Evans, R v

For gross negligence manslaughter by omission, a duty to act may arise where a person has created or contributed to a state of affairs which that person knows, or ought reasonably to know, has become life-threatening. The duty is not confined to familial or professional relationships. It normally requires reasonable steps to save the endangered person’s life.

The existence and scope of a duty are questions of law for the judge. The jury decides disputed facts and applies the judge’s directions as to the factual conditions on which a duty arises. Leaving the legal question itself to the jury was an error, but will not make a conviction unsafe where the facts necessarily establish a clear duty and all other elements of the offence are proved.

The appellant and her mother were convicted at the Crown Court at Swansea of gross negligence manslaughter following the death of the appellant’s 16-year-old half-sister from heroin poisoning. The jury found that the appellant had acted as an intermediary in obtaining and giving the heroin to the deceased.

After the deceased displayed obvious symptoms of overdose, the appellant and her mother did not seek medical help. They put her to bed and hoped she would recover. The appellant appealed against conviction, contending that she could not owe a duty of care and that the judge wrongly left the existence of that duty to the jury.

The central issues were whether the appellant’s involvement in supplying the heroin and her awareness of the ensuing danger could give rise to a duty to act, and whether the respective functions of judge and jury had been correctly identified.

1. Appeal dismissed. The appellant’s involvement in the supply of heroin could not found unlawful-act manslaughter where the deceased self-administered it: R v Kennedy (No 2) [2008] 1 AC 169 did not apply to gross negligence manslaughter.

2. In gross negligence manslaughter, omission liability is not confined to a pre-existing familial or professional relationship. Consistently with R v Miller [1983] 2 AC 161 and the ordinary law of negligence, a person who has created or contributed to a state of affairs which he knows, or ought reasonably to know, has become life-threatening will normally be under a duty to take reasonable steps to save the other person’s life.

3. The judge’s directions correctly identified the elements of gross negligence manslaughter: duty, breach, causation and negligence so gross as to be criminal. The jury’s finding that the appellant procured and supplied the heroin, combined with the undisputed evidence that she recognised a serious overdose and was present throughout the night, established a plain duty to seek reasonable assistance. The remaining elements were also proved.

4. The existence and scope of a duty of care or duty to act are questions of law for the judge. The jury’s function is to determine the facts. Where the duty is disputed, the judge should direct the jury that, if specified facts are proved, a duty arises in law, and that other specified facts may negative it. R v Willoughby [2005] CLR 389 should be understood in that limited sense.

5. The trial judge had wrongly left the legal question whether the appellant owed a duty to the jury, but he had followed the prevailing understanding of R v Willoughby. The error did not render the conviction unsafe because the facts found by the jury, as a matter of law, imposed the duty.

The court added that a voluntary assumption of responsibility may in other cases found a duty where it has led the victim or others to depend on the defendant to act.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2009] EWCA Crim 650.
• Crown Court at Swansea: Before Lloyd Jones J and a jury, the appellant and her mother were convicted of gross negligence manslaughter.