Legal Case brief
R v Evans (Gemma) [2009] EWCA Crim 650
Manslaughter by gross negligence – duty of care
Facts
Evans purchased heroin and gave it to her half-sister who later self-ingested the drug. Evans recognised that the victim had symptoms akin to those of an overdose and remained with her mother and the victim, without calling for medical assistance as they feared getting into trouble. They checked on the victim at intervals throughout the evening and when they awoke the following morning the victim was dead. The cause of death was poisoning from heroin. The primary dispute in the first instance was whether the supply of drugs to her half-sister had created a duty of care between Evans and her half-sister. The trial judge left the existence of a duty to the jury. Evans was convicted of gross negligence manslaughter. Evans subsequently appealed.
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Issues
Evans submitted that the judge had erred in his instruction to the jury regarding duty of care in the circumstances and that it was inconsistent with previous authority to do so. Further, she argued that the judge was wrong to leave the question of duty of care to the jury and that doing so conflicted with Articles 6 and 7 of the European Convention on Human Rights.
Decision/Outcome
The Court of Appeal dismissed the appeal. For gross negligence manslaughter, a person who creates or contributes to a situation they know or ought reasonably to know has become life-threatening will normally have a duty to take reasonable steps to save the other person. Evans had supplied the heroin and recognised the signs of overdose. On the facts found by the jury and the undisputed facts, she owed a duty to seek assistance.
Whether the facts give rise to a duty of care is a question of law for the judge. The jury decides any disputed facts on which that duty depends. The trial judge had wrongly left the legal question to the jury, but the error did not make the conviction unsafe because the facts established the duty.
