R v Rose [2017] EWCA Crim 1168

Facts

  • Honey Rose, an optometrist, performed a standard eye examination on a seven-year-old boy.
  • She examined only the outer parts of the boy’s eyes and omitted an internal examination.
  • The omitted internal check would have revealed a fatal medical condition, hydrocephalus.
  • The boy subsequently died from hydrocephalus.
  • Prosecutors argued Rose’s omission amounted to a significant failure in her duty of care and directly caused the boy’s death.

Issues

  1. Whether gross negligence manslaughter requires assessment of the risk of death based on the defendant’s actual knowledge or on knowledge they could have acquired through further actions.
  2. Whether the foreseeability of death should be judged by what the defendant knew at the time of the breach of duty.
  3. Whether the trial judge gave proper directions to the jury concerning foreseeability and the standard for gross negligence manslaughter.

Decision

  • The Court of Appeal allowed Rose’s appeal, setting aside her conviction for gross negligence manslaughter.
  • The Court held that the risk of death should be assessed on the basis of what Rose actually knew at the material time, not on knowledge she might have obtained by performing further checks.
  • The Court found that, at the time of the breach, there was no clear or significant risk of death apparent to Rose based on her actual knowledge.
  • The Court distinguished the facts from R v Adomako, emphasizing that in Adomako the risk of death was obvious on the defendant’s actual knowledge, whereas in Rose it was not.
  • The Court confirmed that expert testimony is relevant to defining the expected standard of care and the severity of departure from it.

Legal Principles

  • Gross negligence manslaughter arises where a person breaches a duty of care with such gravity that it should be treated as criminal, resulting in death.
  • The risk required for liability must relate specifically to death, not minor harm.
  • Foreseeability of risk for gross negligence manslaughter is judged on the defendant’s actual knowledge at the time of the breach, not on hypothetical or potential knowledge.
  • The standard is whether the failure in duty was so severe it indicated disregard for life, assessed via the defendant’s knowledge at the time.
  • Professionals are not excused from meeting reasonable standards of care and must follow necessary protocols, but criminal liability is limited to failures that show gross negligence based on actual knowledge.

Conclusion

The Court of Appeal in R v Rose clarified that criminal liability for gross negligence manslaughter depends on what the defendant actually knew about the risk of death at the time of the breach, not on knowledge that could have been gained by taking further steps. This protects professionals acting within their actual knowledge, but does not absolve them from meeting required standards of care and reasonably identifying risks within their duties.

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