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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Keen, R. v [2008] EWCA Crim 1000 (24 April 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1000.html Cite as: [2008] EWCA Crim 1000

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		24th April 2008

1. MR JUSTICE DAVID CLARKE: On 3rd January 2007 in the Crown Court at Luton before His Honour Judge Bevan QC, the applicant Lisa Marie Keen, who is now 38, pleaded guilty on rearraignment after the start of her trial to a count of manslaughter. On 4th January, the following day, she was sentenced to 3 years' imprisonment. Her sentence was subsequently reduced on appeal to this court to one of 2 years' imprisonment. Count 2, a count of supplying a class A drug, namely heroin, and count 4, a count of administering a poison or noxious substance so as to endanger life, were ordered to lie on the file on the usual terms. A not guilty verdict was entered on no evidence being offered on a count of permitting premises to be used for supplying heroin, that being count 3 of the indictment.
2. The applicant's application for leave to appeal against her conviction and for a long extension of time in which to apply for such leave have been referred to the full court by the Registrar.
3. The application is based on the decision of the House of Lords in R v Kennedy (No 2) [2008] 1 AC 269, [2007] UKHL 38. This court is necessarily very cautious in exercising its power to allow long extensions of time for seeking leave to appeal against convictions where there has been a change in the law since the date of the conviction. The grant of such an extension is by no means a routine matter. It is, on the contrary, exceptional. Whether the proposed appeal arises from a change in the law or otherwise, an extension of time is granted only where substantial injustice would otherwise be suffered by the applicant (see Ramzan [2006] EWCA Crim 1974, an extensive judgment of Lord Justice Hughes, and the later case of Cottrell [2007] EWCA Crim 2016, a judgment of the President).
4. This is a change of law case based on the House of Lords' decision in Kennedy. As Sir Igor Judge P said in Cottrell, the considerations in such cases go well beyond the defendant before the court. It will not normally constitute a substantial injustice if the defendant has been convicted some time ago, after a fair trial, upon a proper application of the law as it was then understood. It will especially not do so if there would have been other charges which would have been investigated had the new law been known at the time, indeed sometimes ones to which there would have been no answer.
5. The difference in this case, as in the case of Byram (to which we will refer later), is that if the point had been taken at the time of the trial or immediately afterwards, there could have been either an application in the Crown Court to stand the case back until the decision of their Lordships in Kennedy was known, or a timely application to this court for leave to appeal which, no doubt, would not have been heard pending the resolution of Kennedy. Moreover, the only possible alternative offence, that of supplying a drug, was before the Crown Court and was left to lie on the file, and could therefore be revived if appropriate.
6. In those circumstances, as in Byram, we are satisfied that in this case there would be substantial injustice if leave were not given to pursue this appeal out of time. Our decision in this case should not be taken to provide any indication of how any other case will be dealt with, because each must be considered on its own facts.
7. The facts of this case, as opened to the jury, can be summarised in this way. On the evening of 25th September 2005, an ambulance was summoned to the applicant's home in Clarence Road in Leighton Buzzard as a result of an emergency call. It was understood that a 35-year-old man was seriously ill as a consequence of taking heroin. When paramedics arrived at the address, they found that the man there, Darren Lebek, was dead. Another man, Darren Savage, who had been at the applicant's house, had directed the paramedics to the deceased. The applicant and another lady who had been present, Alison Linney, had left the house before the paramedics arrived. Post-mortem examinations revealed the cause of death to be a heroin injection into the deceased's arm.
8. The applicant was arrested. When interviewed she gave an account which was later set out in the basis of her plea when she pleaded guilty to manslaughter. However, before she pleaded guilty the Crown had called in the trial a witness, Darren Savage, who gave some evidence, regarded by the judge as unsatisfactory, of an admission by the applicant that she had administered the relevant injection. But this was not part of the basis on which she pleaded guilty, and it was accepted by the Crown and by the judge that the basis upon which she pleaded guilty was the proper basis on which to proceed. This was to the following effect.
9. On 25th September in the evening Darren Lebek, the deceased, unexpectedly visited the applicant's home, bringing some cider with him. He said he wanted to go and buy heroin. He had money to buy it; the applicant had none. They went to a nearby phone box to arrange to buy heroin to share. They bought it together with his money. They returned to her flat. Although they bought foil on the way back with his money, Darren Lebek said that he wanted to inject the heroin, whereas the applicant preferred to smoke it. At her flat they were both involved in preparing the heroin. The applicant found the syringes and needles. The spoon and vitamin C were already on the table. Darren Lebek put the vitamin C and heroin in the spoon, and once prepared each loaded his or her own syringe for injection.
10. The applicant did not inject the deceased, nor did she see him actually inject himself. She managed to inject herself. She pleaded guilty on the basis of the joint preparation of the heroin prior to its being loaded by Darren Lebek, the deceased, into the syringe for his own use. She did not know that he had drunk any significant quantity of alcohol or taken any other drugs beforehand. The death was caused by a combination of heroin and alcohol intoxication, and contributed to by the presence of other illegal substances.
11. As we have indicated, the judge accepted that basis of plea and he was faithful to it in his sentencing remarks. He said (at page 2G):

"I am satisfied, as you accept, that you played a part — and a part which cannot be minimised — in the preparation of heroin which he injected into himself from the spoon, ..."

A little later he said:

"This was a classic joint enterprise of together buying, preparing and injecting heroin between two people. Heroin is a blight on society, and one only has to look at you to see that you are a victim of your addiction, but he was a victim of your dangerous and unlawful act, and he paid for it with his life."

12. This plea was entered on 3rd January 2007. In March 2006 a similar plea of guilty to manslaughter on similar facts was entered by Jeffrey Byram in the Crown Court at Leeds. In that case, as in this, the factual basis for a prosecution for manslaughter was very largely based on the facts disclosed by the defendant when interviewed by the police, involving the joint purchase of heroin to be shared between the deceased and the defendant and some joint participation in the preparation of the injections. On the strength of the Court of Appeal's decision in Kennedy ([2005] EWCA Crim 685), there was not considered to be any defence to the prosecution, on the basis that the supply of the fatal dose, supplied by one to the other in the course of the preparation of the injection, was the relevant unlawful act. The plea was entered on the basis of the law as it was then understood to be.
13. In the present case, much the same occurred. In fact, and unknown to all parties at the Crown Court at Luton when the plea was entered in January 2007, Kennedy had obtained in October 2005 leave to appeal to the House of Lords against his conviction on his plea of guilty. The Court of Appeal, following the hearing before this court, had certified the following question:

"When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self administered by the person to whom it was supplied, and the administration of the drug then causes his death?"

14. The appeal to the House of Lords was argued on 30th and 31st July 2007 and the considered opinion of the House was delivered on 17th October 2007, quashing Byram's conviction for manslaughter. Byram accordingly sought leave to appeal against his conviction out of time. This court allowed the long extension of time that was required and on 8th February 2008, in a judgment delivered by the President of the Queen's Bench Division ([2008] EWCA Crim 516), quashed the conviction.
15. It is appropriate to cite the relevant passage from the President's judgment in Byram. Having set out the certified question, he went on:

"10. ... The response of the House of Lords was very clear and simple: 'In the case of a fully informed and responsible adult never.' In reaching its conclusion the House of Lords referred to another decision of the court, R v Rogers [2003] 1 WLR 1374. In Rogers it was the deceased who bought heroin for himself and for Rogers. He placed the heroin into two syringes. He injected Rogers and then, while Rogers held his belt round the deceased's arm as a tourniquet, he, the deceased, injected himself. Again it was a fatal dose. Rogers was convicted of manslaughter. The House of Lords considered that Rogers was wrongly decided.

11. In his analysis in Kennedy, Lord Bingham of Cornhill went on to consider the possibility that two people, one of whom would be the person who self injected with a deadly dose, could be found to have been acting together, so that as a matter of fact the drug was jointly administered. If so, a manslaughter verdict would be appropriate and could properly by returned against the survivor:

'It is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection.'

12. If a defendant may be convicted on the basis that the fatal dose was jointly administered, then it follows that he is not automatically entitled to be acquitted if the deceased rather than the defendant physically operated the plunger on the syringe and caused the drug to enter his body. In the present case there was evidence which might reasonably have lead a jury to conclude that this appellant had indeed jointly participated in the administration of the fatal dose of heroin. From the interviews as they developed, it emerged that he supplied the deceased with the heroin, which he, the appellant, drew into the syringe on 12th September. He did not hand the syringe to the deceased but he took it and the needle to the deceased's arm, where he found an appropriate vein. He laid the tip of the needle against the skin of the deceased above that vein. It is not clear from the interview that he ever in fact let go of the syringe, but on his account the deceased depressed the plunger. Having done so, the appellant assisted in the physical withdrawal of the plunger from the deceased's arm. That, in summary was the appellant's eventual account of what had happened.

13. The Crown, we must note, was in possession of evidence which tended to suggest that the assertion that the deceased operated the plunger may not have been true. But our immediate concern is that on his own account, it would have been open to the jury to convict the appellant on the basis identified by Lord Bingham of Cornhill in Kennedy.

14. We have therefore been asked to consider whether it would be appropriate to quash the conviction entered on the basis of the appellant's guilty plea. We have reflected carefully on this question. It is clear beyond any doubt that the guilty plea by the appellant and the entire proceedings in the Crown Court were based on the principles explained in Kennedy, in this Court. If Kennedy was guilty, plainly the defendant, as he then was, was also guilty. However, in the House of Lords it was decided that Kennedy was not and, as a matter of law on the facts, could not be guilty. It therefore follows that the appellant's guilty plea was tendered and accepted and the entire proceedings were conducted on what now emerges was a fallacious basis. Whatever view we may now form of the case as a result of reanalysing the interview record, in the light of the principles laid down in the House of Lords, we have come to the conclusion that it would be inappropriate in this case to uphold a conviction following proceedings which were conducted on a wholly incorrect basis in law. In doing so, we should be depriving the appellant of the opportunity to invite a jury to decide whether he was or was not guilty of joint participation in the death of the deceased. In those circumstances the convictions on counts 1 and 3 should be quashed. In view of the fact that the appellant has served his sentence, the Crown, while maintaining that there was ample evidence to justify the appellant's conviction if the case were tried, did not invite us to order a retrial. Given the Crown's approach to the case, we have decided that we should not do so."

16. We have concluded that this court's response to the present appeal should follow the court's response in Byram. In the particular circumstances of this case and on the dates and chronology, of which we have outlined the essentials in this judgment, the extension of time should be granted and leave to appeal should be granted, and the conviction for manslaughter must be quashed.
17. In the present case, the applicant, on her own admissions contained in the basis of plea, was jointly involved with the deceased in part of the process of preparing the drugs for injection. But her involvement did not come so close to the actual injection as in the case of Byram, who, as we have indicated, was dealt with on the basis that he actually helped the deceased to locate a suitable vein and was holding the syringe at the time. To this extent, the present appellant's case for the quashing of her conviction is, if anything, clearer than in the case of Byram.
18. Be that as it may, in this case in the court below the case was conducted on an incorrect basis in law, as in Byram. We have therefore concluded that this is that exceptional case, in which the court should act as we have indicated. The appellant's appeal against conviction on count 1 is therefore allowed and the conviction quashed.
19. Two counts were left to lie on the file, as we have said. In advance of today's hearing it was indicated by the Crown that they would ask this court to revive count 3, the charge of supplying a class A drug to another. That application is not in all the circumstances pursued today. We appreciate the reasons underlying the decision not to pursue it. Accordingly, no order will be made to that effect.
20. LORD JUSTICE HUGHES: We are very grateful, if we may say so, to both of you.
21. That is all, Miss Keen.
22. MISS KEEN: Thanks.
23. MISS PINTO: May I mention one matter in relation to costs. I have the benefit of an order, but my solicitor has had no funding at all. I do not know whether that is something this court can in any way assist with. Miss Keen is a person who has very considerable mental problems and he has, if I may say so, been instrumental in the running of this case between my client and myself. I am afraid I have not been able to find any of the regulations, but I raise it.
24. LORD JUSTICE HUGHES: It is not I am afraid our practice, as you will know, to extend representation orders to solicitors, unless there is some particular work which can only be done by them: enquiries that need to be made and the like. You are instructed in this, as in all cases, by the Registrar.
25. MISS PINTO: That is right. The only ground, as it were, that I can pray in aid would be this --
26. LORD JUSTICE HUGHES: It is liaison with her, is it?
27. MISS PINTO: It is.
28. LORD JUSTICE HUGHES: It is advice to her in prison.
29. MISS PINTO: In particular, as your Lordships may have seen from the end of the Court of Appeal judgment in the appeal against her sentence, she has very considerable mental problems, which manifest themselves in ways such as considering that the deceased is in prison with her.
30. LORD JUSTICE HUGHES: Thank you. (The Bench conferred)
31. It is not for lack of appreciation of his sense of duty, Miss Pinto, but no.
32. MISS PINTO: Thank you.
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