Finlay, R. v [2003] EWCA Crim 3868

Case No 2002/1599/D3

[2003] EWCA Crim 3868

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Monday, 8 December 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE BUXTON

MR JUSTICE GOLDRING

MR JUSTICE MACKAY

Between

R E G I N ACrown

-v-

Between

PAUL ANTHONY FINLAY

Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

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MR D GIBSON-LEE appeared for APPELLANT

MR A MALCOLM appeared for CROWN

J U D G M E N T

LORD JUSTICE BUXTON:

This

[1]appellant, Mr Paul Anthony Finlay, faced two counts of manslaughter at a trial before His Honour Judge Broderick and a jury in the Crown Court at Winchester as long ago as February 2002. Both counts emanated from the same incident and it will be convenient to describe the incident in broad terms before we turn to the counts, the verdicts on them and the law.

[2]The deceased was a lady called Jasmine Grosvenor who had a serious history of drug and alcohol abuse. She died of an overdose of heroin. The appellant was by his own admission present when she took the fatal dose. The prosecution case was on two alternative bases: first, that the appellant had personally injected the deceased with the heroin, that is to say had himself operated the syringe; or alternatively, that the appellant had cooked and prepared the heroin, loaded the syringe and then handed it to the deceased who had injected herself. The defence said that the appellant had not personally injected the deceased. She had done it herself and he had not caused any taking of heroin on her part because, as the judge put it to the jury as the defence case, she was determined to take heroin regardless of anything that was said or done by him.

[3]The significance of those two different ways of putting the case was this. The allegation in both cases was of unlawful act manslaughter. The unlawful and dangerous act was said to be the offence under section 23 of the Offences Against the Person Act 1861:

"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 life."

It was accepted that if Mr Finlay had himself injected Miss Grosvenor with the heroin, as was alleged under count 1, then he would indeed have unlawfully and maliciously administered a noxious thing to that lady, and therefore would have committed the offence under section 23. However, it was the prosecution case at trial that, even if the appellant had not himself wielded the syringe, he would have committed an offence under section 23 if he had caused an administration of the heroin, even though he did not himself physically administer it. The importance of that way of putting the case will become apparent hereafter.

[4]It is necessary to say something in brief terms as to the background against which these counts were brought. The deceased's general practitioner gave evidence that she had an addictive personality and was addicted both to alcohol and to drugs. She had clearly had an extremely damaged and traumatic experience of life. She had been involved in a number of abusive relationships, had attempted suicide on several occasions and had given birth to no fewer than six children, all of whom had unfortunately had to be removed from her care. Other evidence suggested that this lady, although she took heroin as well as alcohol, did not know how to prepare heroin or to inject it: other people would inject her.

[5]On the day in question she (Miss Grosvenor) had said, according to one witness, that she wanted alcohol, but it had been suggested to her that she should in fact take heroin and she had been with the accused at the time of the death.

[6]Mr Finlay's evidence was that he was concerned on the day in question about the deceased's appearance and the fact that she appeared to have been attacked by somebody. He had injected another lady with heroin. The deceased said that she would like some and asked him to get it. She said that she preferred heroin to beer. He bought some heroin from his dealer and then they both went to her address where he prepared the heroin. He filled a syringe for himself and half a bag for the deceased, saying, as he claims, that it was her decision whether to take it or not. He said that she then injected herself. An hour or so after she asked for the other half-bag. He tried to persuade her not to but, as he put it, she badgered him. He filled a syringe for her, she took it out of his hand, injected herself, went into shock, and died. He agreed in cross-examination that he had asked the deceased whether she wanted the second half of the bag, but she had said that she was all right and could handle the matter. His account of the events was seriously challenged in cross-examination.

[7]There was an application at half time for count 2, that is to say the count upon which Mr Finlay was eventually convicted, to be withdrawn from the jury. We will come back to that shortly.

[8]The jury were given directions by the learned judge, which again we will come to, and duly retired, he having told them that they should start their consideration with count 1, that is what we might call direct injection, and only if they acquitted on that should they go on to count 2, which is the count alleging involvement, as we will call it for the moment, in injection.

[9]Things did not work out in that way because the jury returned to court and said that although they were not able to reach a verdict on count 1, they had reached a verdict on count 2; which, as we have seen, was a guilty verdict. The judge was concerned by that turn of events since it involved the jury approaching the matter in an order different from that which he had advised, indeed directed, them. However, he did in due course take that verdict and discharged them from a verdict on count 1.

[10]In his submissions to us Mr Gibson-Lee suggested that this course of events might imply that the jury did not properly understand the task they had in hand. That, we have to say, does not appear to have been the view of the learned judge and it does not, in our judgement, follow from what happened. It also, we are bound to note, is not a ground of appeal before us. The jury may very well have not been able to agree on the first question (that is to say, whether Mr Finlay himself did the injection) but were satisfied of his involvement in the events indicated in count 2. That, as it seems to us, is a possible view for a jury to take and in no way indicates that they did not understand the case.

[11]With that rather lengthy introduction we can now turn to the substance of the appeal. Effectively the only matter in issue was whether it was open to the judge to leave to the jury the possibility that there was a version of events that caused Mr Finlay to be guilty of an offence under section 23 of the 1861 Act even though he had not himself held the syringe. There is a history to that point, which has been the subject of a number of authorities in this court.

[12]In the first relevant case, R v Kennedy [1999] Crim.L.R 65, a situation very close to the present was before the court. The judge in our case pointed out in his observations on the submission of no case to answer that the facts of Kennedy were effectively indistinguishable from those in the present case and that Kennedy therefore was binding upon him. He did, however, express caution about one aspect of the judgment in that case. That was at the very end of the judgment where this court explained its conclusion that the appellant in that case might have been guilty of an offence under section 23 in those words:

"Perhaps more relevantly the injection of heroin into himself by [the deceased] was itself an unlawful act, and if the appellant assisted in and wilfully encouraged that unlawful conduct, he would himself be acting unlawfully."

That analysis was subject to severe criticism by the late Professor Sir John Smith in the note in the Criminal Law Review report. We would respectfully agree with that criticism. The reason is this: the court in Kennedy clearly proceeded upon the assumption that the person who supplied the syringe -- and we will call him in neutral terms "the helper" -- would have been guilty on the basis of being an accessory to an offence committed by the deceased. The reason why that analysis cannot be correct is that there is no offence of self-injection. By injecting himself Mr Bosque, the deceased in the Kennedy case, was not administering a noxious thing to another. Since no principal offence had been committed, it is black letter law of the blackest sort that there can be no offence of aiding and abetting. It was for that reason and that reason only that Kennedy was criticised.

[13]That criticism was adopted by this court in R v Dias

[2002] 2 Cr.App.R 5

, where the court accepted that there could be no offence of self-injection. However, this court recognised that there might be a different basis for a section 23 offence. At paragraph 25 the court specifically envisaged the possibility that there might be other ways in which an accused could be guilty, and they said this, and we emphasise this is only only an obiter observation but it is of importance:

"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."

And for that reason, lack of causal connection, it was held that the conviction was unsafe and would be quashed. It is perhaps also important to note that the court in Dias did envisage the possibility that mere supply of heroin might count as an unlawful act for the purposes of the law of unlawful act manslaughter, leaving aside the issue under section 23.

[14]That is how the matter stood at the time of the trial in this case. The judge had a difficult problem in assessing what the standing of the case of Kennedy, and what it taught as to the nature of unlawful act manslaughter in the context of section 23. After the judge's rulings, to which we will come back, this court had to return to the matter in the case of R v Rogers

[2003] 1 WLR 1374

, a constitution presided over by the Vice President, Rose LJ. That was a case where the victim had injected himself while the defendant held his belt around the victim's arm as a tourniquet. The victim died. The defendant was charged with one count under section 23 and one count of manslaughter, it clearly being laid that the unlawful act in respect of the manslaughter was a section 23 offence committed by the defendant Mr Rogers. The court accepted the criticisms that had been made by Sir John Smith of the reasoning in Kennedy, and drew attention also to the criticisms made by this court in Dias. This court said:

"[We] accept Sir John Smith's criticisms of the reasoning in R v Kennedy: in so far as that reasoning was based on self-injection being an unlawful act, it was wrong."

However, the court also identified that, whilst it was incorrect to say that in circumstances such as we are concerned with the helper could be found liable on the basis of aiding and abetting, that did not exclude the possibility that he could be found liable on the basis of joint principleship. That was clearly the issue before the court in Rogers. The court said earlier in paragraph 6:

"It was common ground between counsel that the crucial question at the heart of this appeal is whether the appellant's conduct was that of a principal: if so, he was guilty of both offences. If, on the other hand, his conduct was that of a secondary party, merely aiding the deceased, he could not be guilty of either offence, because no offence was committed by the deceased."

Rogers is thus clear authority for saying that if a "helper" is in fact a joint principal with the deceased, then he can be guilty of an offence under section 23 even though the deceased is not guilty of an offence by self-administration. That follows from the classic understanding of what is meant by joint principalship, as set out in the 10th Edition of Smith and Hogan at page 161. That work of authority says:

"A and B are joint principles where each does an act which is a cause of the actus reus; eg, each stabs P who dies from the combined effect of the wounds; or A and B together plant a bomb which goes off and kills P; but then each is liable for his own act, not because he has 'participated' in the acts of another; and each is liable to the extent of his own mens rea."

The learned authors finish the paragraph by saying:

"there are two principals and two offences"

. The test therefore is whether each of the parties has done an act which is a cause of the actus reus and it was that test that was applied by this court in Rogers. In paragraph 7 the court said this:

"... by applying and holding the tourniquet, the appellant was playing a part in the mechanics of the injection which caused death. It is therefore, as it seems to us, immaterial whether the deceased was committing a criminal offence. There is nothing in Dias which is inconsistent with this conclusion. Indeed, on the contrary, paragraph 25 of the judgment expressly envisages that, even where a victim injects himself, the supplier of the heroin may be guilty of manslaughter, provided causation is established. Edwards ... is to like effect. A fortiori, as it seems to us, a person who actively participates in the injection process commits the actus reus and can have no answer to an offence under section 23 or a charge of manslaughter if death results. Once the appellant is categorised as such a participant, it being common ground that death resulted from the injection, no question arises in relation to causation."

[15]The learned judge in his observations on the application to remove count 2 from the indictment seems to us, with great respect, strikingly to have anticipated the analysis that this court adopted in the case of R v Rogers. Having expressed caution about Kennedy, he went on at page 9F of his ruling:

"So it seems to me that subject to one further point, to which I will turn almost immediately, cooking up heroin, loading it into a syringe, and then giving the syringe to someone who is clearly going to inject themselves almost immediately, is capable of coming within the terms of section 23. Whether or not it does so in any given case is a question of fact which falls for the court to the jury and not the court to decide. The last remaining point in relation to section 23 is this. In order to establish limb two of their case, the prosecution would have to prove that the defendant caused the heroin to be administered to, or be taken by, the deceased. In my view it is not necessary for the Crown to prove that the defendant's actions were the sole cause of the deceased injecting heroin. Here, by cooking up, loading the syringe, and handing it to the deceased, the defendant produced a situation in which the deceased could inject and in which an injection by her into herself was entirely forseeable. It was not a situation in which injection could be regarded as something extraordinary. That being the case, it seems to me that on the authority of Environment Agency v Empress Car Company Limited [1999] 2 AC 22, that it would be open to the jury to conclude that the defendant's action caused heroin to be administered to, or to be taken by, the deceased. At the end of the day this is a question of fact for the jury to decide."

That clearly sets out the law as it was understood by this court in the case of R v Rogers. The test is one of causation. In this case, could it be said that the act of the deceased in taking up the syringe and using it on herself, which are to be assumed to be the facts, prevented Mr Finlay's previous acts being causative of the injection. The judge rightly referred to Environment Agency v Empress Car Company

[1999] 2 AC 22

. In that case Lord Hoffman said that the prosecution need not prove that the defendant did something which was the immediate cause of the death. When the prosecution had identified an act done by the defendant, the court had to decide, particularly when a necessary condition of the event complained of was the act of a third party, whether that act should be regarded as a matter of ordinary occurrence which would not negative the effect of the defendant's act; or something extraordinary, on the other hand which would leave open a finding that the defendant did not cause the criminal act or event. That, said Lord Hoffman, with the agreement of the rest of the House of Lords, was a question of fact and degree to which, in the case before him, the justices had to apply their common sense, as in a jury trial the jury has to apply its common sense. That was exactly the way in which the judge directed himself in his observations on the application that count 2 should be removed from the jury.

[16]And that is exactly how he directed the jury when he came to sum up. At page 14F he said this:

"Whether or not the defendant caused heroin to be administered to or taken by the deceased is a question of fact and degree which you have to decide, and you should decide it by applying your common sense and knowledge of the world to the facts that you find to be proved by the evidence. The prosecution do not have to show that what the defendant did or said was a sole cause of the injection of heroin into the deceased. Where the defendant has produced the situation in which there is the possibility for heroin to be administered to or taken by Jasmine Grosvenor, but the actual injection of heroin involves an act on part of another - in this case Jasmine herself - then if the injection of heroin is to be regarded in your view as a normal fact of life, in the situation proved by the evidence, then the act of the other person will not prevent the defendant's deeds or words being a cause, or one of the causes, of that injection. On the other hand, if in the situation proved by the evidence, injection is to be regarded as an extraordinary event, then it would be open to you to conclude that the defendant did not cause heroin to be administered to or taken by the deceased."

That was consistent with Rogers; it was also consistent with the direction of the House of Lords in the Empress Car case.

[17]Mr Gibson-Lee really advances two reasons why the judge should not have taken that view, and why he should have considered that count 2 should not have gone to the jury. The first is that on the assumption that it was the deceased who injected herself, that act of itself breaks the chain of causation between whatever it was that the accused did and the actual event of injection. That is a view that is also taken in a critical commentary on the decision in Rogers in in the Criminal Law Review. We have to say that that approach is not correct. It seeks to make the existence of what used to be called a novus actus interveniens, and can now more simply be regarded as an act of another person, as something that as a matter of law [emphasis added] breaks the chain of causation. It was that view or assumption that was rejected by the House of Lords in the Empress Car case. Intervening acts are only a factor to be taken into account by the jury in looking at all the circumstances, as the judge told them to do.

[18]Secondly, Mr Gibson-Lee says that in any event the facts of this case were such that it simply was not open to the jury to conclude that Mr Finlay had caused the injection. He had done no more than form part of the background, or provide the opportunity of which the deceased availed herself:- in other words, that the case was so extreme or so clear that it was not appropriate for the jury to look at it as a case of causation at all. The judge did not take that view, nor do we. The unhappy circumstances of this case, and in particular the unhappy circumstances of this lady's life and condition, in our view indicate that it was certainly open to a jury to conclude in Empress Car terms that in those circumstances, and we emphasise that, it was what Lord Hoffman described as an "ordinary" occurrence for the purpose of the law of causation that she should have taken advantage of whatever it was that Mr Finlay did towards her or with her. It is not necessary for that conclusion to decide, as Mr Gibson-Lee suggested it was, that she was incapable of knowing what she was doing or had ceased entirely to be a rational being. All that is necessary, in our judgement, is that the circumstances should be such that it could properly be said to fall within the ambit of possible and ordinary events that she will take the opportunity given her. We quite accept that, on facts different from these, there might be more difficulty in coming to that conclusion.

[19]Third, we do not accept the argument that Mr Gibson-Lee also put forward that Rogers was simply irrelevant to this case because Mr Finlay's acts were much further removed from the actual act of injection than was the act of Mr Rogers in applying the tourniquet. We of course accept that there was a difference on the facts, but the passage that we have read from Rose LJ indicates that he certainly did not think that the facts of Rogers were the only type of facts that could fulfil a case of joint principleship. It will be remembered in particular that in paragraph 8, having referred to mere supply in Dias being a possible case of liability, Rose LJ described the placing of the tourniquet and so on as a case a fortiori of a supply case.

[20]We are therefore satisfied that on the facts of this case it was open to the judge to leave count 2 to the jury. Having done that he directed them in terms that we consider to be impeccable, and which accurately foresaw the law set out in Rogers, which is the law which now governs this not altogether easy area of the law of homicide.

[21]For those reasons, therefore, we would dismiss this appeal.

[22]MR GIBSON-LEE: My Lord, the appellant is not here. He is a prolific letter writer. Could I just raise two matters of fact in your Lordship's judgment to stop him writing to me.

LORD JUSTICE BUXTON: By all means.

[24]MR GIBSON-LEE: The reference to Dias in the current edition of Archbold is page 96, not page 5.

LORD JUSTICE BUXTON: Yes, it is case 5, page 96.

[26]MR GIBSON-LEE: It was a mistake. More importantly your Lordship should know that although Dias had been decided when this case was heard at Winchester, it had not reached the reports and nobody had it and so in fairness to Judge Broderick he anticipated it without actually having it.

LORD JUSTICE BUXTON: He seems to have done rather well in that case.

[28]MR GIBSON-LEE: I am not criticising.

LORD JUSTICE BUXTON: He seems to have anticipatedDias. Thank you for mentioning that.

[30]MR GIBSON-LEE: There is one other matter I am afraid I do have to raise. He has specifically asked me to ask you to certify a point of law of public importance.

LORD JUSTICE BUXTON: Well, unless you produce a question --

[32]MR GIBSON-LEE: The question is, the point I would ask is that where you do no more than supply can this offence be committed?

LORD JUSTICE BUXTON: No, Mr Gibson-Lee, but we are grateful for you for putting it in the way you did. Thank you very much for your assistance and thank you for coming.