Law Report: Manslaughter by omission requires duty to act

Law REPORT: 25 march 1998

Regina v Khan and another; Court of Appeal (Criminal Division) (Lord Justice Swinton Thomas, Mr Justice Rix and Mr Justice Astill) 18 March 1998

IN ORDER for a person to be convicted of manslaughter by omission, it was necessary to show that he had owed a duty to the deceased to act.

The Court of Appeal allowed the appeals of Rungzabe Khan and Tahir Kahn against their convictions of manslaughter at Birmingham Crown Court. They had also been convicted of offences of supplying drugs and of possession with intent to supply, and had

pleaded guilty to conspiracy to prevent the burial of a dead body.

The deceased was a 15-year-old prostitute. She had gone to a flat where the appellants, who were drug dealers, had supplied her with a quantity of heroin. It was probably the first time she had taken the drug. She had snorted through her nose and swallowed an amount which was 10 times the therapeutic dose and twice the amount likely to be taken by an experienced user. She had begun to cough and splutter and had gone into a coma, being obviously in need of medical attention. The appellants had left the flat, leaving the girl alone. They had returned the next day to find her dead, and had dumped her body on some waste ground.

They were charged with murder, but, at the close of the prosecution case, the judge had upheld a defence submission that no reasonable jury could conclude that either appellant had possessed the requisite intent, and had ruled that it was open to the jury to convict of manslaughter by omission.

Balbir Singh (Registrar of Criminal Appeals) for Rungzabe Khan; Peter Carr (Registrar of Criminal Appeals) for Tahir Khan; John Mitting QC (Crown Prosecution Service) for the Crown.

Lord Justice Swinton Thomas said that the judge had put the case on the basis that the appellants could be convicted of manslaughter if they had set in train a chain of events which had given rise to a risk of harm to the deceased. It was important to bear in mind that the actus reus relied on by the Crown was not the supply of heroin but the omission to summon medical assistance.

Before a jury could convict of manslaughter, they had to be sure that the defendant was criminally responsible for the killing. In Airedale National Health Trust v Bland [1993] AC 789 Lord Mustill had stressed that in order to be criminally responsible for the consequences of an omission a person must stand "in such a relation to the victim that he is under a duty to act".

The Crown had submitted that the present case was a "duty case", and that the judge had so decided. He had, however, clearly done no such thing. He had made no ruling as to whether the facts were capable of giving rise to the relevant duty and had not directed the jury in relation to that issue. To extend the duty to summon medical assistance to a drug dealer who supplied heroin to a person who subsequently died would undoubtedly enlarge the class of persons to whom, on previous authority, such a

duty must be owed.

In the present case the summing up on manslaughter by omission had been flawed and inappropriate. If the Crown alleged manslaughter by omission on facts such as those in the present case, the appropriate course would be to leave to the jury the following questions: whether a duty of care was owed by the defendant to the deceased; whether there had been a breach of that duty; whether the breach had caused the death; and whether the breach of duty should be characterised as gross negligence and therefore as a criminal act.

But for the reasons given the conviction for manslaughter must be quashed.