Criminal justice

In assessing reasonable foreseeability of ‘serious and obvious risk of death’ in cases of gross negligence manslaughter, it was not appropriate to take into account what the defendant would have known but for his breach of duty. Accordingly, the Court of Appeal, Criminal Division, allowed the defendant optometrist’s appeal against conviction and quashed her conviction for an offence of gross negligence manslaughter.

Background

The prosecution case was that the defendant optometrist had been guilty of gross negligence manslaughter by: (i) failing, without good reason, properly to examine the back of the deceased’s eyes during his sight test as she was required to do so by reason of her statutory duty of care, and (ii) failing to refer him for urgent medical treatment as a result of the significant findings shown on the retinal images which she should have viewed. Had she not breached her statutory duty of care to examine his eyes properly and had she referred him, the deceased could have been successfully treated in hospital and would not have died from his pre-existing condition. Accordingly, she was guilty of gross negligence manslaughter by omission and it was reasonably foreseeable that her breach of duty at the time the eye examination was concluded would have resulted in a serious and obvious risk of death to the reasonably prudent optometrist. Following a trial, the jury convicted the defendant of gross negligence manslaughter. She appealed against conviction.

Issue and decision

Whether in assessing reasonable foreseeability of ‘serious and obvious risk of death’ in cases of gross negligence manslaughter, was it appropriate to take into account what a reasonable person in the position of the defendant would have known but for his breach of duty.

From the case law, the relevant principles of gross negligence manslaughter could be summarised as follows:

First, the offence of gross negligence manslaughter required breach of an existing duty of care which it was reasonably foreseeable gave rise to a serious and obvious risk of death and did, in fact, cause death in circumstances where, having had regard to the risk of death, the conduct of the defendant had been so bad in all the circumstances as to go beyond the requirement of compensation but to amount to a criminal act or omission.

Second, there were, therefore, five elements which the prosecution had to prove in order for a person to be guilty of an offence of manslaughter by gross negligence: (i) the defendant had owed an existing duty of care to the victim; (ii) the defendant had negligently breached that duty of care; (iii) it had been reasonably foreseeable that the breach of that duty had given rise to a serious and obvious risk of death; (iv) the breach of that duty had caused the death of the victim; and (v) the circumstances of the breach had truly been exceptionally bad and so reprehensible as to justify the conclusion that it had amounted to gross negligence and required criminal sanction.

Third, the question of whether there was a ‘serious and obvious risk of death’ had to exist at, and was to be assessed with respect to, knowledge at the time of the breach of duty.

Fourth, a recognisable risk of something serious was not the same as a recognisable risk of death.

Fifth, a mere possibility that an assessment might have revealed something life-threatening was not the same as an obvious risk of death: an obvious risk was a present risk which was clear and unambiguous, not one which might have become apparent on further investigation.

Sixth, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court was not 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 was objective and prospective.

Accordingly, reverting to the issue in question: in assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, it was not appropriate to take into account what the defendant would have known but for his breach of duty (see [77], [78], [94] of the judgment).

In the present case, the prosecution case was that the defendant had been in breach of her duty of care in failing to carry out a proper examination of the back of the deceased’s eyes during his appointment. However, as in R v Rudling ([2016] All ER (D) 09 (Jul)), the potentially life-threatening seriousness of the deceased’s condition, as manifested by visible swelling of the optic nerve (papilloedema), would not have been apparent to the defendant unless and until she had carried out a proper examination of the back of the deceased’s eyes with particular equipment.

The fact that a proper examination might have revealed a serious abnormality or, even in some cases, serious life-threatening problems, had not meant that there was a ‘serious and obvious risk of death’ if such an examination was not carried out. It might have been different if the patient had presented with symptoms which themselves had either pointed to the risk of a potentially life threatening condition or provided a flag that alerted a competent optometrist to that risk, however, that had not been the present case (rather, it had been an entirely routine examination with no material pre-existing history).

Put at its highest, what a reasonably prudent optometrist would or should have known at the time of the breach was that, if he had not carried out a proper examination of the back of the deceased’s eyes, there would have remained the possibility that signs of potentially life-threatening disease or abnormality might have been missed. However, that was not enough to have founded a case of gross negligence manslaughter since there had to have been a ‘serious and obvious risk of death’ at the time of breach.

Accordingly, the judge had erred in rejecting the defence submissions of ‘no case to answer’. For the same reasons, the judge’s direction to the jury regarding foreseeability had also suffered from the same error. He should not have directed the jury that, when considering whether there had been a ‘serious and obvious risk of death’, they had to consider whether the risk would have been obvious to a reasonably competent optometrist with the knowledge that the defendant would have had if she had not acted in breach of her duty (see [83], [85], [86], [93] of the judgment).

R v Adomako [1994] 3 All ER 79 applied; R v Singh (Gurphal) [1999] All ER (D) 179 applied; A-G’s Reference (No 2 of 1999) [2000] 3 All ER 182 applied; R (on the application of Lewin) v DPP [2002] All ER (D) 379 (May) applied; R v Mark [2004] All ER (D) 35 (Oct) applied; R v Misra [2004] All ER (D) 107 (Oct) applied; R v Rudling [2016] All ER (D) 09 (Jul) applied; R v Sellu [2016] All ER (D) 114 (Nov) applied.

Appeal allowed and conviction quashed.

Per curiam: ‘We add that this decision does not, in any sense, condone the negligence that the jury must have found to have been established at a high level in relation to the way that [the defendant] examined [the deceased] and failed to identify the defect which ultimately led to his death. That serious breach of duty is a matter for her regulator; in the context of this case, however, it does not constitute the crime of gross negligence manslaughter’ (see [95] of the judgment).

Ian Stern QC and Sandesh Singh (instructed by Stokoe Partnership) for the defendant.

Jonathan Rees QC and Karen Robinson (instructed by the Crown prosecution Service) for the Crown.

Manveer Cheema Barrister.