Rose v R (Rev 1)

Facts

The defendant, an optometrist, examined a young boy in 2012 and did not carry out a particular check on the back of his eyes that would have revealed signs of raised pressure inside his head. The boy had a serious condition which was not detected and later died. The prosecution said that her failure to examine properly was grossly negligent.

History

The defendant was convicted of gross negligence manslaughter by a jury after a trial in the Crown Court. She appealed against conviction.

Issue

What the prosecution must show about the foreseeability of the risk in gross negligence manslaughter, in particular whether it is a risk of death or of serious injury, and at what time and on what knowledge it falls to be assessed.

Held

Appeal dismissed and the conviction upheld. The elements laid down in Adomako [1995] 1 AC 171 and Misra [2004] EWCA Crim 2375 were restated and applied.

Ratio

• Gross negligence manslaughter requires a duty of care, a breach of it, a serious and obvious risk of death at the time of the breach, and a breach which causes the death and is so bad as to be judged criminal by the jury.
• The risk which must be foreseeable is a risk of death, not merely of serious injury, and it must be serious and obvious by the standard of a reasonable person in the position of the defendant at the time of the breach.

Key reasoning

• The court reviewed the authorities from Bateman (1925) 19 Cr App R 8 through Adomako to Misra and confirmed that the test is objective and does not depend on proof that the defendant herself recognised the risk.
• The question of foreseeability is a matter of the facts reasonably knowable at the time of the breach, so that the defendant cannot escape by saying that she did not know of the danger because she failed to do the very examination designed to uncover it.
• The decision whether the conduct was so bad as to be criminal remains a question for the jury, to be answered by looking at the seriousness of the breach in all the circumstances.

Where it fits in the module

In the Homicide topic it is read with Adomako and Misra in the debate over whether gross negligence manslaughter is too uncertain, since the jury decides criminality by reference to a test that appears circular. The case shows how the courts have tried to stabilise the offence by defining the nature and timing of the risk, and it raises the question whether liability should depend on subjective awareness.

Criticisms

• The final question for the jury, whether the breach is so bad as to be criminal, is close to circular because it asks the jury to decide criminality without any standard other than its own sense of condemnation.
• Insisting that the risk be one of death rather than serious harm narrows the offence but makes the line between a serious and an obvious risk of death and a lesser risk difficult to draw in medical and professional cases.
• An objective test that does not require awareness of the risk makes a professional who has made a negligent judgment liable for homicide, which many regard as out of proportion to their moral fault.