Part 2: I made a terrible mistake
In this second blog I analyse the recent Court of Appeal (CA) decision in R v Honey Rose  EWCA Crim 1168 (the optometrist case ), and ask at what point does civil liability for clinical negligence resulting in death cross the threshold into criminal liability for gross negligence manslaughter (GNM) deserving punishment and stigmatic moral condemnation? The Rose case and an earlier case of R v Rudling  EWCA Crim 741 (the GP case) cited in it and also covered in this blog, highlight a number of practical and theoretical difficulties with this broadly defined offence. It prompts us to ask what are the limits of the criminal law?
Consider first the facts in each case (extensively set out below) and ask yourself did either healthcare professional deserve to be criminally prosecuted for the death (in both cases) of a child? Both children had a serious but undiagnosed medical condition. Had it have been spotted, appropriate medical intervention would have taken place and death would have been avoided. Both cases were prosecuted on the bases of an omission amounting to a breach of the duty to care. To err is to be human but, as we know, medical mistakes can be costly in terms of human life. The factual context of each case is important to (a) understand why the Crown Prosecution Service (CPS) chose to exercise discretion to bring a prosecution and (b) why the CA came to the same conclusion in each case and reasoned as it did. Every prosecution and conviction for GNM is fact-specific. The offence covers varying degrees of culpability from downright contempt for human life to gross negligence.
R v Rudling  EWCA Crim 741
Dr Rudling was a GP (no doubt a very busy and dedicated GP). The victim in this case was Ryan Morse (aged 13). It transpired that Ryan had been suffering with undiagnosed Addison’s disease, a condition which affects the adrenal gland and which is rare in a child. The symptoms of the disease, especially in the early stages, are non-specific and include fatigue, weakness, abdominal pain, vomiting and weight loss. It becomes life-threatening in its acute stage but even at that stage the condition can be stabilised with prompt medical intervention.
In the summer of 2012, Ryan began to suffer from tiredness, aching legs and sickness. He was taken to his GP’s surgery by his mother on 20th July 2012 and diagnosed with having a viral infection. His symptoms persisted and his skin also showed signs of darkening pigmentation. He was seen by Dr Rudling in early November 2012 when blood tests were ordered. He was seen again by the same doctor in late November. She concluded that the blood tests suggested a virus but were otherwise unremarkable. Dr Rudling ordered further blood tests and a review three weeks later.
On 6th December 2012, Ryan’s mother was called to collect him from school as he complained of feeling ill, shaking and being sick. Ryan continued to suffer with dizziness, diarrhoea and headaches and was delirious at times with a temperature into the afternoon and evening. His mother thought he had picked up a sickness bug at school. On Friday, 7th December 2012, she rang the GP’s surgery and the receptionist made a note for the doctor to contact here: “please can you ring/advise re vomiting bug and temperature”. The prosecution case was based on two subsequent telephone conversations between Ryan’s mother and two different doctors at the surgery on this day. The first conversation was with Dr Thomas who, having studied Ryan’s notes asked Ryan’s mother (via the receptionist) to bring him to the surgery. Mrs Morse said she could not because he could not walk and was complaining about his legs. Dr Thomas rang Ryan’s mum at 8:45 a.m and after discussing his recent symptoms advised it was necessary to reduce Ryan’s temperature. She recommended soluble paracetamol and said that if Ryan did not improve within two hours he should be seen. Ryan’s mother rang the surgery again at 5:45 p.m telling the receptionist she needed to speak to a doctor as she was very worried having noticed, when cleaning up Ryan after another bout of diarrhoea, that his genitals had turned black.” Mrs Morse was put through to Dr Rudling. There was a dispute about precisely was said during this conversation. Dr Rudling said she was told about Ryan’s symptoms of diarrhoea and vomiting and the darkening of the colour of his genitalia. Mrs Morse was adamant that she had in fact told Dr Rudling that Ryan’s genitals had turned black and that she wanted the doctor to come and see him. Dr Rudling recommended Ryan was brought into the surgery on Monday morning to be examined by herself or a male GP. She was of the view that any discolouration of his genitals was probably hormonal. Ryan never made it in to the surgery. He died over the weekend.
Ryan’s death was described in the CA’s judgment as “an unmitigated tragedy for him, his family and all who loved him.” If only Dr Rudling had made a home visit. It was a fateful error of judgement on her part.
A criminal charge of gross negligence manslaughter (GNM) was brought against Dr Rudling. At trial, the judge upheld a defence submission of no case to answer which the CA (on appeal by the prosecution) concluded had been correct. The trial judge it seems was greatly influenced by the expert evidence of a Dr Peter (the judgment does not make clear which side called this witness) who was of the opinion that a face to face assessment of Ryan would have been needed in order fully to assess the risk. The trial judge ruled that at the time of the second telephone call a reasonably prudent doctor would not have concluded that there was an obvious risk that Ryan might die.
R v Honey Rose  EWCA Crim 1168
Rose was the optometrist on duty at a branch of Boots the chemist on 15th February 2012 when she was asked to conduct a routine eye examination of Vincent Barker (aged 7). She recorded the reasons for the visit as: “routine check / had few H/ache over Xmas 2011, but now all gone.” Vincent had been examined at the same Boots branch in 2010 and 2011. His February 2012 examination showed no issues of concern and his next appointment was scheduled in 12 months. He died five months later from acute hydrocephalus (a build-up of cerebrospinal fluid within the normal ventricles of the brain because its normal outlet had been blocked). Hydrocephalus is treatable with surgical intervention. Expert opinion established that Vincent’s condition was treatable up until the point of his acute deterioration and death on 13th July 2012. Vincent was unusual in that he did not present with symptoms associated with hydrocephalus (vomiting and headaches) until the build-up of fluid in his brain became acute. If, as should have happened, the condition had been spotted during his eye examination on 15th February 2012, he could have been referred to a specialist for life-saving treatment.
An optometrist has a statutory duty of care to examine the internal eye structure as part of a routine eye examination, the purpose of which is to detect signs of abnormality or disease, including life threatening problems evident from the optic nerve. An examination of the back of the eye is normally carried out with an ophthalmoscope or a ‘slit lamp’ which allows the optometrist to obtain a very good view of the optic disc. Another means by which the condition of the eye can be checked is to review ‘fundus’ photographs, 2D, images taken by a retinal (fundus) camera. The fundus image is however limited to the central 45 degrees of the eye. The fundus images of Vincent’s eyes were taken by an optical assistant at Boots and would have been recorded on their computer system ready for review by the optometrist during the examination.
Vincent’s examination records were sent for review by a consultant paediatric ophthalmologist. He concluded that the 2011 examination of Vincent’s eyes gave no cause for immediate concern and showed Vincent’s eyes were healthy and all parameters were within normal limits. However, the retinal images taken of the back of Vincent’s eyes in February 2012 were remarkably different from those taken in 2011 and showed significant congestion of the veins and swelling of the optic nerve which necessitated an immediate referral.
Prosecution expert evidence against Ms Rose was fairly damning. It was agreed between the experts that a competent optometrist would know the significance of papilloedema (swelling of the optic nerve) and would immediately refer the case on to others. If an optometrist was unable to view the back of the eye, it would always be noted. It was the responsibility of the optometrist to view the correct retinal images and, in the absence of a full examination, the patient should also have been asked to return for a further eye examination within a much shorter period. One expert gave evidence that a decision not to carry out ophthalmoscopy with no justification would be a “fairly massive failure” of an optometrist’s duty of care and that a decision not to look at a retinal image for no good reason in the absence of ophthalmoscopy would also be a “fairly massive breach” of her duty of care.
It is the simple fact that had Rose performed her statutory duty to the required, professional standard, Vincent would still be alive. How could she have missed something so seemingly obvious? In her police interview, when shown the 2012 retinal images for Vincent, Rose said she had never seen the images before and that even an unqualified person could tell that the optical disc was not normal in Vincent’s case. She concluded that when she had carried out the eye examination in 2012 she must have been looking at the retinal images from his 2011 examination.
In her evidence at trial, Rose said Vincent was uncooperative during the examination when she tried to use the ophthalmoscope. She thought he might be photophobic so she used the ‘fundus’ photograph instead which she had viewed in the pre-screening room as she could not view the images on her computer screen. She thought she might have been shown the ‘fundus’ photos of another patient as there had been frequent problems with the computer system and retrieval of retinal images in the branch. There was little independent evidence to support this.
The legal issues in the Rose case
The prosecution’s case was that she was guilty of gross negligence manslaughter by omission. Her breach of duty was the failure to examine the optic nerve and to consequentially make an urgent referral. Based on an objective assessment, it was reasonably foreseeable to the reasonably prudent optometrist that her breach of duty at the time the eye examination would have resulted in awareness of a serious and obvious risk of death and the consequent need to urgently refer.
At the close of the prosecution’s case, the defence made a submission of no case to answer on the basis that GNM could not be established on the facts or in law. The defence contended that the breach of duty was the failure to make an urgent referral. An essential element of GNM is that a reasonably prudent person in the accused’s position would have foreseen (appreciated), at the time of the breach, that there was a serious and obvious risk of death. However, a reasonably competent optometrist (in this case) would only have been fixed with awareness of a serious and obvious risk of death if they had carried out ophthalmoscopy and/or reviewed the patient’s fundus images. The test of foresight, contended the defence, was subjective in the sense that it depended on the exact knowledge of Ms Rose at the time of the breach. It was not reasonably foreseeable to a reasonably competent optometrist that the negligent act of not examining the back of the eyes would carry an obvious and serious risk of death in this case. The same line of reasoning (successfully advanced in the Rudling case) was rejected by the trial judge in Rose’s case.
The trial judge ruled that test was objective and based on what would have been reasonably foreseeable to the reasonably prudent optometrist who would have complied with their statutory duty to examine the internal eye. He reasoned thus: “….there is no principled distinction to be drawn between the case of the optometrist who conducts the internal investigation negligently and the optometrist who is so negligent that he or she does not even attempt an internal investigation. In each case the prudent observer would appreciate the risk of death because the prudent observer would or should have known that it would be shown on the basis of a competent internal investigation. I can see no reason why the criminal law should become irrelevant where the only reason why the serious and obvious risk is not obvious to the Defendant is the Defendant’s breach of duty to the victim. That is to my mind most clear when, as here, the purpose of the duty is to detect signs of injury, disease or abnormality which should have informed the Defendant’s thinking and appreciation of risk…….” (Emphasis added).
The jury went on to convict Ms Rose. Upholding her appeal and quashing her conviction, the CA concluded that the judge should have upheld the defence submission of no case to answer. The key issue in both cases was the correct test for the assessment of reasonable foreseeability of an obvious and serious risk of death. Analysis of the CA’s judgment follows, but firstly a reminder of the law on GNM.
The definition of GNM
Gross negligent manslaughter is a very broadly defined offence based on a wide spectrum of fault ranging from calculated, advertent risk-taking to inadvertent critical lapses in judgment. Both cases graphically illustrate the very real concerns with the current definition of GNM, with particular reference to what Lodge (1) calls the ‘lower limits of manslaughter.’
GNM was loosely defined by Lord Mackay in the medical manslaughter case of R v. Adomako  1 AC 171
“…in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that it is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.” (Note: the portions of the speech in bold are emphasised in the judgement in Rose).
GNM is a jury defined offence. It is accurately described by Quick (2010) (2) as a one size fits all ‘offence which can sometimes result in a bad fit. The language used by Lord Mackay lacks precision for such a serious crime. Both assessment of the breach of duty and it ‘badness’ requires ‘consideration’ of the risk of death involved. Does Lord Mackay mean there must be foresight of an obvious risk of death for the offence to be made out and if so by whom? Is liability to be assessed solely on an objective basis? Slightly later in the judgement, Lord McKay suggests it is perfectly appropriate that the word “reckless” in cases of involuntary manslaughter and cites the well-known case of R v Stone and Dobinson  QB 354 as an example.
Subsequent cases have made it clear that it is not necessary for the defendant to subjectively foresee a risk of death. In Singh (Gurphal)  Crim LR 582, (where a landlord was aware that a gas fire in one of his rented properties was faulty but ignored it), the CA observed: “The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death. If you find such circumstances in the case of the defendant whom you are considering, you must decide whether what he did or failed to do was so bad that it was criminal. That of course means that the degree of negligence was very high.”
Negligence cannot therefore be ‘gross’ if the risk of death was not foreseeable to the reasonably prudent person in the defendant’s situation. But should this assessment of risk of death be made with the benefit of hindsight (but for the breach of duty)? That was the critical question in R v Rose (2017) and R v Rudling (2016). In Rose, the judge directed the jury to consider whether the risk (of death) would have been obvious to a reasonably competent optometrist with the knowledge that Ms Rose would have had if she had not acted in breach of her statutory duty to properly carry out the examination. Was this the right test or not? On appeal against conviction, the defence argued that it was not. Whilst the failure to properly examine the back of the eye was a negligent failure, given the lack of any symptoms, it was not reasonably foreseeable to a reasonably competent optometrist that that negligent act of not examining the back of the eyes would carry an obvious and serious risk of death in this case. The CA agreed and adopted the reasoning of the trial judge in R v Rudling who upheld the submission.
Crucially, at para 80, the CA observes: “The inherently objective nature of the test of reasonable foreseeability does not turn it from a prospective into a retrospective test. The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach (emphasis added). The question of reasonable foreseeability is evident from the words used, i.e. what is reasonably fore-seeable at the time of the breach (a prospective view). It is not what would, could or should have been known but for the breach of the identified duty of care, i.e. if the breach had not been committed (a retrospective view).”
At first blush, the reasoning seems flawed. The gross mistake was not to have carried out a proper medical assessment as required by statutory duty; only by carrying out a proper medical assessment would the risk of death have become obvious but without there being an obvious risk of death there cannot be any criminal liability for gross negligence manslaughter. It is a circular logic that cannot be squared. How would there ever be a conviction in such a case? The answer is that it depends on what was known by the accused at the time of the breach. Was it a grossly negligent mistake not to have carried out a proper medical assessment? Yes. But that is not enough to impute criminal liability. There must have been a risk of death arising at this point that would have been obvious to a reasonably competent practitioner. That was not evident in the case of the optometrist. The trial judge concluded it was not evident in the case of Dr Rudling although that appears to be a little less ambiguous in her case. That said, in the cold light of day, Dr Rudling’s clinical judgment was made late on a Friday afternoon based on a telephone call with imperfect information. On that basis alone, did she deserve to be indicted under the criminal law? Her clinical judgment was clearly in error but criminally so? The proverbial Christian saying of: ‘There but for the Grace of God, go I’, springs to mind. Every decision taken by a medical professional carries potential implications but to label that practitioner a killer raises serious questions about fair labelling under the criminal law. It was after all, an exercise of clinical judgment made in good faith.
R v Rose (2017) re-states the current principles of gross negligence manslaughter at para 77 of the judgement as:
(1) The offence of gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to a criminal act or omission.
(2) There are, therefore, five elements which the prosecution must prove in order for a person to be guilty of an offence of manslaughter by gross negligence:
(a) the defendant owed an existing duty of care to the victim;
(b) the defendant negligently breached that duty of care;
(c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;
(d) the breach of that duty caused the death of the victim;
(e) the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.
(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.
(4) A recognisable risk of something serious is not the same as a recognisable risk of death.
(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.
In re-stating the principles, the decision in Rose correctly restricts its application in the context of negligent medical omissions. It does so for reasons of policy which are clearly articulated by the CA at para 94 of the judgment, for had it have reasoned otherwise: “The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death.”
What are the doctrinal difficulties with the current law?
There are plenty! The jury does all the work in defining the offence. Expert evidence will be called upon to help to jury to understand what standard of care should be exercised by the hypothetical reasonable doctor or optometrist and to assist it in gauging how far below that standard the individual fell. The difficulty for the jury is that expert witnesses frequently disagree with another and sometimes overstep the mark by giving evidence on the ultimate issue (3). A further criticism is that juries do not give reasons for their decisions and ought not to be making decisions on what is essentially a question of law. The current state of the law is thus capable of leading to inconsistent verdicts.
The test in in Adomako, (the case of a hopeless anaesthetist who failed to notice that the respiratory tube had become disconnected from the patient during an operation leading to cardiac arrest) has been extensively criticised for its circularity. As Herring (4) observes , if a jury were to ask a judge: ‘How do we know if the defendant’s negligence was bad enough to be criminal? They would be told, “It is if you think it is.’ Quick (2010) states “The law effectively requires jurors to determine the parameters of the offence: it is a crime if the jury think it ought to be a crime”.
The contention that the law in this area is so imprecisely defined as to violate Article 7 of the European Convention of Human Rights. Art. 7 requires criminal laws to be knowable and clear. Under the current law in relation to GNM, the accused cannot know her conduct is criminal until the jury says it is. She therefore has no guide as to how to avoid this most serious of offences. The human rights violation based on Art 7 was rejected by the CA in R v Misra and Srivastava  1 Cr App. R. 21 (another medical manslaughter case where two senior hospital doctors failed to respond to clear warning signs of serious infection in their patient following a routine operation) which concluded that whilst the test was indeed circular, a degree of vagueness was acceptable and it was a question of fact for the jury and not a question of law. Quick (2010) is critical and asserts: ‘gross negligence manslaughter suffers from a lack of intelligent (and clear) communication that we might legitimately expect from criminal law’.
Fault (and hence moral blame) in GNM is objectively assessed. It does not require mens rea (conscious awareness and acceptance of the risk on the accused’s part). This is not to say that the defendant’s state of mind is irrelevant to an assessment of GNM (A-G’s Reference (No. 2 of 1999)  2 Cr App R 207) but awareness of risk and the decision to nonetheless unjustifiably take the risk (which is the language of subjective recklessness (R v G  UK HL 5054)), is not a pre-requisite.
There can be little doubt that on a practical level, medical manslaughter cases present difficult charging decisions for the CPS. This is highlighted in empirical research undertaken by Quick (2010) with CPS lawyers. The research revealed that ‘some prosecutors were more comfortable working with reference to subjective recklessness’. He asks: ‘Why persist with the wider term gross negligence when nobody really knows what it means or whether it constitutes sufficient moral blame for the serious crime of manslaughter.’ He also makes the point that it exposes to prosecution those who undertake ‘vital yet socially useful work, often at the mercy of moral luck.’
The decision to charge is based on an evidential test and a public interest test both articulated under the Full Test Code (5). The Code has been powerfully criticised by Quick (2006) (6) who argues the CPS should factor in the cost of the prosecution to the defendant as against what the aim of punishment would be in each given case. There can be little doubt that the prosecution of both the GP and the optometrist came at a huge professional and emotional cost to them personally (7). It should not be overlooked that a decision not to prosecute may be subject to a successful judicial review (R v DPP, ex p. Jones (Timothy)  Crim LR 858). We should not forget that a grave harm has befallen the deceased. Life was cut short. The deceased may have gone but for the family left behind there is a void and the acute emotional pain at what they see as a tragic but preventable loss of life. The need to attribute blame and to have someone or something held publicly accountable is very palpable and understandable at a human level. But, when grief fuelled emotions and anger hit the cold, hard reality of legal principles in an imprecisely defined criminal offence, whose theoretical underpinning is suspect, the outcome on all sides may well be unsatisfactory as these cases illustrate. The limits of GNM need to be more precisely defined.
Aside from the valid doctrinal issues associated with the offence there is a more fundamental theoretical issue. The decision to prosecute in each of these cases causes us to re-examine our understanding of what the true purpose of the criminal law is and to ask whether criminal liability based on inadvertent risk (negligence or objective recklessness) is ever justified. Tadros (8) maintains that the attribution of responsibility is different from criminal responsibility. It communicates in a very public sense to all involved in the criminal justice system (this includes the broader community) something about the act (or omission in this case) and the agent who performed it (or omitted to perform it). He says it is only those who have displayed a moral vice through their conduct and in their character who deserve the censure of the criminal law and the stigma of being convicted and labelled. For Tadros criminal responsibility is appropriate only when: ‘the conduct of the defendant deserves the kind of reactive attitudes that result from the label ‘criminal.’ Disapproval of an agent’s actions is much too weak to provide a proper basis for the imposition of criminal responsibility and blame and negligence is much too broad. Negligence might be attributable to a lack of skill on my part or for a whole host of reasons some of them forgivable some of them not (9) or as described by the sentencing judge in the optometrist’s case, ‘a lapse in judgment.’ In passing sentence, Mr Justice Stuart-Smith described Ms Rose as in every sense a good person and citizen, a diligent and devoted optometrist, wife and mother, who had shown deep remorse over the tragic incident.(10)
You might legitimately query what the point of punishment would be in either case we are discussing (11). Would it lead to improvements in patient safety or, as Quick (2010) believes an even more defensive culture where professionals do not feel safe to talk about and report error. These prosecutions have come against the backdrop of the Mid Stafford Hospital scandal, documented in the Francis Report (2013) (12) . In the case of Dr Rudling, her prosecution and acquittal comes at a time when GP services are under intense pressure which no sign of abating (13). There can be little doubt that mistakes, sometimes costing human life will be repeated. Is it right and indeed fair to criminally blame and punish the individual in these circumstances?
Alexander (2000) (14) describes negligence as involving inadvertence to a risk that, if averted to, would render the actor reckless. Negligence is nonculpable and, like strict liability and involuntariness, should, he says, be dropped from criminal codes as a form of criminal liability: “We are not morally culpable for taking risks of which we are unaware…At any point we are failing to notice a great many things, we have forgotten a great many things, and we are misinformed or uniformed about many things. Any injunction to notice, member, and be fully informed about anything that bears on risks to others is an injunction no human being can comply with, so violating this injunction reflects no moral defect. Even those most concerned with the well-being of others will violate this injunction.”
An ‘objectivist’ would say well you should have foreseen the risk, but what if the truth is you simply did not? There was no conscious awareness on the part of either the GP or the optometrist of the risk of death. They made no conscious choice to cause or risk harm. It never crossed their minds. There was nothing callous, nothing malicious and no wilful blindness on their part. In short, there was no moral vice on which to peg criminal responsibility and yet they were both charged.
Quick (2010) rightly contends that the line between subjective recklessness and gross negligence has always been blurry and in appropriate cases the conduct in question can properly be classed as both grossly negligent and reckless. But he says that is not true of those cases on the cusp: “It is here that the wider term gross negligence risks the prosecution of weak cases. Having recklessness as the bottom line would offer some protection against this.” It is submitted that both these cases were on the cusp.
As Lodge (2017) robustly argues gross negligence manslaughter needs to be re-defined, to require subjective recklessness as to the risk of death: “…if one subscribes to the subjectivist view of criminal liability defended here–that conscious choices to harm or risk harm to others are the benchmark of criminal liability for serious offences–then the distinction between conscious risk-takers (who it will be argued may be legitimately punished) and inadvertent risk-takers (in respect of whom the imposition of criminal liability is more contentious) becomes central.” Tadros asks (15): “Why should recklessness be the appropriate concept to use in criminal damage for example, but not in manslaughter?”
A further pertinent observation is the fact that had either the GP or optometrist’s negligent omissions left either victim seriously disabled there would be no criminal liability for any offence. Gross negligence is only a requirement of manslaughter. How does this make for coherent law? A resulting death, it seems, makes all the difference. Lodge (2017), is highly critical of the current law in that it prioritises consequences over culpability: “the current offence formulation prioritises the resulting harm (death) over the apposite apportioning of blame on the basis of a defensible theoretical rationale. The consequence of harm alone does not compel a criminal conviction (16) and the unprincipled privileging of harm over culpability has resulted in a poorly defined serious homicide offence which leaves much to the discretion of the jury, is ‘incapable of any objective and fair measurement’ (17) and needs further judicial or legislative attention.”
The decision in Rose is to be welcomed. It tightens up an important aspect of the foreseeability test but it does not answer the more systemic issues with the offence. I would go as far as to say that the judgment in Rose imputes a degree of recklessness into the test. The ‘grossness’ of the breach is much more easily assessed by reference to indifference to risk where it can be proved that D has knowledge of the known facts or risks. Those who are firmly wedded to a subjectivist principle, like me (that I should only be criminally liable for events or consequences which I intended or knowingly risked) echo the calls for this serious homicide offence to redefined in terms of subjective recklessness to make it just, transparent and principled.
1. Lodge, A. (2017) Gross Negligence Manslaughter on the Cusp: The Unprincipled Privileging of Harm over Culpability JCL 81 (125)
2.Quick, O. (2010) ‘Medicine, Mistakes and Manslaughter: A Criminal Combination’? 69 Cambridge Law Journal 11.
3.R v David Sellu  EWCA Crim 1716
4.Herring, J. (2015)-Criminal Law- Text Cases and Materials (OUP: p294)
6. Quick, O. (2006) ‘Prosecuting Gross Medical Negligence Manslaughter, Discretion and the Crown Prosecution Service’ Journal of Law and Society 33:421
7. For a powerful indictment of GNM: see the strongly worded, personal account of the effect of conviction Dr David Sellu, for medical manslaughter in 2013 and the CA’s later decision to quash it: http://publishing.rcseng.ac.uk/doi/full/10.1308/rcsbull.2017.104
8.Tadros, V. (2005) ‘Criminal Responsibility’ (OUP)
9.See the media accounts of the restaurant owner who put profit above human safety. He was jailed for six years for failing to stop using a nut paste in his curries which contained peanuts in preference to a more expensive almond paste which did not contain peanuts. It led to a customer losing his life through a severe allergic reaction. The restaurant owner was on notice as a previous customer had suffered a similar, though non-fatal reaction to a curry http://www.bbc.co.uk/news/uk-england-36360111
11.For a medic’s perspective on this, see http://trendsinmenshealth.com/wp-content/uploads/sites/13/2014/11/3.-Medical-mistakes.pdf (accessed 9/8/2017) and
14.Alexander, L (2000) Insufficient Concern: A Unified Conception of Criminal Culpability, 88 Cal. L. Rev. 931
15.Tadros, V. (2008) The Limits of Manslaughter in C Clarkson and S Cunningham (eds) Criminal Liability for Non-Aggressive Death (Aldershot Ashgate)
16. (Lodge cites Husak, D. Negligence, belief and Criminal Liability: The Special Case of Forgetting’ (20110 5 Criminal Law and Philosophy 199.,
17.Quick (2006) ‘Prosecuting Gross Medical Negligence Manslaughter, Discretion and the Crown Prosecution Service’ Journal of Law and Society 33:421