The first defendant, Kane, was charged with killing another by unlawfully supplying her, and injecting her with diamorphine, a Class A drug, resulting in her death. The facts were similar in the case of MacAngus, other than that the victim had administered the drug injection himself, and death had subsequently ensued. The drug in the latter scenario was Ketamine, a Class C substance. At issue before the High Court of Justiciary, sitting as the Court of Criminal Appeal in Scotland, was whether, where a controlled drug was supplied to another, who then administered it to himself causing his death, it was open to a jury to convict the supplier of culpable homicide. The House of Lords, in R v Kennedy (No. 2) [2007[ ] UKHL 38, [2007 4 All ER 1083, had recently declared that the appellate court had fallen into error imposing liability for unlawful act manslaughter against such a factual backdrop. D commits an unlawful act in supplying the heroin, but this in itself is not 'harmful' to V unless administration transpires. It is the administration which 'causes' death. The 'free and voluntary' self-administration by V, an act to which freedom of choice applies, insulates D from liability for unlawful act manslaughter. It is insufficient for liability within the purview of English and Welsh law that D 'facilitated or contributed' to the administration. In a sense D has merely provided the 'backdrop' for V's own act. It is only where D has 'administered' the drug that an unlawful act under s. 23 of the Offences Against the Person Act 1861 (maliciously administering or causing to be administered a noxious substance) is activated. It is not enough that D assists V, as in R v Rogers [2003] EWCA Crim 945, [2003] 1 WLR 1374, by holding the tourniquet around V's arm. The supply of a controlled drug, per se, is not dangerous, but the danger element is attached to the administration.HELD, REFUSING THE APPEALS, it was open to a jury to convict the supplier of a drug ingested by the victim, of culpable homicide. In this regard, contrary to the perspectives articulated by the House of Lords in Kennedy (No. 2), a deliberate decision by the victim of the reckless conduct to ingest the drug would not necessarily break the chain of causation. COMMENTARYA fascinating judicial chasm has opened in Anglo-Scottish law vis-à-vis inculpation of a drug supplier for manslaughter. Alternative pathways have been set out on the fundamental issue of apposite causation

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Criminal law developments, like fashions in clothes, are subject to perceptible trends. In recent times the Court of Appeal has focused upon the substantive offence of gross negligence manslaughter and the defined role of judge and jury. The Court of Appeal in R v Misra; Srivastava 1 has determined that the ingredients of the offence of manslaughter through gross negligence were sufficiently clearly defined and did not offend against the relevant provisions of the European Convention on Human Rights. A differently constituted court in R v Willoughby 2 had to grapple with the synergy between ex turpi causa and gross negligence manslaughter principles, in the context of the victim himself engaged in illegal activity causing death. The earlier precedent of R v Wacker 3 failed to resolve dilemmatic issues engaged in this connection. This commentary seeks to extrapolate the guiding principles that now govern this arena, and to chart a path for reform.

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