R v S

Gross negligence manslaughter is assessed objectively. The question is whether a reasonably prudent person of the defendant’s age and experience would have foreseen a serious risk of death, and whether the conduct was so far below the required standard as to be criminally gross. The defendant’s genuine and reasonable beliefs form part of the circumstances, but do not make the test subjective.

An extended sentence requires a justified finding that the offender is dangerous. A court may make a global assessment of risk, but the available evidence must support that conclusion.

The appellant, aged 15, shot and killed his 15-year-old girlfriend while handling a pistol. A jury at the Central Criminal Court acquitted him of murder but convicted him of gross negligence manslaughter and possessing a firearm with intent to endanger life or enable another to do so. He received concurrent extended sentences of 14 years, comprising nine years’ custody and a five-year extension period.

He renewed his application for leave to appeal against conviction and sentence. The challenges concerned the directions on gross negligence, the sufficiency of evidence of intent on the firearm count, the admission of a stab vest, and the finding that he was a dangerous offender.

1. The appeal against conviction was dismissed. Gross negligence manslaughter required an objective assessment. The jury had to decide whether a reasonably prudent person of the appellant’s age and experience would have foreseen a serious risk of death, and whether the appellant’s conduct was so far below the required standard as to be criminally gross.

2. The appellant’s belief that the pistol was harmless was a relevant circumstance. It did not make foreseeability a subjective inquiry. The judge sufficiently directed the jury to consider all the circumstances, including the appellant’s knowledge, beliefs, experience, the firearm evidence, and the steps taken to make the weapon safe. It was open to the jury to find gross negligence in pointing the gun at the deceased and pulling the trigger.

3. The evidence was capable of supporting an inference of the specific intent required for the firearm offence. The pistol was possessed with ammunition, the appellant’s account of its acquisition involved an unnamed dangerous acquaintance, and the stab vest was capable of bearing on that issue.

4. The Court upheld the admission of the stab vest. It had potential probative value in relation to the firearm count and, in light of the judge’s limiting direction, its admission did not cause unfair prejudice under the Criminal Justice Act 2003.

5. The appeal against sentence was allowed. Although the sentencing judge could make a global assessment of risk, the dangerousness finding was not justified. The conviction was for gross negligence manslaughter, the appellant had only just turned 15, and the pre-sentence report identified serious risk factors without concluding that he was dangerous. The extended sentence was therefore unlawful. The Court substituted a determinate term of nine years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.

• Court of Appeal (Criminal Division) — [2015] EWCA Crim 558: leave was granted. The convictions were upheld, but the extended sentence was replaced by a determinate nine-year term of detention.

• Central Criminal Court — the jury acquitted the appellant of murder and convicted him of gross negligence manslaughter and possessing a firearm with intent to endanger life or enable another to do so. Concurrent extended sentences of 14 years were imposed.