were:
(a) Did the defendant create a dangerous situation?
(b) Did the defendant realise that he has created this dangerous situation?
If the answer to both questions is ‘yes’, the defendant is under a duty to act to rectify the situation within his power. A failure to do will be a criminally liable omission.
Miller was subsequently applied by the trial judge in the trial at first instance of R v Khan and Khan [1998] Crim LR 830 and was fully endorsed by the Law Commission in its draft Criminal Code (Law Com No 177, 1989) at clause 23. However, the Court of Appeal quashed the convictions of Khan and Khan and the draft Code has not been brought into force.
A point of difficulty arose in the law as a result of the case of R (Lewin) v DPP [2002] EWHC 1049 (Admin), where the Divisional Court held that the defendant owed the victim no duty of care in leaving his intoxicated friend in a car during extremely hot weather conditions. Such an omission led to the victim’s death. This decision did not, necessarily, conflict with the decision in Miller given that there was no evidence to suggest that the defendant knew that such a risk of death was possible. Whether Lewin would now be decided in the same way is questionable as a result of the decision in R v Evans [2009] EWCA Crim 650.
case example
Charge: Gross negligence manslaughter
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Creation of a dangerous situation and a duty to avert danger
In R v Evans [2009] EWCA Crim 650, the defendant, the half-sister of the victim, supplied the victim with heroin which she self-administered. The victim reacted badly to the drug and collapsed. The defendant failed to summon help out of fear of prosecution for supplying the drug and the victim died. The defendant was charged with gross negligence manslaughter as a result of her failure to act in contacting the emergency services.
The conviction was upheld by the Court of Appeal on the basis that the defendant had contributed to the dangerous situation through her failure to seek help or support for the victim. The dangerous situation had already been created by another through the supply of drugs; the defendant had contributed to that situation by failing to summon help. Lord Judge CJ ruled:
[F]or 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. (emphasis added)
As with Miller, the duty arose in this case as a result of the creation of, or contribution to, a dangerous situation. In supplying the drugs to the victim, Evans had set in motion a dangerous chain of events for which she was under a duty to avert, ie by calling for help. By failing to call for help or seek assistance, the defendant’s conviction for manslaughter was upheld.
One should notice immediately that the phraseology used by Lord Judge CJ in Evans differs to some extent from that of Lord Diplock in Miller. The first is identified in Table 2.8.
Table 2.8Miller and Evans
| R v Miller | R v Evans |
| Defendant is liable if he ‘does in fact create a risk’. | Defendant is liable if he ‘created or contributed to’ a dangerous situation. |
From this variation in words, Evans has been criticised by the likes of Baker (‘Omissions liability for homicide offences: reconciling R v Kennedy with R v Evans’ [2010] J Crim L 310), who argues that Evans has stretched the Miller principle to circumstances where the defendant ‘simply contributed to, rather than created, the dangerous situation’. Likewise, Ashworth (‘Manslaughter by Omission and the Rule of Law’ [2015] Crim LR 563) argues that:
Lord Judge’s extension of the Miller principle dilutes it to too great a degree, not least because ‘all kinds of background acts of facilitation’ could now be found to support a duty sufficient for manslaughter liability, expanding both the potential ambit and the uncertainty of the duty-situations.
By way of contrary argument to the above, one could argue that Evans is a natural extension of the principle in Miller and fills a void in the law left by drug-supply cases such as R v Kennedy (No 2) [2008] 1 AC 269. In Kennedy, the House of Lords ruled that the chain of causation on a charge of unlawful act manslaughter was broken where the victim, having been supplied with drugs, self-injected. Applying that to Evans, the defendant did not ‘create’ the dangerous situation – that was done by the victim when she self-injected. However, Evans could be (and was) liable if the court found that the dangerous situation was contributed to by the supply of drugs. This is an important step in the development of the law to ensure that drug-dealers are appropriately dealt with under the law.
Evans is a judgment of the Court of Appeal, whilst Miller is one of the House of Lords. It could be argued, therefore, that Evans was decided per incuriam given that Lord Judge CJ did not follow the approach adopted by Lord Diplock. Interestingly, the High Court of Australia declined to follow the approach in Evans in the case of Burns v The Queen [2012] HCA 35, when it held that the relationship of supplier of prohibited drugs and recipient did not give rise to a duty to preserve life on the part of the supplier. It does appear as though Evans is an accepted authority at this stage given that the Crown Court Compendium (at section 19-25) acknowledges the extension in Evans and includes it as part of the directions to the jury.
The second variation in the terminology is identified in Table 2.9.
Table 2.9Miller and Evans continued
| R v Miller | R v Evans |
| Defendant is liable if he ‘becomes aware’ that he has created a dangerous situation. | Defendant is liable if he ‘knows or ought reasonably to know’ that he has created/contributed to a dangerous situation. |
In Miller, the defendant’s duty to act only arose at the point that he became personally aware of the danger he had created (a subjective test). In contrast, in Evans, the Court of Appeal stated that the duty would arise when the defendant realises or should have realised that the danger was created (an objective test). Williams (‘Gross Negligence Manslaughter and Duty of Care in “Drugs” Cases: R v Evans’ [2009] Crim LR 631) makes the point that Evans has the result of allowing for the possibility of liability from a failure to act, even where the defendant did not realise the danger she had created, if a reasonable (objective) person would have realised such danger. Further, Ashworth (‘Manslaughter by Omission and the Rule of Law’ [2015] Crim LR 563) argues that the expansion of the duty into a state of mind where the defendant ought to have known about the danger goes ‘too far’ and reasons that such a ruling may offend the requirement for certainty of the criminal law in Article 7 of the ECHR. Had the case of Lewin (above) been decided post-Evans, it is likely that the defendant would have been charged with a criminal offence given that he should have realised that he had created a dangerous situation. In R v Bowler [2015] 2 Cr App R (S) 307, the victim had been asked to be mummified as part of an unusual sexual activity. The Court of Appeal noted that a duty to act arose because the victim ‘was left helpless and in a situation which was obviously dangerous’. Use of ‘obviously dangerous’ could indicate a preference towards an Evans interpretation