Rose v R (Rev 1)

For gross negligence manslaughter, the serious and obvious risk of death must be assessed objectively and prospectively at the time of the identified breach of duty. The court must put a reasonably prudent professional in the defendant’s position at that time. It must not attribute knowledge which the professional would have acquired only by performing the examination, inspection or other act whose omission is alleged to be negligent.

A possibility that a routine examination might reveal a life-threatening condition is not itself a present, clear and unambiguous risk of death. Serious professional negligence may require regulatory action, but it does not amount to gross negligence manslaughter unless all elements of that offence are proved.

The appellant, a registered optometrist, was convicted at Ipswich Crown Court of the gross negligence manslaughter of a child whom she had examined during a routine sight test. The prosecution alleged that she failed properly to examine the back of his eyes or to view the correct retinal images. Those steps would have revealed papilloedema and led to an urgent referral and life-saving treatment.

The trial judge ruled that the jury could assess foreseeability by reference to what the appellant would have known had she carried out the omitted examination. The jury convicted her. On appeal, the central issue was whether knowledge that would have been obtained but for the breach could be used to establish a serious and obvious risk of death.

1. Appeal allowed; conviction quashed. The case should have been withdrawn from the jury at the close of the prosecution case because there was no evidence capable of proving the required serious and obvious risk of death at the time of the alleged breach.

2. The established gross negligence manslaughter test, derived from R v Adomako [1995] 1 AC 171 and restated in R v Rudling [2016] EWCA Crim 741, requires an existing duty of care, negligent breach, a reasonably foreseeable serious and obvious risk of death, causation, and conduct so exceptionally bad as to be criminal.

3. Foreseeability is objective, but it remains prospective. The relevant inquiry is what a reasonably prudent professional in the defendant’s position ought to have foreseen at the moment of breach. It does not turn on the defendant’s subjective understanding. Equally, it does not permit hindsight by imputing information that would have emerged only if the defendant had complied with the duty.

4. The statutory purpose of an intra-ocular examination under the Opticians Act 1989 and the Sight Test (Examination and Prescription) (No.2) Regulations 1989 was to detect signs of disease or abnormality. Without relevant symptoms or other warning signs, failure to carry out a routine examination created only the possibility that a life-threatening condition might be missed. It did not create a present serious and obvious risk of death.

5. The trial judge therefore erred by directing the jury to consider what the appellant would have known had she examined the child’s eyes properly or viewed the correct images. The seriousness of the negligence found by the jury was not condoned, but it did not on these facts constitute gross negligence manslaughter.

• Court of Appeal (Criminal Division): allowed the appeal against conviction and quashed the conviction for gross negligence manslaughter.
• Ipswich Crown Court: Stuart-Smith J and a jury convicted the appellant of gross negligence manslaughter. She received a two-year suspended sentence with supervision and unpaid work requirements.