York College & Anor, R v

On a submission of no case to answer, the judge must take the prosecution evidence at its highest. The case should proceed where, on one possible view, a properly directed jury could properly convict. In gross negligence manslaughter, the risk at the serious-and-obvious-risk stage is assessed objectively. The defendant’s actual or presumed knowledge is immaterial to that stage, although it may be important when deciding whether the breach was gross. The final question is for the jury where the evidence could support a finding that the conduct was so reprehensible and far below the expected standard as to be criminal. Serious mistakes or errors of judgment are insufficient by themselves.

The prosecution charged York College and Ms Sophee Redhead with offences under the Health and Safety at Work Act 1974. Ms Redhead was also charged with gross negligence manslaughter after a three-year-old child died by strangulation on a rope attached to playground equipment.

After the prosecution closed its case, Ms Redhead applied for dismissal of the manslaughter charge on the ground that there was no case to answer. Duty, breach and causation were conceded for the application. The central questions were whether the evidence could establish an obvious and serious risk of death and whether the alleged breach could properly be characterised as gross negligence.

1. Application of the no-case test. Applying R v Galbraith [1981] 73 Crim App R 124, the court had to consider the prosecution evidence at its highest. If, on one possible view of the facts, a properly directed jury could properly convict, the case had to continue. Questions depending on witness reliability and other matters within the jury’s province were for the jury.
2. Elements of gross negligence manslaughter. For the purposes of the application, the accepted framework required proof of: a duty of care; breach; causation or significant contribution to death; an objectively obvious and serious risk of death; and conduct so reprehensible and far below the expected standard that it amounted to criminal gross negligence. The framework was consistent with R v Adomako [1995] 1 AC 171, R v Singh [1999] CLR 582, R v Misra [2004] EWCA Crim 2375 and R v Yaqoob [2005] EWCA Crim 2169.
3. Risk of death. The fourth step was entirely objective. The relevant question was whether a reasonably prudent person would conclude that the circumstances presented an obvious and serious risk of death. Ms Redhead’s actual or implied knowledge of the rope was immaterial at this stage, although it could be significant at the grossness stage. The risk assessments identifying strangulation as a risk, together with witness evidence concerning the looped rope, provided evidence on which a jury could find the fourth step satisfied.
4. Grossness. The fifth step imposed a high hurdle, but was substantially a matter for the jury. The evidence could support an inference that Ms Redhead knew or ought to have known that a rope was likely to be attached to the slide, that Lydia could reach it despite the makeshift barrier, and that the slide was unsupervised. The possible 20-minute delay before discovery could properly be regarded by a jury as gross negligence, although the jury could instead regard it as an error of judgment.
5. Evidence of character and alleged systemic failings in the college’s health and safety arrangements did not justify withdrawing the issue from the jury. The application to dismiss the gross negligence manslaughter charge was refused.