Rowley, R (on the application of) v DPP

Gross negligence manslaughter requires proof of a duty of care, breach, causation of death, a serious risk of death, and conduct so bad as to amount to a criminal act or omission. The test is objective. Subjective recklessness is not required, but the defendant’s state of mind and all surrounding circumstances may be relevant when assessing criminality or badness. A prosecution decision-maker may assess the evidence in the round and need not assign separate weights to every factor. Corporate liability requires conduct attributable to an identified individual who represents the corporation’s directing mind and will; responsibility cannot be aggregated. The Crown Prosecution Service has no residual investigative role under Article 2 of the Convention beyond its statutory functions.

The claimant sought judicial review of the decision of the Director of Public Prosecutions not to prosecute Sarah Peters or Salford City Council for gross negligence manslaughter following the drowning of her severely disabled son, Malcolm Rowley, while in a bath at a Council care home.

The DPP’s further review accepted that there was negligence and causation but concluded that neither Ms Peters nor the Council had acted with the degree of criminal gross negligence required. The claimant argued that the wrong legal test had been applied, that relevant and irrelevant factors had been treated improperly, and that Article 2 required further investigation. The central issue was whether the DPP’s decision was legally flawed or plainly wrong.

1. Application dismissed. The DPP’s decision not to prosecute stood. His understanding and application of the law were correct, and his evaluation of the evidence was a discretionary judgment with which the court could not interfere unless plainly wrong.
2. Gross negligence manslaughter comprises:
   • a duty of care;
   • breach of that duty;
   • causation of death;
   • a serious risk of death created by the breach; and
   • conduct so bad in all the circumstances as to amount to a criminal act or omission.
   The first four ingredients are assessed objectively. Criminality or badness is also an objective question for the jury, but it requires consideration of all the circumstances in which the defendant was placed.
3. Subjective recklessness is not a prerequisite. Its presence may strongly support criminality, but its absence does not prevent a finding of gross negligence. Conversely, lack of awareness of the risk, inexperience, misunderstanding, the absence of guidance, and other mitigating circumstances may be relevant in the defendant’s favour when assessing whether the conduct was criminally bad.
4. The DPP was entitled to consider the factors cumulatively and in the round, asking whether a properly directed jury would be more likely than not to convict. Separate numerical or express weighting of every factor was unnecessary.
5. The case against each prospective defendant had to be assessed separately. A local authority could not be convicted of manslaughter by aggregating the conduct of different employees. Liability required conduct attributable to an identified person who was the corporation’s directing mind and will, sufficiently senior to represent it.
6. Article 2 required the State to secure an effective, prompt, open and sufficiently thorough investigation, responsive to the circumstances. It did not give the DPP a residual power or duty to conduct investigations beyond his statutory functions under the Prosecution of Offences Act 1985. The investigations here had been extensive, and no further investigation was reasonably required.
7. The court considered the possible abuse-of-process consequences of delay, previous assurances and the Council’s earlier health and safety prosecution, but those issues did not determine the application because the substantive decision not to prosecute was unassailable.