R v Evans (Gemma) [2009] EWCA Crim 650

Gemma Evans procured heroin for her half-sister Carly, who self-injected, showed clear overdose symptoms and later died. Evans and their mother failed to seek medical help. The Court of Appeal held Evans owed a duty of care and upheld her manslaughter conviction for gross negligence.

Facts

Gemma Evans and her half-sister, Carly Townsend, together with their mother, Andrea Townsend, were all heroin addicts. Carly, not quite 17, had recently undergone detoxification while serving a detention and training order and had been released on licence with a requirement to live at her mother’s home and observe a curfew.

On 2 May 2007, Evans arranged to buy heroin from a local dealer, Andrew Taylor. He supplied three packages for £15 as he had no change for £20. Evans handed some or all of the heroin to Carly. Later that afternoon, after a social worker’s visit, Carly self-injected the heroin while Evans and their mother were in the house.

Carly then developed symptoms consistent with a heroin overdose, including loss of colour (suggestive of cyanosis) and a high temperature. Evans recognised the seriousness of the situation, recalling similar symptoms from her own previous overdose that had required paramedic intervention with Naloxone. In police interview, Evans described seeing that Carly’s lips had turned blue, that she was “in a mess” and incapable of responding.

Evans and her mother decided not to seek medical assistance because they feared that they, and possibly Carly, would get into trouble. Instead they put Carly to bed, placed her in the recovery position, and periodically checked on her, hoping she would “sleep the drugs off”. Evans reported that Carly appeared to regain normal colour and settled into a heroin “gouch”, a state of virtual unconsciousness thought by recreational users to be normal. Evans accepted in interview that Carly expected her and their mother to look after her needs that night.

They slept in the same room as Carly. The next morning, Andrea woke Evans and told her that Carly was dead. A 999 call was made at 8.33 am. Paramedics arrived within minutes and identified post-mortem staining and rigor mortis, indicating Carly had been dead for some time. The cause of death was heroin poisoning.

Police searches recovered a syringe in Andrea’s gown and a bag of heroin (0.04g, 64% purity) from Andrea’s purse. Evans identified Andrew Taylor as the supplier. At trial in the Crown Court at Swansea, both Evans and Andrea were convicted of manslaughter by gross negligence arising out of Carly’s death.

The key factual dispute at trial concerning Evans was whether she had been concerned in supplying the heroin from Taylor with which Carly injected herself (the “supply issue”). The jury resolved this adversely to Evans, being sure she had been concerned in the provision of the heroin. Other matters were not in dispute, including that Evans remained at the premises throughout, witnessed obvious signs of heroin overdose, appreciated the seriousness of Carly’s condition, and, with Andrea, believed they were responsible for Carly’s care after she had taken the heroin.

Issues

1. Existence and scope of a duty of care

The first central issue was whether Evans could, in law, owe Carly a duty of care, breach of which could found liability for manslaughter by gross negligence. Her criminal liability, if any, had to be based on gross negligence manslaughter, since her involvement in supplying the heroin could not amount to unlawful act manslaughter in light of R v Kennedy (No 2).

The question was whether, despite the absence of a traditional familial duty or professional responsibility akin to that of Carly’s mother, Evans was under a duty to take reasonable steps for Carly’s safety once she appreciated that the heroin she had procured was having a potentially fatal effect.

The court reviewed the treatment of omissions and duties to act, noting that while the common law generally imposes no liability for “mere” or “pure” omission, liability can arise where a defendant has created or contributed to a dangerous state of affairs, or stands in a relationship that gives rise to a duty to act.

The court drew on civil and criminal authorities. In civil law, Lord Scott in Mitchell v Glasgow City Council stated:

“Sometimes the additional feature may be found in the manner in which the victim came to be at risk of harm or injury. If a defendant has played some causative part in the train of events that have led to the risk of injury, a duty to take reasonable steps to avert or lessen the risk may arise”.

He added:

“In each case where particular circumstances are relied on as constituting the requisite additional feature alleged to be sufficient to cast upon the defendant the duty to take steps that, if taken, would or might have avoided or lessened the injury to the victim, the question for the court will be whether the circumstances were indeed sufficient for that purpose or whether the case remains one of mere omission”.

In the criminal context, the court referred to the long-accepted principle that murder and manslaughter can be committed by omission where the defendant is under a duty to act, as highlighted by Lord Mustill in Airedale NHS Trust v Bland.

The court examined R v Miller, where Lord Diplock accepted the “duty theory” in cases where the defendant has created a danger, observing:

“…no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence…I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged: provided that at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk.”

The court also cited R v Adomako, where Lord Mackay LC held that:

“The ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died”

and approved the gross negligence test, and authorities such as R v Khan and Khan and R v Sinclair, Johnson and Smith which had considered duties in the context of drug overdoses, as well as R v Willoughby and R v Wacker on duties arising from participation in dangerous joint enterprises.

Drawing these strands together, the court concluded that the duty necessary to found gross negligence manslaughter is not confined to familial or professional relationships. It held that where a person has created or contributed to a state of affairs which he knows, or ought reasonably to know, has become life-threatening, a duty to take reasonable steps to save the other’s life will normally arise.

2. Allocation of responsibility between judge and jury on duty of care

The second major issue concerned whether it is for the judge or the jury to decide if a duty of care exists in gross negligence manslaughter. The court noted the debate identified by academic commentary, which suggested three possible models:

“View 1. It is for the judge to decide when in law a duty of care arises. But it is for the jury to decide what the facts are…

View 2. The jury are to decide not only what the facts are, but also the meaning of duty of care and whether there is a duty of care on those facts.

View 3. The definition of the duty of care is shared between a judge and a jury. The judge can decide whether in law there could be a duty of care, but if there could it is for the jury to decide whether or not there is…”

The court recognised inconsistency in the authorities, particularly following R v Willoughby, which had been understood as placing the existence of a duty largely in the hands of the jury. It returned to first principles: in criminal trials, facts are for the jury and law is for the judge. It therefore characterised the existence or otherwise of a duty of care, or duty to act, as a question of law, with the jury determining whether the necessary factual predicates are established.

The court questioned the interpretation in Willoughby of Lord Mackay’s language in Adomako, noting that his reference to the jury “going on” did not imply that duty questions are for the jury. It endorsed academic commentary that the duty question remains one of law, with the jury to be directed that if they find certain facts proved, a duty in law will arise or be negatived.

Reference was also made to Halsbury’s Laws (Negligence) on the respective functions of judge and jury, and to section 2(5) of the Corporate Manslaughter and Corporate Homicide Act 2007, which provides:

“For the purposes of this Act whether a particular organisation owes a duty of care to a particular individual is a question of law. The judge must make any findings of fact necessary to decide that question”.

The court treated this as consistent with the principle that the existence of a duty is a question of law.

3. Fair trial and legality under the ECHR

Evans argued that leaving to the jury the decision whether to extend the category of persons to whom a duty of care is owed was incompatible with Articles 6 and 7 of the European Convention on Human Rights. The court’s conclusion that duty is a question of law addressed and neutralised this concern: juries are not to create or extend duties as a matter of law; instead, trial judges must rule on the legal existence of any duty based on factual findings open to the jury.

Judgment

Rulings at trial on duty and causation

At the close of the prosecution case, the trial judge rejected submissions that Evans could not, in law, owe Carly a duty of care, and that there was insufficient evidence of causation in relation to Andrea. He held that it was capable of being found that Evans owed Carly a duty of care based on her role in procuring the heroin and her subsequent conduct.

In summing up, the judge identified four questions for the jury on manslaughter by gross negligence:

“(1)Has the prosecution made you sure that that defendant…owed Carly Townsend a duty of care?

(2) If so has the prosecution made you sure that that defendant was in breach of that duty of care?

(3) If so, has the prosecution made you sure that the defendant’s breach of that duty of care caused the death of Carly Townsend?

(4) If so, has the prosecution made you sure that that defendant’s breach of that duty of care was such gross negligence as to amount to the crime of manslaughter?”

He emphasised that the case against Evans was based solely on her omission to summon medical help, and that there must be a pre-existing duty to act. He directed that Evans’ blood relationship to Carly did not of itself give rise to a duty of care and that her limited attempts to assist (placing Carly in the recovery position and periodically checking on her) did not, as a matter of law, amount to an assumption of responsibility sufficient to create a duty.

The judge told the jury that, as a matter of law, the only matter capable of giving rise to a duty of care owed by Evans to Carly was if Evans had, on this occasion, acted as an intermediary by obtaining the drugs from Taylor and giving them to Carly:

“In the present case, the only matter which in law is capable of giving rise to a duty of care owed by Gemma Evans to Carly Townsend would be if Gemma Evans did, on this occasion, as the prosecution allege, act as an intermediary, giving the drugs to Carly herself having first obtained them from Andrew Taylor. If the prosecution have made you sure that Gemma Evans did on this occasion act as an intermediary, giving the drugs to Carly herself, having first obtained them from Andrew Taylor, that is a matter which in law is capable of giving rise to a duty of care. It is for you to decide whether the prosecution has made you sure that such a duty of care has arisen on the facts found by you. …if the prosecution has not made you sure that Gemma Evans did, on this occasion, act as an intermediary, giving the drugs to Carly herself having first obtained them from Andrew Taylor, then she cannot have owed a duty of care to Carly Townsend and you must find Gemma Evans not guilty. It is for you to decide, having regard to all the circumstances of this case as you find them to be, whether each defendant owed a duty of care towards Carly Townsend.”

Thus, only if the supply issue was proved could a duty of care be found. On that basis, and given the undisputed facts about Evans’ awareness of the risk and her proximity to Carly, the trial judge allowed the question of duty and breach to go to the jury.

Court of Appeal’s analysis on duty and omission

The Court of Appeal confirmed that Evans’ liability could not rest on unlawful act manslaughter from her involvement in supplying heroin, but had to be based on gross negligence manslaughter. It synthesised the authorities to hold that the duty required for gross negligence manslaughter is not limited to classic categories such as familial or professional relationships, but arises where a defendant has created or contributed to a life-threatening situation.

Summarising its conclusion, the court stated that, consistently with Adomako and the linkage between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter:

When a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life-threatening, a consequent duty to act by taking reasonable steps to save the other’s life will normally arise.

On the facts as found by the jury – that Evans had procured the heroin from Taylor and supplied it to Carly, remained with her throughout, recognised the symptoms of overdose, knew from personal experience the seriousness of such symptoms, and believed herself responsible, with Andrea, for Carly’s care – the court held that Evans was under a “plain and obvious” duty to take reasonable steps to secure medical assistance.

The court accepted that the judge’s comment limiting the creation of a duty to Evans’ role as intermediary in the supply ignored the possibility that a duty might arise from a voluntary assumption of responsibility in different cases, but found that did not affect the correctness of the legal analysis in this particular case.

Judge versus jury on duty of care

On the allocation of responsibility between judge and jury, the Court of Appeal held that the existence and scope of any duty of care or duty to act is a question of law for the judge, in line with first principles and civil law practice. The jury’s function is to decide whether the factual conditions identified by the judge as giving rise to a duty are proved.

It reinterpreted Willoughby to avoid reading it as making duty a question of fact for the jury. Instead, the court endorsed the view that the jury must be directed on the law: if they find specified facts (for example, that the defendant created or contributed to a life-threatening state of affairs, or assumed responsibility), then a duty arises; if they find other specified facts, the duty is negatived. In this sense the jury decides whether the duty situation is established, but only by applying the legal framework provided by the judge.

The court acknowledged that the trial judge should not, strictly, have left to the jury the question of whether Evans owed a duty of care, but held that he had been following Willoughby as it was then understood, and was not to be criticised for doing so.

Outcome

The Court of Appeal found that, on its own analysis of the law and the facts found by the jury, Evans had a clear duty to take reasonable steps to assist Carly once she realised that the heroin she had supplied was causing a potentially fatal overdose. The remaining elements of gross negligence manslaughter – breach of duty, causation, and grossness amounting to a criminal act – were also satisfied on the evidence.

Accordingly, the court held that although the jury had been invited to decide the duty question, this did not render the conviction unsafe, because on any proper application of the law to the facts there was only one answer: Evans owed Carly a duty of care which she grossly breached. The appeal against conviction was therefore dismissed.

Implications

This case is a leading authority on gross negligence manslaughter by omission in the context of drug overdoses. It confirms that a duty to act can arise where a defendant has created or contributed to a life-threatening situation, even outside traditional categories of duty such as familial or professional relationships. Procuring and supplying a dangerous drug which is then self-administered, combined with knowledge of the risk and proximity to the victim, can generate a duty to seek medical assistance when signs of overdose appear.

The decision also clarifies the respective functions of judge and jury in gross negligence manslaughter: the existence and scope of a duty of care or duty to act is a question of law for the judge, while the jury determines whether the factual prerequisites for that duty and its breach are established. Proper judicial directions must therefore identify the factual conditions which, if found, give rise to a duty.

In practice, R v Evans (Gemma) emphasises that individuals who play a causative role in placing another in danger, and who recognise the seriousness of the risk, cannot avoid criminal liability for manslaughter by choosing to do nothing when simple steps such as calling emergency services might save life.

Verdict: Appeal against conviction dismissed; the conviction of Gemma Evans for manslaughter by gross negligence was upheld.

Source: R v Evans (Gemma) [2009] EWCA Crim 650