Farmer, L.

English

Enlighten

       Farmer, L. (2009) "Practical, but nonetheless principled"? MacAngus and Kane. Edinburgh Law Review, 13 (3). pp. 502-507. ISSN 1364-9809  http://eprints.gla.ac.uk/37844/  Deposited on: 03 April 2012   Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk 502 the edinburgh law review Vol 13 2009D. CONCLUSIONIt has been argued that at least some psychopaths seem to suffer cognitivedeficiencies that ought to excuse them completely from responsibility. This raisesthe following important question: if dangerous psychopaths were to be consideredinappropriate candidates for punishment, how could society be protected fromtheir destructive behaviour? One possibility would be detaining such psychopathsin mental hospitals32 until they were no longer dangerous.33 This solution iscontroversial since conventional treatments (including those aimed at increasingpatients’ empathy for their victims) have failed to improve psychopaths’ behaviour.34Indeed, such treatments may even make psychopaths more dangerous.35 However,Robert Hare has argued that “rather than being discouraged we should mounta concerted effort to develop innovative procedures designed specifically forpsychopath[s]”.36 It seems that programmes aimed at channelling psychopaths’impulses into non-destructive activities may prove more successful than attempts tobring about a fundamental change in personality.37Elizabeth ShawEdinLR Vol 13 pp 502-507DOI: 10.3366/E1364980909000651“Practical, but nonetheless principled”? MacAngusand KaneThe Scots law of criminal homicide has been in a state of considerable flux since thedecision in Drury v HM Advocate.1 In a number of cases the appeal court has hadis instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’sability to determine or control the conduct for which the person would otherwise be convicted ofmurder was, at the time of the conduct, substantially impaired by reason of abnormality of mind”.32 Under ss 57, 57A and 59 of the Criminal Procedure (Scotland) Act 1995 an accused person acquittedon the basis of insanity can be detained indefinitely in a mental hospital. (Schedule 5 of the Bill willamend the 1995 Act by replacing the term “insanity” with terms such as “not criminally responsible”.)33 It is often difficult to be certain whether someone is no longer dangerous. This problem is discussed bye.g. N Walker, “Dangerousness and mental disorder”, in P Griffiths (ed), Philosophy, Psychology andPsychiatry (1994) 179.34 However, article 5(1)(e) of the European Convention on Human Rights permits lawful detention ofpersons of “unsound mind” in a mental hospital, even if their condition is not amenable to treatment.See Reid v United Kingdom (2003) 37 EHRR 9 (which involved an applicant with psychopathy).35 See e.g. M Seto and H Barbaree, “Psychopathy, treatment behaviour, and sex offender recidivism”(1999) 14 Journal of Interpersonal Violence 1235.36 R Hare, “Psychopathy and risk for recidivism and violence”, in N S Gray, J M Laing and L Noaks (eds),Criminal Justice, Mental Health and the Politics of Risk (2002) 27 at 46.37 S Wong and R Hare, Guidelines for a Psychopathy Treatment Program (2005).1 2001 SLT 1013.Vol 13 2009 analysis 503to struggle with issues which have an impact on the scope of the crimes of murderand culpable homicide and on the structure of homicide more generally.2 The latestdecision to raise such issues is MacAngus v HM Advocate; Kane v HM Advocate,3where the court considered jointly two separate cases, in each of which the accusedhad been charged with culpable homicide by the supply of drugs.A. THE FACTSIn the first case, Kevin MacAngus was charged with the unlawful supply of ketamineto a group of five friends, as a consequence of which one of them died. The five hadvisited MacAngus at his flat in Glasgow and given him money to buy the drug. On hisreturn to the flat, some of the group, including MacAngus himself, nasally ingestedthe drug. The deceased man was found in the flat the following morning, havingdied from ketamine intoxication, possibly as the result of repeated snorting. Forensicanalysis established that he had ingested ketamine on previous occasions.The facts in the second case were slightly different. Michael Kane, a heroinuser, had been drinking with the deceased, Sheila MacMillan, and her partner,William Smillie, at their home. The deceased and Smillie expressed an interest intrying heroin, and gave money to Kane to purchase the drug. Kane then preparedthe drug for injection, and injected first the deceased and then Smillie, with theirconsent, when they were unable to do so on their own. Both subsequently passed out.MacMillan had died by the time paramedics arrived, and Smillie was close to death.Kane was later charged with unlawful supply and injection of heroin as a consequenceof which MacMillan died.Both appellants raised pleas as to the relevancy of the indictments with respectto the charge of culpable homicide. The specific question raised was whether theapproach to cases involving death following the supply of drugs adopted in LordAdvocate’s Reference (No 1 of 1994)4 was correct in the light of the House of Lordsdecision in R v Kennedy (No 2).5 Although the decision in Kennedy had turnedon the interpretation of section 23 of the Offences Against the Person Act 1861(administration of a noxious thing to any other person),6 the House of Lords hadstressed the general principle that the freely chosen actions of autonomous individualsshould normally be regarded as breaking the chain of causation.Notwithstanding minor factual differences between the two cases in the appeal(the second involved administration rather than supply alone), the challenges to theplea to the relevancy fell under two broad heads.7 First, it was argued that, even incases of unlawful act homicide such as this, it was necessary for the Crown to establishthat there had been recklessness on the part of the accused. More specifically, it was2 See also Transco plc v HM Advocate 2004 JC 29; HM Advocate v Purcell 2008 JC 131.3 [2009] HCJAC 8, 2009 SLT 137. The opinion of the court was delivered by Lord Justice GeneralHamilton.4 1996 JC 76.5 [2007] UKHL 38, [2008] 1 AC 269.6 Which does not apply to Scotland: see s 78 of the 1861 Act.7 MacAngus and Kane at paras 8-17.504 the edinburgh law review Vol 13 2009asserted that the Crown should have to both libel and prove recklessness and that,contrary to the statement of Lord Justice-Clerk Ross in Lord Advocate’s Reference(No 1 of 1994), the supply of a controlled drug could not be treated as “the equivalent”of reckless conduct.8 Secondly, it was claimed that the ingestion of the drugs was anautonomous act on the part of the victim and, as such, broke the chain of causation.This, it was argued, was so even in the case of Kane, who had administered thedrugs to the deceased, because the deceased “was a consenting adult of sound mind,who made the decision about how the drugs were to be administered to her withoutsuggestion, persuasion or instigation by the accused”.9B. THE DECISIONIn rejecting the appeals, court addressed each of these heads. Dealing first with thescope and requirements of unlawful act culpable homicide, the court was concernedto address the “perception in the profession”10 that, following Lord Advocate’sReference (No 1 of 1994), the commission of an unlawful act causing death, butunattended by recklessness, could amount to culpable homicide. Here the view ofthe court was that unlawful conduct on its own, without the averment of somethingmore, such as any relevant knowledge on the part of the accused, would not be asufficient basis for a charge of culpable homicide.11 The court concluded that therelevant authorities held the conduct must be in some way “directed against” thevictim, unless the contravention was reckless.12 More specifically, it was held thatthe supply or administration of controlled drugs cannot be regarded as an offenceagainst the person supplied without further proof that the supply or administrationwas reckless in the circumstances.13 In addition, the court held that in cases such asthis it is not enough for the Crown to rely on the rule in the Criminal Procedure(Scotland) Act 199514 to the effect that terms such as “culpably and recklessly” mightbe read into an indictment. The Crown, it was held, should make its position clear inexpress terms.15On the issue of causation, the court expressed a certain reluctance to follow theposition adopted by the House of Lords in Kennedy (No 2), maintaining that this wasnot consistent with the approach adopted by the Scottish courts. This position wassaid to be supported by two distinct lines of authority. First, drawing on the decision8 Lord Advocate’s Reference at 81. See also Lord Hamilton in Transco at para 36, referring to a “state ofmind on the part of the accused which is ‘wicked’. . . or is equivalent, to a complete indifference to theconsequences of his conduct” (emphasis added). On the narrow point of the wording of the indictment,the advocate-depute in MacAngus and Kane successfully moved to amend the charges against eachaccused to include the word “recklessly”: see para 18.9 MacAngus and Kane at para 17.10 Para 23. See also paras 9-10.11 Para 26.12 Para 29, citing the unreported case ofHMAdvocate v Finnegan (High Court of Justiciary, March 1958).On the requirement that conduct should be directed at the victim, see R v Dalby [1982] 1 WLR 425.13 Para 30.14 Sch 3 para 3.15 MacAngus and Kane at para 31.Vol 13 2009 analysis 505in Khaliq v HM Advocate,16 and the review of authorities undertaken there by LordJustice-General Emslie, it was held that, depending on the circumstances of the case,supply could be regarded as equivalent to administration and thus could be taken as acause of injury or harm. Secondly, the court discussed cases where it has been held theact of the victim could leave the legal chain of causation unbroken, a line of authorityculminating in the recent case of McDonald v HM Advocate.17 In McDonald theappeal court approved the directions of the trial judge that set out a three-stage testfor causation: first, “but for” the assault would the victim have died?; secondly, wasthe cause direct or indirect?; and thirdly, if the victim acted in a wholly unforeseeableor unreasonable way, that would break the causal link and make the attack an indirectcause of death. The crucial issue was less the foreseeability of the outcome, whichwas not relevant to the measure of directness, than the foreseeability of the actions ofthe victim. Thus, the Scottish position, it was held, was that the actions of victims donot necessarily break the chain of causation:18what was required is a judgement (essentially one of fact) as to whether, in the wholecircumstances, including the inter-personal relations of the victim and the accused and thelatter’s conduct, that conduct [i.e. the actions of the accused] can be said to be an immediatecause of death.On this basis the pleas were held to be relevant and the cases remitted for trial.C. DISCUSSION: PRINCIPLED PRACTICE?To the extent that the decision represents a qualification of the very broad formof liability established in the Lord Advocate’s Reference (No 1 of 1994) it is to bewelcomed –whether or not this broad position was a matter of perception or reality.19However, the extent of this welcome depends on precisely what it is that is to betaking its place. Here, notwithstanding that the judgment in MacAngus and Kane isa lucid discussion of authorities, and is informed by reference to cases from otherjurisdictions and to academic commentary, it is difficult to determine what exactlythe position now is in Scots law and to what extent principle and the practical havebeen reconciled, as claimed by the court.20Although it is now clear that it is not any unlawful act that can provide the basisfor a charge of culpable homicide, the further remark by the court that the supply of16 1984 JC 23.17 2007 SCCR 10 at para 11.18 MacAngus and Kane at para 42.19 And those who had been prosecuted for culpable homicide caused by the supply of drugs wouldalmost certainly be inclined to see it as more than a perception. See e.g. HM Advocate v LC[2007] HCJ 10. See also various cases reported on BBC News Online, 29 Aug 2006, 18 Oct 2006and 7 Apr 2009 (available at http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/5296158.stm,http://news.bbc.co.uk/1/hi/scotland/highlands_and_islands/6062720.stm and http://news.bbc.co.uk/1/hi/scotland/tayside_and_central/7987662.stm).20 SeeMacAngus andKane at para 48 where it is argued that Scots law follows a “practical, but nonethelessprincipled, approach”. See also paras 43-44, discussing T H Jones, “Causation, homicide and the supplyof drugs” (2006) 26 LS 139.506 the edinburgh law review Vol 13 2009drugs can nonetheless provide a basis for the charge where it was reckless in thecircumstances may leave the law in a position that is practically indistinguishablefrom the Lord Advocate’s Reference (No 1 of 1994). While this seems to leaveopen the possibility that there may not be responsibility where an adult person actsvoluntarily,21 it is hard to envisage a situation where the supply of class A drugswould not be considered as reckless.22 These cases involve situations where it is notjust the supply of drugs that is at issue but their use in dangerous quantities – andwhich quantities of lethal drugs are not? – frequently in circumstances where both thesupplier and the victim are already intoxicated in one way or another. This strictnessof the test can be reinforced by a reading of the remarks of the court on the issue ofrecklessness:23[T]he law can with justification more readily treat the reckless, as against the merelyunlawful, actor as responsible for the consequences of his actions, including consequencesin the form of actings by those to whom he directs such recklessness.This allows for the penalising of all reckless conduct irrespective of the actions ofvictims.I would make three further comments. First, the ruling that in cases such as thisthe Crown must expressly include in the indictment, and so offer to prove, the mensrea terms that are the basis of the case is a welcome development. This is so bothbecause, as counsel for Kane pointed out, their omission raises issues of compatibilitywith article 6 of the European Convention on Human Rights, but also because it maylead to some necessary clarification as to the meaning of terms such as “culpable” and“reckless”.Secondly, the position adopted by the court on reckless acts as the basis for a chargeof culpable homicide has clear implications for the structure of the law of culpablehomicide. It is not clear that this leaves worthwhile grounds for distinguishingbetween lawful and unlawful act culpable homicide. It is hard to envisage an unlawfulact “directed against” a victim that is not also reckless. Equally, as Gordon haspointed out, the test of gross negligence in lawful act culpable homicide is practicallyindistinguishable from a test of recklessness.24 It may be that we are coming tothe point that constructive liability for culpable homicide can finally be abandonedand that we can discard the unhelpful distinctions between lawful and unlawful actculpable homicide, and the further subdivisions between death caused by assault andother unlawful acts in favour of a single category of reckless culpable homicide.Third, the decision of Kennedy is perhaps less far-reaching than might appear fromthe discussion of the case in the appeal court. It should not be read as holding thatany act of the victim will break the chain of causation, but only an autonomous act,21 See para 48.22 See e.g. the recent case of Richard Sedgwick (after MacAngus and Kane) where a conviction forculpable homicide was obtained: “Fatal heroin injection man jailed”, BBC News Online 9 Jun 2009(available at http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/8092011.stm).23 Para 45.24 G H Gordon, The Criminal Law of Scotland, 3rd edn by M G A Christie, vol 2 (2001) para 26.12.Vol 13 2009 analysis 507that is to say one which is fully informed and voluntary – a position which leavesconsiderable scope for interpretation. That said, the principle of causation, and itsbasis, have been clearly set out by the House of Lords and they have the potentialto exclude liability in certain cases. But what is the “principle” of causation defendedby the appeal court? If it is not respect for autonomy, neither does it seem to be adefence of a more limited position where an act of informed consent might breakthe causal chain. Administration, it seems, will not break the chain of causation, andsupply for immediate consumption will be treated as equivalent to administration – ifnot also reckless in the circumstances.25 Causation, it appears, is not really playingany effective role here, as everything will in practice be based on the judgment ofrecklessness. This is unquestionably a practical approach, but it is hard to see whatremains of the principles of causation.Lindsay FarmerUniversity of GlasgowEdinLR Vol 13 pp 507-511DOI: 10.3366/E1364980909000663Unincorporated Associations Reform“All our law is about persons, things and actions. Let us first consider persons”. FromGaius,1 through Justinian,2 to the Scotland Act 1998,3 the tripartite distinction ofprivate law has had an enduring influence. Yet it is a curious fact that the first pillar ofthe Gaian scheme has, in Scotland, with the important exception of child and familylaw, been all but ignored. It is not taught at university. There is no book on the subject.And outside academia the law of persons is perhaps not even widely recognised asa subject. In daily practice, however, there are a myriad of problems. The law ofpersons might be broken down into various sub-categories: persons and non-persons;natural persons and legal persons; persons and patrimonies. It is in the law of personsthat concepts on legal personality and legal capacity need to be studied. The law ofpersons, though core, is too often ignored.The law of clubs and unincorporated associations may be regarded as fallingwithin what Rudolf von Jhering termed Die Jurisprudenz des täglichen Lebens (Lawin Daily Life).4 If the law of unincorporated associations does not sound like a25 MacAngus and Kane at paras 50-51.1 Gaius, Inst. 1. 8: omnia autem ius quo utimur vel ad personas pertinet vel ad res vel ad actiones. [sed]prius videamus de personis.2 Justinian, Inst 1.2.12 is taken from Gaius.3 Scotland Act 1998 s 126(4).4 Cf A I Phillips, “Rating relief: miscellaneous organisations and associations” (1958) 1 ConveyancingReview 80: “The majority of solicitors represent one or more among the hundreds of clubs and non-commercial organisations whose objects exclude profit-making or use it only as a means to an end;

20 SeeMacAngusandKaneatpara48whereitisarguedthatScotslawfollowsa“practical,butnonetheless principled, approach”. See also paras 43-44, discussing T H Jones, “Causation, homicide and the supply of drugs” (2006) 26 LS 139.506 the edinburgh law review Vol

29, citing the unreported case of HM Advocate v Finnegan (High Court of Justiciary,

4 Cf A I Phillips, “Rating relief: miscellaneous organisations and associations”

And those who had been prosecuted for culpable homicide caused by the supply of drugs would almost certainly be inclined to see it as more than a perception. See e.g.

On the requirement that conduct should be directed at the victim, see RvD a l b

SCCR 10 at para 11. 18 MacAngus and Kane at para 42.

The Criminal Law of Scotland, 3rd edn by

the recent case of Richard Sedgwick (after MacAngus and Kane) where a conviction for culpable homicide was obtained: “Fatal heroin injection man jailed”,

the supply of acontrolled drug could not be treatedas “theequivalent” of reckless conduct.8 Secondly, it was claimed that the ingestion of the drugs was an autonomous act on the part of the victim and, as such, broke the chain of causation.

"Practical, but nonetheless principled"? MacAngus and Kane

Enlighten: Publications

 
 
 
 
 
 
 
Farmer, L. (2009) "Practical, but nonetheless principled"? MacAngus 
and Kane. Edinburgh Law Review, 13 (3). pp. 502-507. ISSN 1364-9809 
 
http://eprints.gla.ac.uk/37844/ 
 
Deposited on: 03 April 2012 
 
 
Enlighten – Research publications by members of the University of Glasgow 
http://eprints.gla.ac.uk 
502 the edinburgh law review Vol 13 2009
D. CONCLUSION
It has been argued that at least some psychopaths seem to suffer cognitive
deficiencies that ought to excuse them completely from responsibility. This raises
the following important question: if dangerous psychopaths were to be considered
inappropriate candidates for punishment, how could society be protected from
their destructive behaviour? One possibility would be detaining such psychopaths
in mental hospitals32 until they were no longer dangerous.33 This solution is
controversial since conventional treatments (including those aimed at increasing
patients’ empathy for their victims) have failed to improve psychopaths’ behaviour.34
Indeed, such treatments may even make psychopaths more dangerous.35 However,
Robert Hare has argued that “rather than being discouraged we should mount
a concerted effort to develop innovative procedures designed specifically for
psychopath[s]”.36 It seems that programmes aimed at channelling psychopaths’
impulses into non-destructive activities may prove more successful than attempts to
bring about a fundamental change in personality.37
Elizabeth Shaw
EdinLR Vol 13 pp 502-507
DOI: 10.3366/E1364980909000651
“Practical, but nonetheless principled”? MacAngus
and Kane
The Scots law of criminal homicide has been in a state of considerable flux since the
decision in Drury v HM Advocate.1 In a number of cases the appeal court has had
is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s
ability to determine or control the conduct for which the person would otherwise be convicted of
murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind”.
32 Under ss 57, 57A and 59 of the Criminal Procedure (Scotland) Act 1995 an accused person acquitted
on the basis of insanity can be detained indefinitely in a mental hospital. (Schedule 5 of the Bill will
amend the 1995 Act by replacing the term “insanity” with terms such as “not criminally responsible”.)
33 It is often difficult to be certain whether someone is no longer dangerous. This problem is discussed by
e.g. N Walker, “Dangerousness and mental disorder”, in P Griffiths (ed), Philosophy, Psychology and
Psychiatry (1994) 179.
34 However, article 5(1)(e) of the European Convention on Human Rights permits lawful detention of
persons of “unsound mind” in a mental hospital, even if their condition is not amenable to treatment.
See Reid v United Kingdom (2003) 37 EHRR 9 (which involved an applicant with psychopathy).
35 See e.g. M Seto and H Barbaree, “Psychopathy, treatment behaviour, and sex offender recidivism”
(1999) 14 Journal of Interpersonal Violence 1235.
36 R Hare, “Psychopathy and risk for recidivism and violence”, in N S Gray, J M Laing and L Noaks (eds),
Criminal Justice, Mental Health and the Politics of Risk (2002) 27 at 46.
37 S Wong and R Hare, Guidelines for a Psychopathy Treatment Program (2005).
1 2001 SLT 1013.
Vol 13 2009 analysis 503
to struggle with issues which have an impact on the scope of the crimes of murder
and culpable homicide and on the structure of homicide more generally.2 The latest
decision to raise such issues is MacAngus v HM Advocate; Kane v HM Advocate,3
where the court considered jointly two separate cases, in each of which the accused
had been charged with culpable homicide by the supply of drugs.
A. THE FACTS
In the first case, Kevin MacAngus was charged with the unlawful supply of ketamine
to a group of five friends, as a consequence of which one of them died. The five had
visited MacAngus at his flat in Glasgow and given him money to buy the drug. On his
return to the flat, some of the group, including MacAngus himself, nasally ingested
the drug. The deceased man was found in the flat the following morning, having
died from ketamine intoxication, possibly as the result of repeated snorting. Forensic
analysis established that he had ingested ketamine on previous occasions.
The facts in the second case were slightly different. Michael Kane, a heroin
user, had been drinking with the deceased, Sheila MacMillan, and her partner,
William Smillie, at their home. The deceased and Smillie expressed an interest in
trying heroin, and gave money to Kane to purchase the drug. Kane then prepared
the drug for injection, and injected first the deceased and then Smillie, with their
consent, when they were unable to do so on their own. Both subsequently passed out.
MacMillan had died by the time paramedics arrived, and Smillie was close to death.
Kane was later charged with unlawful supply and injection of heroin as a consequence
of which MacMillan died.
Both appellants raised pleas as to the relevancy of the indictments with respect
to the charge of culpable homicide. The specific question raised was whether the
approach to cases involving death following the supply of drugs adopted in Lord
Advocate’s Reference (No 1 of 1994)4 was correct in the light of the House of Lords
decision in R v Kennedy (No 2).5 Although the decision in Kennedy had turned
on the interpretation of section 23 of the Offences Against the Person Act 1861
(administration of a noxious thing to any other person),6 the House of Lords had
stressed the general principle that the freely chosen actions of autonomous individuals
should normally be regarded as breaking the chain of causation.
Notwithstanding minor factual differences between the two cases in the appeal
(the second involved administration rather than supply alone), the challenges to the
plea to the relevancy fell under two broad heads.7 First, it was argued that, even in
cases of unlawful act homicide such as this, it was necessary for the Crown to establish
that there had been recklessness on the part of the accused. More specifically, it was
2 See also Transco plc v HM Advocate 2004 JC 29; HM Advocate v Purcell 2008 JC 131.
3 [2009] HCJAC 8, 2009 SLT 137. The opinion of the court was delivered by Lord Justice General
Hamilton.
4 1996 JC 76.
5 [2007] UKHL 38, [2008] 1 AC 269.
6 Which does not apply to Scotland: see s 78 of the 1861 Act.
7 MacAngus and Kane at paras 8-17.
504 the edinburgh law review Vol 13 2009
asserted that the Crown should have to both libel and prove recklessness and that,
contrary to the statement of Lord Justice-Clerk Ross in Lord Advocate’s Reference
(No 1 of 1994), the supply of a controlled drug could not be treated as “the equivalent”
of reckless conduct.8 Secondly, it was claimed that the ingestion of the drugs was an
autonomous act on the part of the victim and, as such, broke the chain of causation.
This, it was argued, was so even in the case of Kane, who had administered the
drugs to the deceased, because the deceased “was a consenting adult of sound mind,
who made the decision about how the drugs were to be administered to her without
suggestion, persuasion or instigation by the accused”.9
B. THE DECISION
In rejecting the appeals, court addressed each of these heads. Dealing first with the
scope and requirements of unlawful act culpable homicide, the court was concerned
to address the “perception in the profession”10 that, following Lord Advocate’s
Reference (No 1 of 1994), the commission of an unlawful act causing death, but
unattended by recklessness, could amount to culpable homicide. Here the view of
the court was that unlawful conduct on its own, without the averment of something
more, such as any relevant knowledge on the part of the accused, would not be a
sufficient basis for a charge of culpable homicide.11 The court concluded that the
relevant authorities held the conduct must be in some way “directed against” the
victim, unless the contravention was reckless.12 More specifically, it was held that
the supply or administration of controlled drugs cannot be regarded as an offence
against the person supplied without further proof that the supply or administration
was reckless in the circumstances.13 In addition, the court held that in cases such as
this it is not enough for the Crown to rely on the rule in the Criminal Procedure
(Scotland) Act 199514 to the effect that terms such as “culpably and recklessly” might
be read into an indictment. The Crown, it was held, should make its position clear in
express terms.15
On the issue of causation, the court expressed a certain reluctance to follow the
position adopted by the House of Lords in Kennedy (No 2), maintaining that this was
not consistent with the approach adopted by the Scottish courts. This position was
said to be supported by two distinct lines of authority. First, drawing on the decision
8 Lord Advocate’s Reference at 81. See also Lord Hamilton in Transco at para 36, referring to a “state of
mind on the part of the accused which is ‘wicked’. . . or is equivalent, to a complete indifference to the
consequences of his conduct” (emphasis added). On the narrow point of the wording of the indictment,
the advocate-depute in MacAngus and Kane successfully moved to amend the charges against each
accused to include the word “recklessly”: see para 18.
9 MacAngus and Kane at para 17.
10 Para 23. See also paras 9-10.
11 Para 26.
12 Para 29, citing the unreported case ofHMAdvocate v Finnegan (High Court of Justiciary, March 1958).
On the requirement that conduct should be directed at the victim, see R v Dalby [1982] 1 WLR 425.
13 Para 30.
14 Sch 3 para 3.
15 MacAngus and Kane at para 31.
Vol 13 2009 analysis 505
in Khaliq v HM Advocate,16 and the review of authorities undertaken there by Lord
Justice-General Emslie, it was held that, depending on the circumstances of the case,
supply could be regarded as equivalent to administration and thus could be taken as a
cause of injury or harm. Secondly, the court discussed cases where it has been held the
act of the victim could leave the legal chain of causation unbroken, a line of authority
culminating in the recent case of McDonald v HM Advocate.17 In McDonald the
appeal court approved the directions of the trial judge that set out a three-stage test
for causation: first, “but for” the assault would the victim have died?; secondly, was
the cause direct or indirect?; and thirdly, if the victim acted in a wholly unforeseeable
or unreasonable way, that would break the causal link and make the attack an indirect
cause of death. The crucial issue was less the foreseeability of the outcome, which
was not relevant to the measure of directness, than the foreseeability of the actions of
the victim. Thus, the Scottish position, it was held, was that the actions of victims do
not necessarily break the chain of causation:18
what was required is a judgement (essentially one of fact) as to whether, in the whole
circumstances, including the inter-personal relations of the victim and the accused and the
latter’s conduct, that conduct [i.e. the actions of the accused] can be said to be an immediate
cause of death.
On this basis the pleas were held to be relevant and the cases remitted for trial.
C. DISCUSSION: PRINCIPLED PRACTICE?
To the extent that the decision represents a qualification of the very broad form
of liability established in the Lord Advocate’s Reference (No 1 of 1994) it is to be
welcomed –whether or not this broad position was a matter of perception or reality.19
However, the extent of this welcome depends on precisely what it is that is to be
taking its place. Here, notwithstanding that the judgment in MacAngus and Kane is
a lucid discussion of authorities, and is informed by reference to cases from other
jurisdictions and to academic commentary, it is difficult to determine what exactly
the position now is in Scots law and to what extent principle and the practical have
been reconciled, as claimed by the court.20
Although it is now clear that it is not any unlawful act that can provide the basis
for a charge of culpable homicide, the further remark by the court that the supply of
16 1984 JC 23.
17 2007 SCCR 10 at para 11.
18 MacAngus and Kane at para 42.
19 And those who had been prosecuted for culpable homicide caused by the supply of drugs would
almost certainly be inclined to see it as more than a perception. See e.g. HM Advocate v LC
[2007] HCJ 10. See also various cases reported on BBC News Online, 29 Aug 2006, 18 Oct 2006
and 7 Apr 2009 (available at http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/5296158.stm,
http://news.bbc.co.uk/1/hi/scotland/highlands_and_islands/6062720.stm and http://news.bbc.co.uk/1/
hi/scotland/tayside_and_central/7987662.stm).
20 SeeMacAngus andKane at para 48 where it is argued that Scots law follows a “practical, but nonetheless
principled, approach”. See also paras 43-44, discussing T H Jones, “Causation, homicide and the supply
of drugs” (2006) 26 LS 139.
506 the edinburgh law review Vol 13 2009
drugs can nonetheless provide a basis for the charge where it was reckless in the
circumstances may leave the law in a position that is practically indistinguishable
from the Lord Advocate’s Reference (No 1 of 1994). While this seems to leave
open the possibility that there may not be responsibility where an adult person acts
voluntarily,21 it is hard to envisage a situation where the supply of class A drugs
would not be considered as reckless.22 These cases involve situations where it is not
just the supply of drugs that is at issue but their use in dangerous quantities – and
which quantities of lethal drugs are not? – frequently in circumstances where both the
supplier and the victim are already intoxicated in one way or another. This strictness
of the test can be reinforced by a reading of the remarks of the court on the issue of
recklessness:23
[T]he law can with justification more readily treat the reckless, as against the merely
unlawful, actor as responsible for the consequences of his actions, including consequences
in the form of actings by those to whom he directs such recklessness.
This allows for the penalising of all reckless conduct irrespective of the actions of
victims.
I would make three further comments. First, the ruling that in cases such as this
the Crown must expressly include in the indictment, and so offer to prove, the mens
rea terms that are the basis of the case is a welcome development. This is so both
because, as counsel for Kane pointed out, their omission raises issues of compatibility
with article 6 of the European Convention on Human Rights, but also because it may
lead to some necessary clarification as to the meaning of terms such as “culpable” and
“reckless”.
Secondly, the position adopted by the court on reckless acts as the basis for a charge
of culpable homicide has clear implications for the structure of the law of culpable
homicide. It is not clear that this leaves worthwhile grounds for distinguishing
between lawful and unlawful act culpable homicide. It is hard to envisage an unlawful
act “directed against” a victim that is not also reckless. Equally, as Gordon has
pointed out, the test of gross negligence in lawful act culpable homicide is practically
indistinguishable from a test of recklessness.24 It may be that we are coming to
the point that constructive liability for culpable homicide can finally be abandoned
and that we can discard the unhelpful distinctions between lawful and unlawful act
culpable homicide, and the further subdivisions between death caused by assault and
other unlawful acts in favour of a single category of reckless culpable homicide.
Third, the decision of Kennedy is perhaps less far-reaching than might appear from
the discussion of the case in the appeal court. It should not be read as holding that
any act of the victim will break the chain of causation, but only an autonomous act,
21 See para 48.
22 See e.g. the recent case of Richard Sedgwick (after MacAngus and Kane) where a conviction for
culpable homicide was obtained: “Fatal heroin injection man jailed”, BBC News Online 9 Jun 2009
(available at http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/8092011.stm).
23 Para 45.
24 G H Gordon, The Criminal Law of Scotland, 3rd edn by M G A Christie, vol 2 (2001) para 26.12.
Vol 13 2009 analysis 507
that is to say one which is fully informed and voluntary – a position which leaves
considerable scope for interpretation. That said, the principle of causation, and its
basis, have been clearly set out by the House of Lords and they have the potential
to exclude liability in certain cases. But what is the “principle” of causation defended
by the appeal court? If it is not respect for autonomy, neither does it seem to be a
defence of a more limited position where an act of informed consent might break
the causal chain. Administration, it seems, will not break the chain of causation, and
supply for immediate consumption will be treated as equivalent to administration – if
not also reckless in the circumstances.25 Causation, it appears, is not really playing
any effective role here, as everything will in practice be based on the judgment of
recklessness. This is unquestionably a practical approach, but it is hard to see what
remains of the principles of causation.
Lindsay Farmer
University of Glasgow
EdinLR Vol 13 pp 507-511
DOI: 10.3366/E1364980909000663
Unincorporated Associations Reform
“All our law is about persons, things and actions. Let us first consider persons”. From
Gaius,1 through Justinian,2 to the Scotland Act 1998,3 the tripartite distinction of
private law has had an enduring influence. Yet it is a curious fact that the first pillar of
the Gaian scheme has, in Scotland, with the important exception of child and family
law, been all but ignored. It is not taught at university. There is no book on the subject.
And outside academia the law of persons is perhaps not even widely recognised as
a subject. In daily practice, however, there are a myriad of problems. The law of
persons might be broken down into various sub-categories: persons and non-persons;
natural persons and legal persons; persons and patrimonies. It is in the law of persons
that concepts on legal personality and legal capacity need to be studied. The law of
persons, though core, is too often ignored.
The law of clubs and unincorporated associations may be regarded as falling
within what Rudolf von Jhering termed Die Jurisprudenz des täglichen Lebens (Law
in Daily Life).4 If the law of unincorporated associations does not sound like a
25 MacAngus and Kane at paras 50-51.
1 Gaius, Inst. 1. 8: omnia autem ius quo utimur vel ad personas pertinet vel ad res vel ad actiones. [sed]
prius videamus de personis.
2 Justinian, Inst 1.2.12 is taken from Gaius.
3 Scotland Act 1998 s 126(4).
4 Cf A I Phillips, “Rating relief: miscellaneous organisations and associations” (1958) 1 Conveyancing
Review 80: “The majority of solicitors represent one or more among the hundreds of clubs and non-
commercial organisations whose objects exclude profit-making or use it only as a means to an end;


Lindsay Farmer

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