The standard required to prove gross negligence manslaughter is, rightly, set extremely high. The recent decision in Rose v. R [2017] EWCA Crim illustrates why this is so and demonstrates how important it is that the public fully understand the purpose and limits of the criminal law in cases of preventable death.

Conviction of Honey Rose

The facts of Vincent Barker’s tragic death are relatively straightforward. In February 2012, Vincent (then aged seven) visited Boots Opticians in Ipswich. He was seen by Honey Rose, a qualified optometrist, who noted no concerns and recommended that he return in 12 months.

In July 2012, Vincent was taken suddenly and seriously ill. He was rushed to hospital but died the same evening as a result of longstanding chronic hydrocephalus (a build-up of fluid in the brain).

Expert opinion concluded that Vincent’s condition could have been successfully treated had it been detected by Ms Rose. Further, that she had a statutory duty to carry out examinations which should have identified a significant symptom and resulted in an urgent hospital referral.

During her trial for gross negligence manslaughter in July 2016, the prosecution asserted that by failing to carry out the examinations, the foreseeable consequence of which was that Vincent did not receive lifesaving treatment, Ms Rose breached her duty of care to a criminal (“gross”) extent.

The defence argued that as Ms Rose had not actually known of the significant symptom, she could not have appreciated that there was a serious and obvious risk of death, as required by R. v. Rudling [2016] EWCA Crim 741.

Having dismissed a submission of no case to answer, the trial Judge directed the jury to consider whether it was reasonably foreseeable that Ms Rose’s breach carried a serious and obvious risk of death on the basis of what she should have known had she not breached her duty (i.e., if she had carried out the examinations and observed the relevant symptom).

The jury found Ms Rose guilty and she was sentenced to two years imprisonment, suspended for two years, an unpaid work order and a supervision order.

Court of Appeal

On appeal, Ms Rose submitted that the finding of a case to answer and the jury direction had been incorrect. The prosecution asserted that they had been correct and, in particular, it was wrong that Ms Rose should be allowed to rely on her own breach of duty to escape criminal liability.

The court allowed the appeal, with the judgment of Sir Brian Leveson P concluding:

77(3) The question of whether there is a serious and obvious risk of death must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty (i.ee, when Ms Rose decided, for whatever reason, not to carry out the examination).

77(4) A recognisable risk of something serious is not the same as a recognisable risk of death.

77(5) A mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death: an obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.

Further, that “none of the authorities suggests that, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court is entitled to take into account information which would, could or should have been available to the defendant following the breach of duty in question.”

The judgment concluded that the prosecution’s case, at its highest, was that Ms Rose should have realised that by failing to carry out the examination, she might miss symptoms indicating a life-threatening condition. This did not equate to a serious and obvious risk of death and was simply insufficient to found a case of gross negligence manslaughter. The conviction was quashed.

What Does Rose Mean for Gross Negligence Manslaughter?

Although it is by no means new law, in analysing the Rose decision, the CPS will only be too aware of the recent failed prosecutions of Dr Errol Cornish (trial halted as no case to answer in January 2016) and of Dr David Sellu (conviction quashed in November 2016, albeit only after completing a 15 month sentence).

The terminating ruling in Cornish was particularly damning, with Mr Justice Coulson describing the case as “as far removed from a gross negligence manslaughter case as it is possible to be”. Unfortunately for Ms Rose, proceedings against her were already well advanced by the time of the Cornish ruling.

In the Rose judgment, Sir Brian emphasised the overriding feature of all gross negligence manslaughter cases; that the prosecution burden is huge. In quashing the conviction, the Court of Appeal undoubtedly intended to shore up a potential floodgate which would have resulted in professionals being held to the standard of what they ought to have known, which might include rare and perhaps unforeseeable facts. The consequences for both healthcare professionals (who would inevitably adopt a more defensive approach to care) and the criminal justice system were serious indeed.

This should not be taken to mean that professionals are now free to be negligent, believing that the less they investigate, the less likely they are to face criminal liability. In particular, riskier environments will provide a lower threshold for breaches carrying an obvious and serious risk of death. The accident and emergency consultant who omits vital tests on a deteriorating patient will be held to a higher standard than the optometrist at a routine check.

Why Does this Happen?

Part of the answer may be an understandable reluctance to disappoint bereaved families. Where clear failings can be identified as leading to an avoidable death, it must be especially difficult for prosecutors to justify not seeking individual accountability. However, this is not a factor which can be taken into account when considering whether there is sufficient evidence to provide a realistic prospect of conviction, nor should it be given undue weight in the public interest test. No amount of public interest is sufficient to compensate for a lack of evidential prospects, nor can a series of individual failings be pooled and somehow allocated to one defendant such that a prosecution can be justified.

The challenges of these three cases should be borne in mind by investigators and prosecutors during future such decisions on high profile cases. The recent rise in prosecutions and penalties against corporate health and safety offenders appears to have done little to dampen (perhaps has even provoked) the public desire for individual punishment. Take note of the Sentencing Council’s very recent guideline consultation (July 2017) which would, if adopted, impose significantly increased prison sentences for gross negligence manslaughter, especially where aggravated by a disregard for safety linked to cost-cutting.

However, none of this changes the very clear legal tests involved. Following any fatal incident, the only way to establish whether any breach is sufficient to warrant criminal punishment is through thorough investigation and consideration of the evidence.

The Prosecutor’s Challenge

Should the evidence in a potential gross negligence manslaughter case point away from individual prosecutions, the CPS is in an invidious position. To bring no charges is to accept the consequences of disappointing, even devastating, those who have already lost so much.

The alternative is to prosecute and hope for the best. If the jury convicts, then justice has been done. If the jury acquits, then it has still been done. However, Rose, Cornish and Sellu all demonstrate the unacceptable risks of this approach. In these three cases, families have endured years of additional turmoil, only to feel let down in the final reckoning. For the public, huge expense and much-needed faith in the system has been squandered. Further, it is an abdication of the duty to make independent prosecutorial decisions for the CPS to simply offload difficult questions for Judges and juries to determine.

Tragic but unintended deaths are the most difficult for criminal justice to deal with. In a cold-blooded murder, there is no question that blame should be attributed and punishment meted out. However, gross negligence manslaughter involves a spectrum of fault and blame, which must be kept separate from the suffering of the victims. In the high profile investigations and prosecutions to come, investigators and prosecutors must keep firmly in mind the need for a rigorous assessment of evidence and robust decision making.

As the cases of Rose, Cornish and Sellu demonstrate, an ill-founded manslaughter prosecution carries many consequences. Some cases must be left for regulatory sanction rather than criminal trial and determining which ones to prosecute has always been a heavy responsibility, never more so than today.

This article was originally published in Criminal Law & Justice Weekly and can be accessed here, behind a paywall.