R v Evans [2009] 2 Cr App R 10 Court of Appeal

The appellant was convicted of gross negligence manslaughter along with her mother in relation to the death of her 17 year old sister, Carly Townsend who died of a heroin overdose. The appellant was 8 years older than her sister. The appellant, her mother and Carly all had a history of heroin addiction. Carly had just been released on licence from a detention and treatment order and a condition of the licence was that she resided at her mother's house. The appellant moved in with her mother after her boyfriend was sent to prison. The appellant bought some heroin and gave it to Carly. Carly self injected the heroin and then developed symptoms which the appellant, from her own experience, recognised as being consistent with an overdose. The appellant and her mother decided not to seek medical assistance for fear of getting into trouble. Carly died. The appellant appealed against her conviction for gross negligence manslaughter on the grounds that the judge had left it to the jury to decide whether the appellant owed a duty of care and that it was wrong to leave this to the jury where this would involve an extension of principles relating to duty of care.

Held:

The judge was wrong to leave the jury to decide the issue of duty of care. The existence, or otherwise, of a duty of care or a duty to act, is a question of law for the judge: the question whether the facts establish the existence of the duty is for the jury. However, the mis-direction did not render the conviction unsafe. The appellant's duty of care arose not out of her familial relationship, nor from her actions in seeking to care for Carly, but from her supplying the heroin. She had in effect created a dangerous situation and failed to take action to reduce the risk by summoning medical assistance which would have saved her.

Lord Chief Justice:


"The duty necessary to found gross negligence manslaughter is plainly not confined to cases of a familial or professional relationship between the defendant and the deceased. In our judgment, consistently with Adomako and the link 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 on him to act by taking reasonable steps to save the other's life will normally arise."

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