Can drug dealers be criminally liable if a user dies?

If an adult dies following an overdose from an illegal controlled substance supplied by a drug dealer, the drug dealer cannot – as the law currently stands – be charged with murder. The reasoning is that the criminal law generally recognises ‘free will’, therefore, informed adults of sound mind are treated as autonomous beings and able to make their own decisions on how to act. The approach of the courts to date is that the person being supplied with the drug has free choice as to whether or not to inject themselves – and to risk the consequences.

In some cases, it is possible a murder charge could be brought. For example, if heroin is supplied to a child; or a deadly batch of heroin mixed with fentanyl is knowingly supplied – leading to the user’s death – the drug dealer could be found guilty of murder.

A death following the supply of illegal drugs could lead to a charge of ‘constructive’ manslaughter (also known as involuntary or ‘unlawful act’ manslaughter) or gross negligence manslaughter.

This occurs where the defendant has committed an unlawful act which resulted in the death of the victim. To prove constructive manslaughter, the prosecution must show that:

• the defendant has committed an unlawful act;
• this unlawful act has resulted in the death of the victim.

The supply of an illegal drug is a criminal act and, therefore, an unlawful act under the Misuse of Drugs Act. Therefore, a typical example of constructive manslaughter is where the drug dealer supplies drugs and actually injects the drug into the victim with the victim’s consent, and the victim later dies. However, a drug dealer who supplies a drug to a fully informed and responsible adult, who inject themselves and later die, will not be liable for manslaughter. The reasoning is that the victim who freely injects themselves breaks the chain of ‘causation’ so the dealer cannot be held liable.

Manslaughter by gross negligence is a form of involuntary manslaughter in which no specific unlawful act needs to have been taken place. Instead, the accused must have owed a duty of care towards the victim. To establish gross negligence manslaughter, it has to be shown that:

• the defendant owed a duty of care to the victim;
• there was a breach in this duty by the defendant;
• that the breach of the duty was the cause of death;
• the defendant’s conduct was so bad in all the circumstances as to amount to a crime.

For instance, a woman who gave her sister drugs was found to owe her sister a duty of care when she asked for help showing signs of an overdose. The duty of care arose out of her supply of drugs to her sister. She was put to bed in the hope she would recover, but she died during the night. However, the woman was under a duty of care to take reasonable steps to ensure the victim’s safety. She was found guilty of her sister’s manslaughter through gross negligence.