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18 Feb 2014

Merry Neal mentioned in MSN news – Neknominate: could drinkers really face prison for daring friends?

The rapid growth of the social media drinking game ‘Neknominate’ is so far thought to have led to as many as five deaths, and has also caused a flurry of panicked headlines in the national – and even global – press.

Bradley Eames, a 20-year-old rugby player from Nottingham, became the latest young person whose death has been linked with the lethal craze after reportedly drinking two pints of gin at once. Four days later, Eames was dead.

And most recently, some media outlets – including the MailOnline and Metro – have warned that those who dare their friends to undertake the challenge could face criminal charges should things go tragically wrong.

Is that true? Well, not exactly. In the article which spurred the claim, the Mail cited comments from lawyer Julian Young, making the point that if a drinker died “the person who urged them to do the dare could face a manslaughter charge”.

However, speaking to MSN, Mr Young said that the newspaper appears to have misunderstood his argument.

The verdict

“If you take a case of A daring B to [down a dangerous drink], then B should be intelligent enough not to get involved,” he says. “I can’t see any way A could be prosecuted for that.”

Barrister and legal commentator Merry Neal agreed. She said: “It reminds me of that comment your mum always used to make: ‘If your friend told you to jump off a cliff, would you?’

“Daring someone to do something isn’t illegal,” she continued. “Nor can a death make a lawful act unlawful for these purposes.”

Even where the original act is undoubtedly illegal, but it does not directly ‘cause’ the death, the courts will not deem it manslaughter. Ms Neal references R v Kennedy in this respect, a 2007 House of Lords ruling. It relates to a case in which a man was acquitted of manslaughter on appeal after supplying heroin to a person who subsequently died from its use.

She said: “That case says that if you sell heroin to a fully informed and responsible adult and they administer it themselves and die, since the actual act of supplying drugs in and of itself cannot cause harm (but rather the subsequent taking of it), it cannot form a manslaughter charge.”

As it is the act of drinking, rather than a dare, that causes potential harm in a game like Neknominate, Ms Neal argues it is unlikely any legal challenge would get off the ground – assuming that the person affected was an informed, consenting adult.

While the scenarios above relate to unlawful act manslaughter, a second type of manslaughter exists – gross negligence manslaughter. However, Ms Neal suggests it is also unlikely that this charge would apply, as a duty of care would have to be established.

How a dare could land you in trouble

So, while nominating a friend to undertake such a challenge is evidently dangerous and irresponsible, the verdict from lawyers seems to be that it’s unlikely to land someone in prison if it results in the drinker suffering harm or even death as a result.

However, Mr Young warns that there may be instances when daring or ‘nominating’ could lead to legal trouble – one being if that dare directly causes harm to a third person.

Mr Young warned that if, for example, a dare (by A) included encouraging the drinker (B) to do harm or even kill another person (C, in this case), then both A and B could be liable for prosecution.

The crucial difference in this instance is that a third, innocent, party would have suffered as a result of the dare.