Evans, R v

This is an appeal against conviction by Gemma Evans, who together with her mother, Andrea Townsend, was convicted of manslaughter by gross negligence in the Crown Court at Swansea before Lloyd Jones J and a jury. The conviction arose from the death of Carly Townsend, on 3 May 2007. She was not quite 17 years old. Andrea Townsend was her mother, and the appellant was her older half sister.

Carly Townsend was born in June 1990. The appellant was born in October 1982. Both had a history of heroin addiction. So did their mother. In January 2007, Carly was sentenced to a six month detention and training order. During this period she underwent detoxification. She refused substitute medication. She was seeking to overcome her addiction. She had no access to heroin for 3 months.

She was released on licence on 23 April 2007. It was a condition of her licence that she should observe a curfew and live at her mother’s home at Llanelli, where her mother was living with her youngest child, a teenage son.

According to the evidence of her mother, Carly used heroin on 24 April, the day after her release. She came home late. As she was in breach of her curfew she called the monitoring authority, and provided an excuse. However she told her mother that she had been smoking heroin, obtained from a well known local heroin dealer, Andrew Taylor. There was no evidence that Carly used heroin again until 2 May 2007. Towards the end of the month the appellant came to live with her mother because her boyfriend, with whom she had been living at his parent’s home, had been sentenced to imprisonment.

At about lunchtime on 2 May 2007 the appellant arranged to buy heroin from Andrew Taylor. He offered two bags for £15.00, but he had no change for the £20.00 that she handed him, so he gave her three packages. She handed some or all of the heroin to Carly. Carly’s social worker called at about 3.30pm. She thought that Carly looked pale and tired but there were no signs then that she was under the influence of drugs. Shortly after her departure, while both the appellant and her mother were in the house, Carly self-injected with heroin.

Carly developed and complained of symptoms consistent with an overdose of heroin. These included a loss of colour, which might have been a sign of cyanosis, as well as a high temperature. The symptoms Carly described were similar to those the appellant herself remembered suffering when she overdosed on heroin and was eventually saved by paramedics who had injected her with Naloxone. The appellant described in a later interview with the police that she had seen that Carly’s lips had turned blue, that she was “in a mess”, and was incapable of responding to attempts to speak to her. The appellant and her mother decided not to seek medical assistance because they feared that they themselves and possibly Carly would get into trouble. Instead of seeking help for her they put her to bed, hoping that she would recover spontaneously. They stayed with Carly for a couple of hours. The appellant put water on her face to cool her, and hoped that Carly would sleep the drugs off. According to her account to the police, in due course Carly appeared to be recovering her normal colour and settled into a “gouch”, which is a state of virtual unconsciousness which recreational users of heroin apparently believe to be normal. The appellant and her mother decided to sleep in the same room as Carly. When they went to bed, Carly’s colour had returned and she looked much better. She was snoring, apparently fast asleep, but not then capable of looking after herself. In interview the appellant accepted that Carly expected her mother and the appellant to look after her needs during that night.

On the following morning her mother woke the appellant, and told her that Carly was dead. They were shocked. At 8.33, her mother made a 999 call to the emergency services, stating that her daughter was dead. Paramedics attended within a few minutes. They identified post mortem staining and rigor mortis. These indicated that Carly had been dead for some time. The cause of death was poisoning by heroin.

The police came to the home. The appellant and her mother were searched. A syringe was found in the gown which belonged to her mother, but like the appellant, her mother denied any knowledge of the syringe. The appellant told the police that Andrew Taylor had supplied the heroin Carly had used. She also said that her mother had told her that she had a bag of heroin in her purse. The purse was searched but the heroin was not found. A later telephone call from the appellant’s mother said that she had found the heroin in the corner of the purse. The purse was collected and examined. Forensic analysis confirmed that the bag contained 0.04 grams of heroin of 64% purity.

At the end of the prosecution case, in a careful and detailed ruling, the judge rejected a submission on behalf of the appellant that the case should be withdrawn from the jury on the basis that the Crown had failed to adduce evidence capable of establishing that the appellant owed Carly a duty of care. He also rejected a submission on behalf of her mother that causation was insufficiently established.

The appellant’s mother gave evidence at trial. This appellant did not give or call evidence on her own behalf.

The main dispute of fact between the Crown and the appellant was whether she had been concerned in the supply of the heroin from Andrew Taylor with which Carly had injected herself. We shall describe this as the supply issue. On the verdict of the jury this issue was resolved adversely to the appellant. The jury was sure that she had been concerned in the provision of the heroin.

It was not in dispute before the jury:

that the appellant, together with her mother, had remained at the premises from the time when Carly injected herself, throughout the evening and night, until they woke and the appellant’s mother found that Carly was dead;

that the appellant had witnessed obvious signs of the effect of the drug taken by her half sister, and that she appreciated that her condition was very serious and indicative of an overdose and;

that the appellant and her mother believed that they were responsible for the care of Carly after she had taken heroin.

The present appeal criticises both the judge’s ruling at the close of the Crown’s case, and the directions of law given to the jury in the summing up. As the arguments are inter-connected, it is convenient to deal with them together.

Mr Ian Murphy QC on behalf of the appellant contended that the judge was wrong to find that the appellant was capable of owing a duty of care to the deceased, and that the jury could consider whether she did in fact owe a duty of care to the deceased on the basis that the appellant had supplied the heroin to her. He was also wrong to conclude that “the proposition that the supplier of drugs may owe a duty of care to the customer in such circumstances is …consistent with authority”. The authorities did not support this proposition.

In relation to the directions of law, Mr Murphy submitted that the judge was wrong to leave the jury to decide whether to extend the category of persons by whom and to whom a duty of care is owed for the purposes of manslaughter by neglect, and whether or not to enlarge these categories. The question whether specific facts would serve to establish a duty of care was for the decision of the judge, who should then leave it to the jury to decide whether the facts necessary to establish the duty of care had been proved. This contention was supported by reference to R v Dalby [1982] 1WLR 425, R v Willoughby [2005] CLR 389, R v Wacker [2003] 1CAR 329, R v Kennedy (No 2) [2008] 1 AC 169, as well as R v Khan and Khan, unreported, 18 March 1998 and R v Sinclair, Johnson and Smith [1998] EWCA Crim 2590. It was further contended that the practice by which juries were invited to decide whether a duty of care is proved or to enlarge the class of persons from whom and to whom a duty of care may be owed in cases of alleged gross negligence manslaughter is incompatible with articles 6 and 7 of the European Convention of Human Rights.

In the context of manslaughter the appellant’s criminal liability, if any, depended on manslaughter by gross negligence. Her involvement in the supply to her sister of the fatal dose of heroin could not found a conviction for manslaughter on the basis of her unlawful and criminal act. (R v Kennedy(No 2) an authority expressly stated to have no application to gross negligence manslaughter).

The problem of fixing liability, whether in tort or in crime, on the basis of omission has generated much, indeed prolonged, debate. The Good Samaritan would have been disconcerted to discover that, at common law, absent a pre-existing responsibility for the child, a fit strong adult could watch him drown in shallow water although he was within easy reach and safety. In civil law the virtual inevitability of inroads into this principle was anticipated by Lord Goff in Smith v Littlewoods Organisation Limited[1987] AC 241. The exemption applies only to what was described as “mere” or “pure” omission. In a variety of circumstances what may appear to be an omission to act may be converted into “a breach of a legal duty to take reasonable steps to safeguard, or to try to safeguard…from harm or injury”.

The principle was recently summarised by Lord Scott of Foscote in Mitchell v Glasgow City Council[2009] 2 WLR 481, at para 40, where he said:

In relation to the criminal law, in the current edition of Smith & Hogan on Criminal Law (12^th edition) Professor Ormerod repeats the text from much earlier editions that “the Courts have long accepted without debate that murder and manslaughter are capable of commission by omission”, certainly where the defendant who caused the death was under a duty to act. This principle was highlighted by Lord Mustill in Airedale National Health Trust v Bland[1993] AC 789. He described the “important general exception of common law, namely that a person may be criminally liable for the consequences of an omission if he stands in such relation to the victim that he is under a duty to act. Where the result is death the offence will usually be manslaughter, but if the necessary intent is proved it will be murder”.

The question in this appeal is not whether the appellant may be guilty of manslaughter for having been concerned in the supply of the heroin which caused the deceased’s death. It is whether, notwithstanding that their relationship lacked the features of familial duty or responsibility which marked her mother’s relationship with the deceased, she was under a duty to take reasonable steps for the safety of the deceased once she appreciated that the heroin she procured for her was having a potentially fatal impact on her health.

When omission or failure to act are in issue two aspects of manslaughter are engaged. Both are governed by decisions of the House of Lords. The first is manslaughter arising from the defendant’s gross negligence. (R v Adomako[1995] 1 AC 171) The second arises when the defendant has created a dangerous situation and when, notwithstanding his appreciation of the consequent risks, he fails to take any reasonable preventative steps. (R v Miller[1983] 2 AC 161) Gross negligence manslaughter and unlawful act manslaughter are not necessarily mutually exclusive (R v Willoughby). The same applies to the aspects of manslaughter presently under consideration. Indeed care needs to be taken to avoid the risk of allowing the convenience of addressing the different circumstances in which manslaughter may arise to be converted into a compartmentalised, mutually isolated series of offences each inconveniently described by the same word, “manslaughter”.

Miller’s duty to act arose after he fell asleep in a squat while holding a lighted cigarette. He woke up and found that his mattress was smouldering. He left the room in which he had been asleep and went back to sleep in an adjoining room. He wholly ignored the smouldering mattress. The house caught fire. He was convicted of arson. In the House of Lords argument ranged over whether his omission to act engaged what was described as the “duty theory” espoused by Professor J.C. Smith or whether his reckless omission to rectify the consequences of his earlier unintended act attracted the “continuing act theory” supported by Professor Glanville Williams. It was submitted that there was no liability in criminal law for an omission unless there was a legal duty to act imposed by common law or by statute, and that no statutory provision imposed a duty neglect of which involved criminal liability, and no common law duty to extinguish an accidental fire or fire innocently started had previously been “declared”.

The decision of the House of Lords was expressed in the single opinion of Lord Diplock. Both theories, he said, led to an identical result. The “continuing act” basis for liability was not disavowed, but the duty theory was adopted only on the basis that it was easier to explain to a jury, provided the word “responsibility” rather than “duty” was used. In fact, the issue has continued to be addressed in the context of “duty” rather than responsibility, and we shall continue to do so. More important, however, Lord Diplock observed that he could see:

The mens rea necessary for arson was, and thereafter the analysis focussed on, recklessness. But the reasoning in the decision does not exclude liability where a different mens rea is required. And if, for example, the result of the fire in Miller had included the death of a fellow squatter, it appears to us that Miller would properly have been convicted of manslaughter by gross negligence as well as arson. (R v Willoughby)

Adomako was an anaesthetist and the deceased was his patient. He plainly owed him a duty of care. Lord Mackay of Clashfern LC in the only speech, expressed the opinion that:

Our attention was drawn to a number of subsequent authorities. In R v Khan and Khan, unreported, 18 March 1998 a young woman was supplied by the appellants with heroin. This was probably the first occasion on which she had used heroin. She took 10 times the recommended therapeutic dosage and twice the amount likely to be taken even by an experienced user of heroin. She became “obviously very ill”. She needed medical attention. The appellants, who were drug dealers, left her where she was and did nothing to assist. On the next day they returned and found that she was dead. If she had received medical attention she would probably have survived.

The jury was directed that they could consider a manslaughter verdict on the basis of omission. This could arise only if the appellants had set in train “a chain of events” which gave rise to a risk of harm to the deceased. The relevant act was the supply of heroin to her. The second necessary ingredient was knowledge or awareness of the obvious risk that, having taken the heroin, the deceased would or might be harmed, and that they deliberately took no steps to rectify it. The effect of the direction was “to extend the duty to summon medical assistance to a drug dealer who supplies heroin to a person who subsequently dies”. This court held that that might be correct, (sed quaere today, in the light of Kennedy (No 2)) but the issue needed to be closely addressed with the jury. The summing up in relation to manslaughter by omission was flawed. The convictions were quashed. The issue which arises in the present appeal was not directly addressed, although impliedly at any rate it appears that the court would not have rejected criminal liability on this basis.

R v Sinclair, Johnson and Smith raised similar issues. For these purposes the detailed facts need no narrative. Johnson’s conviction for manslaughter was quashed on the basis that his conduct had not demonstrated a “voluntary assumption of a legal duty of care”. What he had done was rather “a desultory attempt to be of assistance”. The facts were not capable of giving rise to a legal duty of care in his case. Sinclair, however, was in a different position. He was a close friend of the deceased. They lived together, almost like brothers. Sinclair paid for and supplied the deceased with the first dose of methadone and helped him to obtain the second dose. He knew that the deceased was not an addict. He remained with the deceased throughout the period of his unconsciousness. For a long time he was the only person who was with him. On this basis there was material on which the jury, properly directed, could have found that Sinclair owed the deceased a legal duty of care. That accords with the present case.

In R v Willoughby the appellant was convicted of manslaughter on the basis of arson. He owned some premises which he decided to destroy by fire. He recruited a man called Drury to help him set fire to the premises. In an explosion the premises collapsed and Mr Drury died. The court accepted that a duty to look after the deceased did not arise merely because the appellant owned the premises which collapsed and in which he was killed. But that fact, taken together with the additional facts that the destruction of the premises was for his financial benefit, that he enlisted the deceased to take part, and that his role was to spread petrol inside the premises, were sufficient, “in conjunction” to be capable of giving rise to a duty of care.

In R v Wacker the appellant’s convictions for manslaughter arose from the horrific deaths of 58 illegal immigrants hiding in a container loaded on to a trailer. The appellant was the lorry driver. It was suggested that he owed no duty of care to any of the deceased because they were parties to the same illegal purpose. The court had “no difficulty in concluding that…the appellant did voluntarily assume the duty of care for those in the container”, and he was aware that “no one’s actions other than his own could realistically prevent (them) from suffocating to death”. The appeal was dismissed on the basis that, once the jury decided that the appellant knew about those travelling in the container, it was a very plain case of gross negligence manslaughter.

These authorities are consistent with our analysis. None involved what could sensibly be described as manslaughter by mere omission and in each it was an essential requirement of any potential basis for conviction that the defendant should have failed to act when he was under a duty to do so. 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.

When directing the jury as to the constituents of manslaughter by gross negligence, the judge prepared a detailed note for the jury. He summarised the propositions in four questions.

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

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

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?”

In his summing up the judge emphasised that the prosecution case against the appellant was based “solely” on her omission “to summon medical help when Carly…was suffering from a heroin overdose”, and that the negligence alleged by the prosecution was not any positive act but omission, taking this form. He directed the jury that before they could convict on manslaughter by omission, “there must be a pre-existing duty to act”.

The judge told the jury that he would direct them “as to the circumstances in which such a duty can arise as a matter of law” but it would be for the jury to decide whether, on the facts they found, either or each of the defendants owed such a duty towards the deceased. In the case of the appellant he directed the jury that as a matter of law the blood relationship between the appellant and her half sister, who was a minor, did not “of itself” give rise to a duty of care. He then directed the jury that they had heard that the appellant

In relation to the circumstances in which a duty of care might arise in this case, these observations must be seen in their context, which is that the only issue of fact which the jury had to decide was the supply issue. Unless the jury was sure of this fact, the remaining undisputed areas of appellant’s involvement (summarised at paragraph 12) would, on the judge’s directions, have been insufficient for the purposes of gross negligence manslaughter. Without her involvement in the supply of heroin, the jury was directed that there was no duty on the appellant to act even after she became aware of the serious adverse effect of the drug taking on Carly. If on the other hand she was so involved, that fact, taken with the other undisputed facts would, and on our analysis of the relevant principles did give rise to a duty on the appellant to act. In law the judge’s directions about the ingredients of gross negligence manslaughter, as applied to this case, were correct.

We would merely record that the judge’s direction that a duty to act did not arise from a voluntary assumption of risk by the appellant may have been appropriate in this case, but it would not be of universal application where, for example, a voluntary assumption of risk by the defendant had led the victim, or others, to become dependent on him to act.

The authorities in relation to this question have been compendiously collected in an illuminating analysis by Jonathan Herring and Elaine Palser entitled The Duty of Care in Gross Negligence Manslaughter [2007] CLR 24. We shall not recite them in this judgment. The thesis is that the current law is unclear. The authors suggest that there are three possible solutions to the question whether the judge or the jury is responsible in an individual case for deciding whether the defendant owed a duty of care to the deceased. They are:

We agree that there is an inconsistency between the authorities, and the court as presently constituted must address and resolve them.

The starting point is to reflect on first principles. Subject to any statutory exceptions, in the criminal trial decisions of fact are the exclusive responsibility of the jury and questions of law are for the judge. In principle therefore the existence, or otherwise, of a duty of care or, we would add, a duty to act, is a stark question of law: the question whether the facts establish the existence of the duty is for the jury.

In Adomako the essential question related to gross negligence in the context of the professional care of an anaesthetist for his patient during the course of an operation. The duty was plain on ordinary principles of law. It was argued on behalf of the appellant that the jury should have been directed that they had to be satisfied that the defendant owed a duty of care to the deceased. That submission is not directly addressed in the opinion of Lord Mackay of Clashfern LC who observed:

Following Adomako, the existence or otherwise of a duty of care, and its nature, was closely addressed in Wacker, where it was argued that the application of the “ordinary principles of the law of negligence” in their full rigour extinguished the duty relationship which would otherwise have been owed by the driver of the lorry to those travelling within the container. The court was unimpressed with the submission that all the wider manifestations of tortious liability for negligence should apply to gross negligence manslaughter, but Wacker confirmed, if authority were needed for this purpose, the plain fact that in the context of the existence of a duty of care or duty to act there is, for the reasons given earlier in this judgment, a close correlation between the civil and criminal law, and that in relation to the question whether a duty of care or duty to act is owed by one individual to another, the question is a question of law.

In Willoughby the court directly addressed what was said to be a “conflict” between the authorities on the question whether the judge or jury should decide whether such a duty existed. It was held, after examining the words used by Lord Mackay in Adomako that this issue, as well as the issues of breach of duty and assessment of criminality, were matters for the jury.

We are troubled by this conclusion. It depends on the view that this was indeed the effect of Lord Mackay’s observations in Adomako. We are unable to agree that this interpretation is correct. It was suggested in Willoughby that Lord Mackay’s use of the words “the jury must go on” carried the clear implication that the existence or otherwise of a duty of care would usually be a matter for the jury. However it is plain that Lord Mackay was anxious to avoid over elaboration, and we find it difficult to agree that his use of colloquial language (“the jury must go on”) was intended to bear the weight laid upon it by Willoughby. Our view is reinforced by Lord Mackay’s later observation that “the task of trial judges in setting out for the jury the issues of fact and the relevant law in cases of this class is a difficult and demanding one”.

In our view if Lord Mackay had been intending to depart from what we have described as first principles he would have said so and explained why. Moreover, although we agree that before a conviction can be returned the jury must indeed be sure that the defendant owed the necessary duty of care, this begs the question whether the conclusions of the jury should follow on the basis of their findings of fact or whether the jury is required or indeed entitled to make a decision of law. Notwithstanding the terms of the judgment, in his valuable commentary on Willoughby at [2005] CLR 390 at 392, Professor Ormerod suggests that “the present decision does not relegate the duty question to one of fact. It remains a question of law, and the jury are to be directed on what the law is – i.e. whether a duty exists if they find certain facts to be established”. His reasoning is persuasive, and consistent with principle.

In some cases, such as those arising from a doctor/patient relationship where the existence of the duty is not in dispute, the judge may well direct the jury that a duty of care exists. Such a direction would be proper. But if, for example, the doctor were on holiday at the material time, and the deceased asked a casual question over a drink, it may very well be that the question whether a doctor/patient relationship existed, and accordingly whether a duty of care arose, would be in dispute. In any cases where the issue is in dispute, and therefore in more complex cases, and assuming that the judge has found that it would be open to the jury to find that there was a duty of care, or a duty to act, the jury should be directed that if facts a + b and/or c or d are established, then in law a duty will arise, but if facts x or y or z were present, the duty would be negatived. In this sense, of course, the jury is deciding whether the duty situation has been established. In our judgment this is the way in which Willoughby should be understood and, understood in this way, no potential problems arising from article 6 and article 7 of the ECHR are engaged.

This conclusion seems to us to accord with the principles which would obtain if, in the extremely unlikely event of an order for trial by jury, the issues arose in a civil action. The current edition of Halsbury’s Laws of England, Negligence (volume 33) para 685 addresses the functions of judge and jury in stark terms.

We also note for present purposes the provisions of the Corporate Manslaughter and Corporate Homicide Act 2007 which are concerned with gross breaches of a “relevant duty of care” owed to the deceased. Section 2(5) provides:

In our judgment the jury should not have been left to decide the question whether the appellant owed a duty of care to the deceased. The judge is not to be criticised for doing so. He was following Willoughby as it was commonly understood.

The important question however is whether his direction renders the conviction unsafe. It does not. On our analysis there was a plain case to answer. On the facts actually found by the jury on the supply issue, and the undisputed facts, in our judgment the appellant was under a plain and obvious duty to take reasonable steps to assist or provide assistance for Carly. The jury were sure, both in law and in fact on this point: so, as a matter of law, are we. The fact that the jury was sure as a matter of law may help to reinforce our conclusion, but in the ultimate analysis is irrelevant to it. The remaining ingredients of the offence were proved. Accordingly this appeal against conviction will be dismissed.