MANSLAUGHTER AND THE SUPPLY OF CLASS A DRUGS
APPEALS OUT OF TIME

R v Lisa Marie Keen
Judgment given 24th April 2008

The Court of Appeal allowed the appeal, quashing the conviction for manslaughter in the light of the House of Lords decision in R v Kennedy (Simon) (2007) UKHL 38, (2008) 1 AC 269.  In that case the House of Lords held that the supplier of a Class A controlled drug would not be guilty of manslaughter if the person to whom the drug was supplied freely and voluntarily self-administered it.

Ms Keen had previously pleaded guilty to manslaughter on the basis that the deceased and her had prepared and injected the heroin from which he overdosed together.  She had been unaware of the amount he had had to drink.  It was now submitted that following Kennedy  Ms Keen should not have pleaded guilty because the accepted basis of plea did not amount in law to guilt of the charge.

The Court of Appeal stated that Judges should only exercise their discretion to allow an appeal long out of time when there had been changes in the law or where there had been a substantial injustice. In the instant case there had been a substantial injustice as the case could have been adjourned until the decision in Kennedy had been made. Further, as a charge of supplying a class A drug had been left on file the prosecution could have proceeded with that charge in the alternative. It was clear that the guilty plea and the proceedings had been based on principles in Kennedy and in light of that decision it would have been inappropriate to uphold the conviction as the proceedings had originated on a wholly incorrect basis of law.  A retrial was not appropriate in this case.

MAGISTRATES COURT PROCEEDING IN THE DEFENDANT’S ABSENCE

R (on the application of DAVIES) v SOLIHULL JUSTICES (2008)
Judgement 24th April 2008

The Defendant attended Court for his trial but was refused entry to the building having allegedly been aggressive to Court staff.  The Court conducted an enquiry, hearing from two witnesses who were cross examined, but not from the Defendant.  They found that the Defendant had exhibited abusive behaviour and that by virtue of his conduct, he had voluntarily absented himself from the hearing of his case.   He was tried and convicted in his absence by a differently constituted court and a Judicial Review sought.

The Court held that it was well established that it was only in very rare circumstances that the criminal trial of an accused could proceed in his absence. In general a trial could only proceed where either the accused was disturbing proceedings in court so that his removal was necessary, or where he had absconded or deliberately absented himself from the hearing. In the instant case the Defendant had misbehaved, but that misbehaviour did not justify an exclusion from his own trial. Moreover, the magistrates' court treated the Defendant as being voluntarily absent, which could not be correct. The Defendant had wanted to be in court but was prevented by the exclusion. Whilst it could be said that the exclusion was his own fault, that was not the same as its being his own choice. Accordingly, the conviction was quashed and the case remitted for retrial. 

EXCESS ALCOHOL BLOOD SPCIMENS

Ryan McNeil v Director of Public Prosecutions
Judgment 24th April 2008

The Court quashed a conviction for driving with excess alcohol on the basis of a blood sample reading given, as the Officer had been erroneous in requiring the Defendant to provide that sample. 

At the police station the breath procedure was carried out and during the course of the second breath specimen being taken, the Defendant had burped.  Question A17 on the MGDD/A form enquires as to whether the Defendant had brought up anything from his stomach since he had started to use the intoximeter and a note to the question stated that if a police officer received a positive answer to that question there was reasonable cause to believe that the instrument used had not produced a reliable indication and directed the police officer to require a specimen of blood or urine. The officer followed that direction and required M to provide a specimen of blood. 

It was held that as it was settled law that a specimen of breath that had been affected or potentially affected by reflux or regurgitation from the stomach was to be treated as a specimen of breath for the purposes of the Road Traffic Act 1988, an indication obtained from an intoximeter in such circumstances could not be regarded as unreliable for the purposes of s.7(3)(bb) of the Act so as to entitle a police officer to require a specimen of blood.  For that reason the conviction was quashed.