Omissions Liability for Homicide Offences: Reconciling R v Kennedy with R v Evans

Abstract

R v Evans [2009] EWCA Crim 650, [2009] 1 WLR 1999 holds that if a person merely facilitates another to create a dangerous situation for himself, that person may be held criminally liable for a homicide offence if that self-endangerment results in death. Evans's sister made an intervening choice to self-inject and it was her independent self-injection that was the direct cause of the dangerous situation. Evans's pre-existing duty of care was grounded on her act of supply and her awareness of the fact that her act of supply had facilitated the creation of a dangerous and life-threatening situation. Evans did not create the dangerous situation, but rather she merely made an indirect causative contribution to the dangerous situation. Furthermore, if she had merely supplied the drugs and had left the scene, and therefore had remained ignorant of the fact that her act of supply had resulted in a dangerous overdose situation, her act of mere supply per se would nothave been sufficient for a conviction of gross negligence manslaughter. This commentary provides a critique and sets out what that law ought to be when an agent intervenes and makes a fully independent choice to self-harm by injecting drugs supplied by another into her own arm.