R v Gemma Evans
| Jurisdiction | England & Wales |
| Judgment Date | 02 April 2009 |
| Neutral Citation | [2009] EWCA Crim 650 |
| Docket Number | Case No: 2008/02597/B2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 April 2009 |
[2009] EWCA Crim 650
The Lord Chief Justice of England and Wales
Lord Justice Moore-Bick
Mr Justice Calvert Smith
Mr Justice Christopher Clarke
Mr Justice Holroyde
Case No: 2008/02597/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWANSEA
Mr Justice Lloyd Jones
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ian Murphy QC and Mr D.Ll. Thomas for the Appellant
Mr Paul Thomas QC and Mr J Hipkin for the Crown
Hearing dates : 24 th February 2009
The Lord Chief Justice of England and Wales:
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:
(a) 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;
(b) 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;
(c) 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.
Discussion
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...
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