Rudling, R. v

Gross negligence manslaughter requires a reasonably foreseeable serious and obvious risk of death at the time of the breach. A need for urgent face-to-face assessment of a worrying, unusual and undiagnosed condition does not itself establish that present risk. A possibility that further investigation may reveal a life-threatening condition is neither a serious nor an obvious risk of death.

Under section 67 of the Criminal Justice Act 2003, a termination ruling is not unreasonable merely because the appellate court might have reached the opposite conclusion. The ruling must fall outside the range of reasonable conclusions open to the trial judge.

Ryan Morse, aged 12, died from an Addison’s disease crisis after a period of non-specific symptoms. The Crown prosecuted Dr Joanne Rudling and Dr Lyndsey Thomas for gross negligence manslaughter, alleging that their telephone consultations with Ryan’s mother on 7 December 2012 failed to secure urgent medical intervention.

At the close of the Crown case, Nicola Davies J ruled that neither doctor had a case to answer on manslaughter. The Crown accepted the ruling concerning Dr Thomas but sought leave to appeal the termination ruling concerning Dr Rudling. Its principal contention was that the information conveyed in the evening telephone call showed an obvious and serious risk to Ryan’s life, or alternatively a risk of fatal sepsis or infection.

The central issue was whether the judge’s no-case ruling was unreasonable within section 67 of the Criminal Justice Act 2003.

1. The court refused the Crown leave to appeal and, pursuant to section 61(3) of the Criminal Justice Act 2003, ordered Dr Rudling’s acquittal on the manslaughter count.

2. Applying section 67, the court could reverse the termination ruling only if it was wrong in law, involved an error of law or principle, or was not a reasonable ruling for the judge to make. The Crown accepted that only the last ground was available. That is a high threshold: it is insufficient that the trial judge could reasonably have reached the opposite conclusion. The appellate court should also exercise particular caution where the challenge concerns the perceived thrust of oral evidence which the trial judge saw and heard.

3. The ingredients of gross negligence manslaughter include a breach of duty causing death, a reasonably foreseeable serious and obvious risk of death, and conduct so bad in the circumstances as to be criminal, as stated in R v Adomako [1995] 1 AC 171. The critical risk was the risk at the time of the alleged breach, namely the telephone call, rather than the condition that would have been apparent upon a subsequent examination.

4. The expert evidence supported an urgent face-to-face assessment because the presentation was unusual and potentially serious. It did not support a finding that an obvious and serious risk of death was apparent at that time. A recognisable risk of serious illness differs from a recognisable risk of death. An obvious risk is present, clear and unambiguous; it is not a possibility which might be revealed only after further investigation.

5. The alternative sepsis or infection case could not succeed. It had not been advanced before the trial judge, so her ruling could not be unreasonable for failing to address it. In any event, the expert had not said that the reported discolouration, alone or with the other symptoms, disclosed an obvious risk of death from sepsis or infection.

The remaining allegation concerning the medical record was to be retried. Reporting restrictions remained in force under section 71 of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division) — in R v Rudling [2016] EWCA Crim 741, refused the Crown leave to appeal the termination ruling and ordered Dr Rudling’s acquittal on the manslaughter count.
• Crown Court at Cardiff — Nicola Davies J upheld submissions of no case to answer on the manslaughter counts at the close of the Crown case. The ruling concerning Dr Thomas was accepted by the Crown; the ruling concerning Dr Rudling was the subject of this application.