Kennedy No 2

Critically evaluate the impact of the House of Lord’s decision in Kennedy (No.2) on the law relating to causation.

In criminal law, causation is one of the fundamental requirements for establishing criminal liability. However, establishing criminal liability on involuntary act (automatism) and those who did not cause the consequences of a crime seems injustice, especially when there is a novus actus interveniens and breaks the chain of causation. This essay will be discussing R v Kennedy (No2), which marks a turning point for imposing liability on death after drug administration and examine how the decision of the House of Lords impact on the law.

The general principle for causation is that an individual is only guilty of a crime if that individual’s conduct caused the harm prohibited by law. Causation could be proved on either factual or legal causation. The issue of factual causation can be established through the ‘but for’ test. According to Allen, for a causation to be material, it must be established that without the defendant’s conduct, the consequences would not have occurred. However, in some complicated circumstances where there is more than one cause, it is necessary to prove the legal causation. Ashworth indicated that to establish legal causation, the harm must be a result of a ‘culpable act’, although it does not have to be the only/main cause, it must be a ‘significant’ cause. However, the issue of causation becomes more confusing when there is a novus actus intervenien as in the case of Kennedy on drug administration cases.

In Kennedy, the accused prepared a syringe of heroin requested by the deceased. The deceased injected himself and returned the syringe to the accused who then left the room. The deceased later died from breathing problem. On the first appeal, the court dismissed the appeals on the fact that the accused had assisted and encouraged the deceased, thus the accused is a ‘secondary party’. However, according to Dias, Kennedy was...