Rita Keeler, should be held liable for Rachel Flemming’s death in conjunction with the previous legislation and decisions which have gone before. The relevant charge would be Gross Negligence Manslaughter by Omission, there is no doubt after review of the case and review of much literature that the defendant was under a duty to carry out an act to save her sister from overdose and subsequent death. The decision in Evans will bind this case and therefore give the judge, jury and prosecution the base of law to follow on this matter.
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[1]Death occurs as a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. Explanation taken from the Crown Prosecution Website discussing Homicide, Murder and Manslaughter. http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/#gross
[2]R V Adomako [1995] 1 A.C 171 HL (post, pp. 187B, D-E, 189G-190B)
[3] R v Adomako [1995] 1 A.C. 171 HL
[4]R V Miller
[5]Homicide Act [1957]
[6]R v Evans [2009] EWCA Crim 650
[7] R v Evans [2009] EWCA Crim 650
[8]Lord Chief Justice R v Evans [2009] EWCA Crim 650
[9]Dennis J Baker, 'Omission Liability for Homicide Offences: Reconciling R v Kennedy with R V Evans' Journal Of Criminal Law 2010 P6
[10] R V Evans [2009] EWCA Crim 650
[11]R V Kennedy [2007] 3 WLR 612 HL
[12]R v Evans [2009] EWCA Crim 650
[13]Justice Lloyd Jones hearing case R v Evans [2009] EWCA Crim 650
[14]Nicola Padfield, Criminal Law, (Core text series, 7th Edition, Oxford, 2010) 52
[15] R v Caldwell [1981] 1 ALL ER 961
[16]Lord Caldwell statement in Metropolitan Police Commissioner v Caldewell [1981]
[17]Nicola Padfield, Criminal Law, (Core text series, 7th Edition, Oxford, 2010) 52
[18]R v Stone and Dobinson [1977] QB 354
[19]Review by LJ Geoffrey Lane in the Case of R v Stone and Dobinson, Cases and Materials on Criminal Law 4th Edition Mike Molan
[20]R v Adomako [1995] 1 A.C. 171 HL
[21]R v Dalloway [1847] 2 Cox 273
[22] Jonathon Herring, Criminal Law (Text, Cases and Materials, Fifth Edition, Oxford University Press, 2012) p89
by
lbenn (student)
