EWJ June 2024 web - Journal - Page 48
was akin to Adomako in that what he should have
known because it could not have been missed (like the
disconnected endotracheal tube). The factual matrix
in Winterton was it was a question not “if ” but “when”
the trench would collapse – this was obvious to anybody. Thus there was reasonable foreseeability of a
serious and obvious risk of death to anyone near or in the
trench. The defendants in Honey Rose and Rudling
were not alerted – and had no reason to be – to the serious and obvious risk of death on the facts available to
them at the time of the breach. Application of retrospective foreseeability was not enough to secure a
conviction for GNM.
possible to discharge it and thus avoid potential criminal liability is an interesting method of discharging
ones duty. However the defendant must be wary of
adopting this approach. Regulatory censure, especially for doctors, may be harsh. It could be argued
that also such omissions, as in Rose, could be incorporated into criminal misconduct. This leads on to the
concept of “wilful blindness/ ignorance” as indicated by
the Court of Appeal in Winterton21. We have to be cautious, as they are different things. Wilful blindness can
lead to a matter of knowledge where in fact no knowledge existed or was known and ignored, yet ignorance is a much broader concept. The danger of the
trench in Winterton “was or should have been obvious to
everybody” does not take into account of the supervisor’s beliefs. He may not have believed the trench it to
be unsafe. Irrespective of the difference in Winterton
and Rose, Laird concluded “a divergence seems to be taking place in terms of how gross negligence manslaughter applies to healthcare professionals as opposed to others upon
whom the law imposes a duty of care”.22 There may be
scope for a separate offence for health professionals.
The judgement in Rose inextricably linked culpability
with foreseeability.16 Stark illustrates Rose as “a rare
instance of progress in the notoriously haphazard area of
involuntary manslaughter”. Laird described the “perverseness” of the law set out in the judgement and argues an imputation-based approach to negligence. 17
He criticised Rose for moving away from The House of
Lord’s focus in Adomako on “objective” conduct. Let us
consider the following scenarios: It could be argued
that an optometrist, A, who carries out an internal examination of the eye and fails to spot the signs of hydrocephalus (which are obvious) may be considered
guilty. Consider then an optometrist, B, who conducts
the examination in such a way that the signs of the potentially fatal condition are not detected (i.e. fails to
look in the eye). Then consider, an optometrist, C,
who performs the examination Rose failed to conduct,
sees the signs of hydrocephalus, but fails to form the
additional belief that there is a “serious” risk of death,
when a reasonably competent optometrist would have
done, given the information at hand. Who is more
morally culpable and negligent? In terms of culpability A would be more culpable than either B or C. But
whilst C would be more morally culpable that B, B’s
actions in failing to conduct a proper examination certainly merit, on principle, more punishment. However the judgement set out in Rose is regarding the
“serious and obvious risk” being present at the time
of the breach. As Stark had suggested negligence can
be appraised in different ways, and can focus to varying extents on the defendant’s behaviour and beliefs.
He argues for a “belief-centred” conception of negligence.18 It certainly seems desirable; it aligns negligence with the more familiar concepts with which
criminal law operates, particularly with reference to
risk taking. Whilst recklessness concerns defendants
who are knowingly unjustifiably exposing others to risk,
negligence is about the unreasonable absence of such a
belief. Extrapolating this Stark argues that at the time
of the breach Honey Rose may have considered her
background beliefs and suggested that by failing to examine the child’s back of his eye that she may have
concluded “there is a remote chance that I will miss signs of
a life threatening condition”. As the Court of Appeal concluded in Rose, that is not the same as a “serious and
obvious” risk of death and the foundation of a
manslaughter conviction.19
Kuddus illustrates Rose and yet raises questions about
the consistency of the law’s application in practice.23
In Kuddus a takeaway manger received a vague message about allergies to nuts in the message box of an
online order. He did not communicate this message
to the chef/owner, who subsequently prepared a meal
with nuts. This caused after ingestion a fatal allergic
reaction in the customer. Applying Rose, the chef had
his conviction of GNM quashed on the basis that that
the “serious” risk of death was not “obvious” to him at
the time of the breach. It is, however, the manager’s
position that is of significance. He did not appeal
against his conviction of GNM. Had he done so it
could be argued that his conviction may have been
also quashed on the basis that whilst he was aware of
an allergy to nuts, an “obvious risk of death” was not
apparent; there was only a “possible” risk of death (the
latter being not enough to secure a conviction for
GNM). As the conviction was not appealed we shall
not know the Court of Appeal’s answer.
Old problems resurfacing
Excluding the Mens Rea
Negligence does not relate to the state of mind of the
defendant but to an unreasonable standard of conduct and as such uses an objective test. Put another
way a mens rea is not relevant in deciding whether a
defendant is negligent. This was illustrated in the following case. In A-G ref no 2 of 1999, heard in the Court
of Appeal (Criminal division), one of the questions that
was referred was: can a defendant be properly convicted of manslaughter by Gross Negligence in the absence of evidence as to that defendant’s state of
mind?24 The case arose from the Southall train crash
in which seven people died. The driver was experienced, but without a second competent person with
him. Two safety devices were fitted to prevent the train
passing a signal but were turned off. The driver failed
to notice two yellow signals and was travelling too fast
to stop for a red signal. Their Lordships came to the
conclusion that no proof of a mens rea was required;
that is GNM can be proved without the need to en-
The other obvious outcome from Rose (and Rudling20)
is the incentive to perform one’s duties badly. In those
that owe a duty of care to another by doing the least
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