17/08/2017
Honey Marie Rose v R [2017] EWCA Crim 1168
The perplexities of what constitutes gross negligence has been illustrated in the case of Honey Marie Rose v R, in which the Court of Appeal overturned the controversial conviction of optometrist, Honey Marie Rose.
The decision provides clarification about when foreseeability of risk occurs in cases involving gross negligence manslaughter. This is crucial for directors and senior managers who could face harsher sentences when prosecuted for gross negligence manslaughter if new proposals currently under consultation for the sentencing of manslaughter cases are adopted. (New Sentencing Guidelines Propose Harsh Prison Sentences For Gross Negligence Manslaughter)
The facts
Honey Rose, an optometrist, failed to notice that seven-year-old Vincent Barker had swollen optic discs when she examined him at a branch of Boots in Ipswich. The abnormality is a symptom of hydrocephalus, fluid on the brain.
Vincent died in July 2012, about five months after the eye test.
Rose had not looked at retinal photos taken by a colleague and failed to examine the backs of Vincent’s eyes with an ophthalmoscope, Ipswich Crown Court heard. However, evidence showed she was “generally competent” in her work.
What is gross negligence manslaughter?
The Court of Appeal’s judgment provides a useful summary of what constitutes gross negligence manslaughter.
“The offence of gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to a criminal act or omission.
There are, therefore, five elements which the prosecution must prove in order for a person to be guilty of an offence of manslaughter by gross negligence:
a) the defendant owed an existing duty of care to the victim;
b) the defendant negligently breached that duty of care;
c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;
d) the breach of that duty caused the death of the victim;
e) the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.”
Rose’s defence put forward that, “a situation where [there was a serious and obvious risk of death] would only be apparent if the practitioner were to carry out further investigations, is not sufficient to sustain an allegation of gross negligence manslaughter.”
This was rejected at trial. Judge Jeremy Stuart-Smith declared that “…recklessness is not a necessary constituent of the offence of gross negligence manslaughter…[and] the circumstances in which charges of gross negligence manslaughter may properly lie do not depend upon indifference by a defendant to known facts or risks. …”
The trial judge also distinguished the case of R v Rudling [2016] EWCA Crim 741 on the basis that, in that case, further investigation was required for the risk to become apparent. (In this case, a 12-year-old boy died from Addison’s disease).
The judge then directed the jury that the prosecution must prove the following five elements beyond reasonable doubt:
1. Ms Rose owed a duty of care to Vincent Barker;
2. Ms Rose breached that duty of care;
3. It was reasonably foreseeable that her breach of her duty of care gave rise to a serious and obvious risk of death;
4. Ms Rose’s breach of her duty caused the death of Vincent Barker because it was a significant contributory factor; and
5. Having regard to the risk of death, her conduct was so bad in all the circumstances as to amount to a criminal omission.
In relation to the issue of foreseeability, the judge directed the Jury as follows, “It was reasonably foreseeable that her breach of her duty of care gave rise to a serious and obvious risk of death (emphasis mine).
The Jury should consider this question at the moment that Ms Rose concluded her examination of Vinnie and the facts that were known or should have been known to her at that time. If and when the Jury come to consider this question, they can take into account what Mrs Rose would have known if she had conducted the examination properly or had looked at the images. If she had conducted a full eye examination or had viewed Vinnie’s 2012 images then it is common ground that either of those steps would have revealed the swollen discs at the back of the eye and that any competent optometrist would have realised that the swollen discs meant there was an obvious and serious risk to Vinnie’s life if he was not urgently referred to a medical practitioner for diagnosis and, if necessary, treatment. So, although Ms Rose did not appreciate the risk, that is not the question. The Jury have to consider whether the risk would have been obvious to a reasonably competent optometrist with the knowledge that Honey Rose would have had if she had not acted in breach of her duty to investigate the true position in the respects that they have found that she did.”
The appeal
Ms Rose appealed on the grounds that the trial judge had applied the wrong test.
“The test should be based on the professional’s knowledge at the time the duty of care was said to be breached. Had Ms Rose properly examined the back of the deceased’s eye and failed to act, she could be guilty of gross negligence manslaughter, as she would have seen the signs of papilloedema (a life-threatening condition) and would have had the requisite knowledge that there was an obvious and serious risk of death.”
But she did not properly examine the back of the deceased’s eye.
Because of this, the trial judge’s directions to the jury regarding foreseeability were not correct because she did not have the knowledge that a reasonably competent optometrist would have had, had she examined the back of the eye appropriately.
The Court of Appeal agreed, stating, “the inherently objective nature of the test of reasonable foreseeability does not turn it from a prospective into a retrospective test. The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach. The question of reasonable foreseeability is evident from the words used, i.e. what is reasonably fore-seeable at the time of the breach (a prospective view). It is not what would, could or should have been known but for the breach of the identified duty of care, i.e. if the breach had not been committed (a retrospective view).”
If the trial judge’s reasoning was to stand, it would “fundamentally undermine the established legal test of foreseeability in gross negligence manslaughter which requires proof of a “serious and obvious risk of death” at the time of breach”.
The conviction was therefore quashed.
What does this decision mean for employers facing gross negligence manslaughter charges?
The quashing of Honey Rose’s conviction and the consequential analysis of gross negligence manslaughter provides some clarity as to the breadth of the offence.
The Court of Appeal states that, after careful consideration of the authorities, it is clear that:
“none of the authorities suggests that, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court is entitled to take into account information which would, could or should have been available to the defendant following the breach of duty in question. The test is objective and prospective.”
This emphasises that when defending these types of cases it is the important that the court fully understands the nature of the work involved as well as the context in which any errors may have been made. And as observed by Mr Justice Hidden (as he was then) in his Clapham Rail Disaster Report, there are the dangers of hindsight:
“In my review I have attempted at all times to remind myself of the dangers of using the powerful beam of hindsight to illuminate the situations revealed in the evidence. The power of that beam has its disadvantages. Hindsight also posses a lens which can distort and can therefore present a misleading picture: it has to be avoided if fairness and accuracy of judgment is to be sought.”
The Court of Appeal in Honey Rose’s case said that its decision does not in any sense condone the negligence “that the jury must have found to have been established at a high level”. But concluded that this “serious breach of duty is a matter for her regulator; in the context of this case, however, it does not constitutes the crime of gross negligence manslaughter” .
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