Rowley, R (on the application of) v DPP [2003] EWHC 693 (Admin)

[2003] EWHC 693 (Admin)Case No CO/2253/2002IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISIONADMINISTRATIVE (DIVISIONAL) COURTSVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 4 th April, 2003
Before
LORD JUSTICE KENNEDYMR JUSTICE HOOPER
Between
The Queen on the application of Brenda RowleyD.P.P.
Murray Hunt and Danny Friedman (instructed by Tyndallwoods, Birmingham) for ClaimantHugo Keith (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 18 th and 19 th March 2003
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

This is the judgment of the Court

[1]Mrs Rowley seeks from this court an order to quash the decision of the defendant not to prosecute either Sarah Peters or Salford City Council for gross negligence manslaughter in respect of the death of her son Malcolm Rowley. The decision was set out in a seven page letter to Mrs Rowley written by Mr Enzor after he had conducted a further review of the case, and Mrs Rowley now seeks, in addition to a quashing order, a mandatory order requiring the defendant to reconsider whether to prosecute Sarah Peters or the Council for gross negligence manslaughter.

Background

[2]Malcolm Rowley was born on 12th October 1967 so that at the date of his death in July 1988 he was 30 years of age. He moved into residential care in 1975 when he was about 8 years of age, and with two others he started living at 96 New Lane, Winton, Salford in 1990. They were transferred into the Salford Dispersed Housing Scheme as part of the national policy of moving patients to be cared for in the community. All three residents at 96 New Lane had profound physical disabilities, and during the day they were cared for by two carers employed by the Council, with one carer sleeping overnight. There was a rota of eight or nine regular carers, which included Brenda Mather and Sarah Peters.[3]In 1984, before Malcolm was transferred to 96 New Lane, his mother emigrated to Botswana, but his grandparents and other relatives maintained contact with Malcolm, and his mother visited six or seven times over the next fourteen years.[4]In September 1994 a care plan was prepared by the Social Services Department of the Council in relation to Malcolm. In that plan he is recorded as suffering from epilepsy, microcephaly and spastic quadriplegia. In paragraph 1.2 to 1.3 the plan states – “He has progressive muscular contractions, which limit the extension of his limbs. His epileptic seizures are both violent and gruelling, but rare. His hearing is impaired and he wears hearing aids in both ears, even with the hearing aids only loud sounds in close proximity to Malcolm are audible to him. Malcolm is an affectionate and demonstrative young man, well versed in showing his changing moods. Malcolm enjoys attention from staff, members of either sex. Although he cannot speak, he is nonetheless able to interpret the moods of others by taking in facial expressions used by the person dealing with him. He sheds tears when severely distressed, although this is uncommon. He whoops and squeals when happy or excited or startled.” Malcolm was receiving regular physiotherapy, and the care plan went on to spell out his needs. Under the heading “Bathing” paragraph 2.2 states – “Malcolm needs to be bathed by staff using a hoist, this takes place every morning. He enjoys being in the bath as he likes water and tends to splash a lot. However, he dislikes being shaved and will attempt to distract the shaver … ” In an undated manuscript note of “Malcolm’s needs” which may have come into existence at about the same time it is stated in paragraph 11 that – “Malcolm enjoys a soak in the bath. He needs constant supervision” In December 1997 there was a House Meeting, attended by Brian Grant, the Dispersed Housing Manager for the Council, and Mrs Mather, at which concern was expressed about an increase in Malcolm’s seizures, and on 6th May 1998 his general practitioner referred him to the Department of Neurology at the local hospital because his carers had “been having difficulty controlling his fits and his sleepiness on his increased dose of Epilim.” The records show that he attended at hospital on 24th June 1998, there was no change of medication, and a further appointment was made for June 1999.[5]The carers who were on duty on that Saturday morning were Barbara Mather and Sarah Peters. Mrs Mather, who had worked for the Social Services Department for ten years, had slept overnight, and Sarah Peters, who was an assistant carer with 9 years experience, had come on duty at 8 a.m. On Tuesday to Friday mornings Malcolm had to have a quick bath before going to a Day Centre, but on other days he was allowed to stay in the bath for longer because he enjoyed it. After the bath had been prepared he was taken from his bedroom to the bathroom by means of a hoist, and lowered into the bath. It was fitted with a jacuzzi and after he had been washed and shaved he was allowed to soak.[6]At about 9.30 a.m. Sarah Peters ran the bath for Malcolm so that the water was about one inch below the level of the jacuzzi jets. He was then taken to the bath in the usual way, and laid flat in it and washed. After Sarah Peters had finished washing him she topped up the water to cover the jets. It would then be about 5 inches deep. She turned on the jacuzzi and that was one of Malcolm’s treats. There was some standard bubble bath in the water so it bubbled. She then left to put the towels on his bed, and returned to check him. After that she left again to help Mrs Mather to dress Gerald, one of the other two residents, in his room, but she kept returning to the bathroom to keep an eye on Malcolm. After the two carers had finished dressing Gerald Mrs Mather went to put a coat on David, the third resident, and Sarah Peters went to make a drink. After an absence of about 4 to 5 minutes she returned to the bathroom. When she had left Malcolm his face, chest and genitals were all above the water level. When she returned she was aware of a lot of bubbles and his head was not visible. It was some time after 10 a.m., so Malcolm had been in the bath for about half an hour. She called for Mrs Mather who came, and together they carried Malcolm to his room and tried to resuscitate him, but they were unsuccessful. The cause of death was wet drowning, and the pathologist’s view was that his pre-existing mental and physical handicap “contributed significantly to his death by preventing him from raising his head and/or body above the water once his mouth and nose had become immersed in it.” The autopsy report goes on to point out that death typically takes 4 to 5 minutes after total immersion in fresh water, so it is quite possible that Malcolm could have died in the interval after Sarah Peters’ last visit.[7]Leaving aside for a moment the precise amount of time for which Malcolm was left unattended before Sarah Peters returned for the last time, it seems clear that what she did had become standard practice when Malcolm was not going to the Day Centre. Leaving Malcolm for short periods enabled the carers to attend to other matters, and also gave him in their view a bit of privacy. There were no written or oral instructions not to leave him unattended, and he had never previously got into difficulties. He kept his head above the water level without any problems, and the carers regarded him as having good neck muscles for that purpose, although a video film made available by the claimant to the police does show that Malcolm’s head control was very limited, and there was other evidence to show that when not in the bath Malcolm’s head would jerk rapidly and in an uncontrolled fashion.[8]When dealing with David the carers behaved differently. He had regular fits, and did not enjoy his bath, so he was never left alone.[9]According to Mrs Mather prior to Malcolm’s death there had been management visits to 96 New Lane about once a week, and after his death Mr Grant and Mr Warren, an assistant manager responsible for a group of houses in the community, gave instructions that residents were not to be left unattended in the bath. Instructions were also given not to use high foaming detergents with the jacuzzi. The bath makers instructions, which were not it seems displayed or known to the carers, said that – “Normal bubble baths will froth excessively with whirlpools and must not be used.”[10]After Malcolm died investigations were made by the Council, the Greater Manchester Police and by the Health and Safety Executive. Statements were obtained from Mrs Mather and Sarah Peters and other carers, and from their superiors (e.g. Mr Grant and Mr Warren) and enquiries were made of other members of the Social Services Department. For present purposes we need not recite what the witnesses said. The general effect of their statements is summarised above.[11]Mrs Rowley returned to England from Botswana soon after Malcolm died, and established contact with the police. She was naturally anxious to know what had happened, and in August 1998 she was told that it was not intended to prefer criminal charges because no one had intended to harm Malcolm, and indeed the carers had been very upset by his death. Mrs Rowley has never been satisfied with that decision and has done everything in her power to get it reversed.[12]Mr Kilvert, a senior safety officer with the Council, prepared a report for the Council, which also appointed Mr Kealey, a former assistant Director of Social Services with Cheshire County Council to produce an independent report. He reported in August 1998. In the course of his enquiries he visited 96 New Lane twice, and also visited relatives of Mrs Rowley who she had agreed would represent her during her return visit to Botswana.[13]Mrs Worrall of the Health and Safety Executive reported in October 1998, and identified possible breaches by the Council of the Health and Safety Work Act 1974, and of the regulations made thereunder. As to manslaughter it was her opinion that “no grossly negligent or reckless act has been committed.”[14]Mrs Rowley was still not satisfied. She wrote to the Coroner, and in December 1998 moved to England permanently to press for further investigations into her son’s death. She asked the Chief Constable to consider charges of gross manslaughter against the carers, and at his behest Detective Superintendent Brown examined the file and found no evidence on which to base any criminal proceedings. Mrs Rowley was so advised in June 1999, but the police did also take the precaution of seeking advice from the Crown Prosecution Service. That resulted in a letter from Mr Lord of the CPS dated 29th June 1999 in which he indicated that he proposed to refer the matter to counsel for advice, but meanwhile suggested certain further enquiries, including interviewing Mrs Mather and Sarah Peters under caution, and ascertaining - “Whether or not senior management at the home were aware of the practice adopted in relation to Malcolm Rowley. Were they aware that his bath times were not being supervised? Was any guidance given to members of staff about the level of supervision? Were there any standing orders that people should not be left unattended in the bath?” The two women were interviewed under caution on 14th July 1999, and on 19th July, 1999 Detective Sergeant Stead responded in writing to the points raised by Mr Lord. Part of his response reads – “I have re-interviewed the senior manager of the home (Eva Murphy) to confirm issues that were addressed after the death of Malcolm Rowley. She confirms that senior management of the City of Salford Social Services were not aware of the practices adopted by the staff of the home, in relation to the bathing procedures of Malcolm Rowley and the other two residents. It is also confirmed that there was no guidance or training given to any members of staff in relation to the level of supervision during bathing procedures or intobathing procedures, and there was not present any written, or verbal, standing orders, or procedures, in relation to these bathing procedures including that of leaving of any of the residents unattended in the bath. As can be seen, the possibility of someone drowning in the Social Services Home in this type of incident, had never even been considered.” At about the same time an anonymous letter was written to a local newspaper which it passed to Mrs Rowley. It purported to come from some one who had cared for Malcolm, apparently in previous accommodation, and asserted that he should not have been left alone.[15]The CPS passed the file to its Casework Directorate at York and once again the conclusion was that there was insufficient evidence to justify a prosecution. Mrs Rowley was so advised in October 1999.[16]In November 1999 Mrs Rowley met Mr Enzor, the Head of the Casework Directorate at York, and Detective Superintendent Brown, and sought to persuade them to think again, and Mr Enzor agreed to do so after the inquest.[17]The inquest was held in December 1999 and twelve witnesses were called including Mrs Rowley, the two carers, Mr Warren, Mr Grant, Mr Kilvert, Mr Kealey and Mrs Worrall. Various parties were legally represented, and the verdict was accidental death, to which neglect was a contributory factor.[18]Following the inquest Mr Enzor advised Mrs Rowley that as no fresh evidence had emerged the decision of the CPS not to prosecute would stand.[19]In March 2000 Mrs Rowley was advised by the Health and Safety Executive that it had decided to prosecute the City of Salford for contravention of section 3(1) of the 1974 Act and regulation 3(1) of the Reporting of Injuries, Disease and Dangerous Occurrences Regulations 1955. The case was heard in July 2000 when the Council was fined a total of £115,000.[20]Meanwhile in May 2000 Mrs Rowley wrote to the defendant seeking a further review, and the CPS then obtained the advice of Treasury Counsel, which resulted in Mrs Rowley again being advised in July 2000 that the CPS was not disposed to prosecute.[21]Eighteen months later in December 2001, having at last obtained access to the Social Services file, Mrs Rowley sent some of the fresh material she had obtained to Mr Enzor and asked him to think again. He agreed to do so, and the decision now under challenge is the result of his re-consideration. The re-review itself is an impressive document covering 46 pages in which Mr Enzor reviews all of the material, including the correspondence, and analyses the evidence. Amongst other matters he noted from Malcolm’s records that on 20th March 1998 he had fallen asleep in the bath, and that according to another carer, Merle Casey, at some unspecified date there had been a near fatal drowning incident in another care home. In this court Mr Murray Hunt, for Mrs Rowley, did not dissent from the proposition that the first 35 pages of Mr Enzor’s review constitute a full and accurate survey of the relevant material before him. Mr Enzor then turned to the law and the Code for Crown Prosecutors. Having applied that Code to three possible defendants, namely Mrs Mather, Sarah Peters and the Council, and considered other matters, he concluded that “there is not a case for manslaughter against Mrs Mather, Ms Peters or Salford City Council.” That conclusion and the reasons for it were encapsulated in a seven page letter written to Mrs Rowley on 6th February 2002, and these proceedings were commenced on 10th May 2002.[22]The law of gross negligence manslaughter which Mr Enzor had to apply is set out in section 7 of his re-review. In section 8 he considers issues raised by the European Convention on Human Rights, and Mr Hunt does not directly challenge what Mr Enzor says about the law. His complaint is as to the way that Mr Enzor applied the law to the facts of this case. Never the less it seems to us to be necessary, in the light of the submissions made to us, to set out the law as we understand it, starting with the decision of the House of Lords in R v Adomako [1995] 1 AC 171. The defendant in that case was an anaesthetist who failed to observe what was happening during an operation, including the fact that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter. The prosecution’s case was that the defendant was guilty of gross negligence “in failing to notice or respond appropriately to obvious signs that a disconnection had occurred and that the patient had ceased to breathe” (181).[23]In giving the decision of the House of Lords Lord Mackay referred to what had been said by Lord Atkin in Andrews v DPP [1937] AC 576 including, at 583 – “Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case…… But it is probably not all-embracing, for ‘reckless’ suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.”[24]Lord Mackay continued at 187 – “The ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.” A little later on the same page Lord Mackay said – “I consider it perfectly appropriate that the word ‘reckless’ should be used in cases of involuntary manslaughter, but as Lord Atkin put it ‘in the ordinary connotation of that word’. Examples in which this was done, to my mind, with complete accuracy are R v Stone [1977] QB 354 and R v West London Coroner ex parte Gray [1988] QB 467.”[25]The decision of the Court of Appeal in Adomako is reported under the name R. v. Prentice [1994] QB 302. Lord Mackay summarised the decision of the Court of Appeal at page 183:
“The Court of Appeal held that except in cases of motor manslaughter the ingredients which had to be proved to establish an offence of involuntary manslaughter by breach of duty were the existence of the duty, a breach of the duty which had caused death and gross negligence which the jury considered to justify a criminal conviction; the jury might properly find gross negligence on proof of indifference to an obvious risk of injury to health or of actual foresight of the risk coupled either with a determination nevertheless to run it or with an intention to avoid it but involving such a high degree of negligence in the attempted avoidance as the jury considered justified conviction or of inattention or failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant's duty demanded he should address; and that, in the circumstances, the appeals of the two junior doctors and the electrician would be allowed and the appeal of the anaesthetist, namely Dr. Adomako, would be dismissed.”
[26]Applying Lord Mackay’s analysis of gross negligence manslaughter to the facts of the case as found by the jury, Dr Adomako owed the deceased a duty of care, he was in breach of that duty by failing to take the steps which a reasonable anaesthetist would have taken, that breach caused the death and the conduct of Dr Adomako in failing to take these steps created a serious risk of death. Each of these four ingredients requires the application of an objective test, that is a test which excludes consideration of the defendant’s state of mind.[27]If it was necessary to put the defendant into one of the categories listed by the Court of Appeal (and Lord Mackay does not suggest that it was necessary), the appropriate category would have been the last:
“inattention or failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant's duty demanded he should address.”
[28]It is clear from what Lord Mackay said that there is a fifth ingredient:
“criminality” (albeit defining the ingredient in this way “involves an element of circularity”) or “badness”
. Using the word “badness”, the jury must be sure that the defendant’s conduct was so bad as in all the circumstances to amount “to a criminal act or omission”. Lord Hewart C.J. in Bateman used the words: “to amount to a crime against the state and conduct deserving punishment”, that is, conduct which does not merely call for compensation but for criminal punishment.[29]It is clear that subjective recklessness (actual foresight of risk) is not a pre-requisite for a conviction for gross negligence manslaughter. The thrust of the case against Dr Adomako was that he had failed to notice or respond to the obvious signs. If he had noticed that a disconnection had occurred or that breathing had stopped he would have taken action- but he had not. It is also clear that the presence of subjective recklessness may be taken into account by the jury as a strong factor demonstrating that the defendant’s negligence was criminal. This was confirmed inAttorney-General’s reference (No 2 of 1999) [2000] QB 796 and in R v DPP ex parte Jones [2000] IRLR 373, a decision on which Mr Hunt places considerable reliance.[30]In the first of those cases the Attorney-General asked the Court of Appeal Criminal Division to consider two questions arising out of the ruling of a trial judge in relation to the prosecution of a railway company for gross negligence manslaughter which was said to have been a cause of a train crash. The questions were – “(1) Can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant’s state of mind? (2) Can a non-human defendant be convicted of the crime of manslaughter by gross negligence in the absence of evidence establishing the guilt of an identified human individual for the same crime?”[31]The court answered the first question in the affirmative, and the second question in the negative. At 809 Rose LJ said in relation to question 1- “Although there may be cases where the defendant’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a prerequisite to a conviction for manslaughter by gross negligence. The Adomako test is objective but a defendant who is reckless as defined in R v Stone may be the more readily found to be grossly negligent to a criminal degree.” In the case of Stone Geoffrey Lane LJ had said at 363 that where a defendant had undertaken a duty of care for the health and safety of an infirm person the prosecution had to prove – “A reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.”[32]In R v DPP ex parte Jones the facts were as follows. Mr Martell, the Managing Director of a company called Euromin, had arranged for a dockside crane to be adapted, so that with the jaws of the grab bucket open bags could be attached to hooks fitted within the bucket. Jones was in the hold of a ship loading bags onto the hooks when the jaws of the bucket closed and he was decapitated. In deciding not to prosecute the managing director and the company for gross negligence, the lack of subjective recklessness on the part of Mr Mantell was “dispositive” (see paragraph 36 of the judgment of Buxton LJ). In paragraph 23 of his judgment Buxton LJ referred to Adomako and the passage at page 809 of the Attorney-General’s Reference case which we have already set out, and at paragraph 24 he continued – “The law is, therefore, quite clear. If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal, but negligence will still be criminal in the absence of any recklessness if on an objective basis the defendant demonstrated what, for instance, Lord Mackay quoted the Court of Appeal in Adomako as describing as: ‘failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant’s duty demanded that he should address. That is a test in objective terms.” ‘failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant’s duty demanded that he should address.[33]The issue raised in the present case by Mr Hunt is whether the state of mind of the defendant is a factor which the jury may take into account in the defendant’s favour when considering whether his conduct is so bad as to amount to a criminal offence.Mr Hunt submitted that subjective recklessness may help to establish a prosecution case, but that otherwise the state of mind of the proposed defendant is irrelevant.[34]That seems to us to be an unrealistic approach which the authorities do not require, which no judge would enforce, and which no jury would adopt. Once it can be shown that there was ordinary common law negligence causative of death and a serious risk of death, what remains to be established is criminality or badness. In considering whether there is criminality or badness, Lord Mackay makes it clear that all the circumstances are to be taken into account.[35]An examination of the Court of Appeal decision in Prentice also shows that Mr Hunt’s submission is not supported by authority. Doctors Sullman and Prentice successfully appealed their convictions for manslaughter arising out of the death of a patient Malcolm Savage. We take the facts from the judgment of the Court of Appeal at page 325. “Malcolm Savage, aged 16, suffered from leukaemia. He came regularly for treatment with cytotoxic drugs at the Peterborough General Hospital. Once a month he was injected intravenously ("I.V.") with vincristine and every other month intrathecally ("I.T.") with methotrexate, that is into his spine. Malcolm Savage was due for both his injections on 28 February 1990. On the previous day the consultant in charge, Doctor Fairham, filled out the necessary prescription forms and the patient's drugs' chart. He sent them to the pharmacy department to be prepared for injection. Doctor Fairham had no doctors working directly under him. If he needed junior doctors, he used those working for a fellow consultant, Doctor Dronfield. The latter worked in general medicine and gastroenterology. Under him were his registrar, Doctor Chuah, his houseman, Doctor Sullman, and a pre-registration houseman, Doctor Prentice. The drugs were duly prepared by the pharmacy and taken to the ward which Malcolm Savage was due to attend. They were put in a red box bearing labels indicating that they were cytotoxic drugs. Also on the outside of the box were two labels bearing the patient's name, the name of the drug and the route by which it was to be injected, that is bearing either the letters "I.T." (intrathecal) or "I.V." (intravenous). Inside the box were the two syringes containing the drugs. They too bore labels with the same information upon each of them as the labels on the outside of the box. The drugs chart showing Doctor Fairham's prescription usually was put with the patient's medical notes which went on the trolley with the drugs. It is not clear if that happened in this case. Sometime on 27 February 1990 Doctor Prentice was informed by Doctor Fairham's secretary that Malcolm Savage was coming in for his lumbar puncture on the next day. Doctor Prentice was not told then that he would be giving the lumbar puncture. On 28 February 1990 the box of cytotoxic drugs was put out on a trolley in the ward. Normally cytotoxic drugs are put on a special cytotoxic trolley which also contains the manufacturers' data sheet. But on this occasion the lumbar-puncture trolley was used because it was larger and could hold all the necessary equipment. Unfortunately, the data sheet was not transferred from the cytotoxic to the lumbar-puncture trolley. The medical notes were on the trolley, but whether the drugs chart was there is not clear. About 9.30 a.m. Malcolm Savage and his mother arrived at the ward. Doctor Prentice told them that he did not know if he would be dealing with the matter as he was inexperienced. He then saw the registrar, Doctor Chuah, and told him that Malcom Savage had come in for his cytotoxic and added that he was reluctant to do it because of inexperience. Doctor Chuah asked him to get Doctor Sullman to supervise him, but added that if Doctor Sullman had not done a lumbar puncture previously he would supervise the treatment himself. Doctor Sullman had only once previously attempted to do a lumbar puncture and that attempt had failed. He had some limited previous experience of cytotoxic drugs and on one occasion previously had injected vincristine intravenously. A ward sister saw Doctor Prentice with Doctor Sullman. Doctor Prentice made known to her his concern about doing the lumbar puncture. Doctor Sullman agreed to supervise. The sister considered that Doctor Sullman was going to supervise Doctor Prentice doing a lumbar puncture. But here it appears that an important and regrettable misunderstanding took place. Doctor Prentice thought Doctor Sullman was supervising the whole procedure, including the administration of the cytotoxic drugs. Whereas Doctor Sullman thought he was there only to supervise the use of the needle to make a lumbar puncture but had no responsibility over the administration of the cytotoxic drugs. A responsible nurse set up the trolley ready for the lumbar puncture and took that and the red box with the drugs to the side ward where the patient and the two doctors were. As it happened there were two student nurses on the ward who wished to watch the lumbar puncture. Seeing that there were two doctors and two student nurses present, the nurse left. In view of the misunderstanding between Doctor Prentice and Doctor Sullman, this was unfortunate. The two student nurses had no experience of cytotoxic drugs and, as students, were not allowed even to touch them. Before the lumbar puncture a local anaesthetic was administered by Doctor Prentice. One of the student nurses handed him the local anaesthetic, reading aloud its name in accordance with her training as she did so. After that had been done, Doctor Prentice inserted the lumbar puncture needle into the spine successfully. A little spinal fluid leaked out. This sometimes happens, but it appeared to trouble Doctor Prentice. He then asked for a pair of goggles, which was the normal procedure when dealing with cytotoxic drugs. After putting them on, he asked for the drugs themselves. Both student nurses refused to touch them because they were not allowed to. Doctor Sullman opened the red box, took out the first syringe and handed it to Doctor Prentice, warning him that it was now unsterile. Doctor Sullman was not scrubbed up, nor was he wearing gloves, so he was unsterile. It is not clear how Doctor Prentice understood this comment by Doctor Sullman. Doctor Prentice then fitted the syringe on the needle and injected it into the patient's spine. He then unscrewed that syringe and took the second syringe from Doctor Sullman and also injected that into the spine. Neither doctor checked the labels on the box or the labels on the syringes before these two injections. So it was that the vincristine was injected wrongly into the spine with fatal results. A little later, after the patient had been cleaned up and the trolley removed to the preparation room, Doctor Fairham arrived. He quickly discovered that a terrible mistake had been made. Doctor Prentice went to the preparation room and looked at the data chart on the cytotoxic trolley. He was extremely upset and said:
"Oh my God. It can be fatal."
From this it can be inferred that he had never previously read the data sheet and had never been informed by anyone that an injection of vincristine into the spine could be fatal.”[36]In the words of the Court of Appeal: “The prosecution case against Doctor Sullman was put in two ways. First, that he had a duty to supervise the whole operation and ensure that the right drugs were inserted in the right place, by checking the labels and making sure that Doctor Prentice injected the drugs correctly. Secondly, they said that even if he did not have a duty to supervise the whole operation, he had a duty to intervene when he saw Doctor Prentice was preparing to inject the patient without having checked the labels himself. It was said that on one or other of these grounds his conduct was reckless.[37]The Court then examined the summing-up in so far as it related to the ingredients of manslaughter and continued: In effect, therefore, once the jury found "that the defendant gave no thought to the possibility of there being any such risk," on the judge's directions they had no option but to convict. Mr. Arlidge's point is that if the jury had been given the gross negligence test, they could properly have taken into account "excuses" or mitigating circumstances in deciding whether the necessary high degree of gross negligence had been established. The question for the jury should have been whether, in the case of each doctor, they were sure that the failure to ascertain the correct mode of administering the drug and to ensure that only that mode was adopted was grossly negligent to the point of criminality having regard to all the excuses and mitigating circumstances in the case. Of those, there were many. Doctor Prentice was required to give the treatment without the consultant who prescribed it giving any instruction or thought as to who should do so. This, despite the fact that Doctor Prentice was inexperienced, reluctant to give the treatment and wholly unaware (as, it seems, was Doctor Fairham) of the likely fatal consequences of giving vincristine by lumbar puncture. Doctor Prentice did not have the data chart on the cytotoxic trolley because that trolley was not in use. The senior nurse was not present, leaving only two students at the scene. Moreover, having asked for supervision and believing that Doctor Sullman was supervising the whole treatment, he was actually handed each of the two syringes in turn by Doctor Sullman and administered the drugs under his very eyes. So far as Doctor Sullman was concerned, he believed he was simply required to supervise the insertion of the lumbar puncture needle by an inexperienced houseman. He understood the drugs were for administration by lumbar puncture. He did not have special experience or knowledge of cytotoxic drugs. Although the box in which the drugs came was red and properly labelled, it was accepted that to put the two syringes into the same box was bad practice which is no longer followed. Had the directions to the jury left it open to them to take these matters into account on the specific issue of gross negligence which we hold was the right issue, they may well, in our judgment, have concluded that the prosecution had failed to establish that essential ingredient. Accordingly, in our view the appeals of these two appellants must be allowed and their convictions quashed.”[38]The fact that Dr Prentice was “inexperienced, reluctant to give the treatment and wholly unaware ... of the likely fatal consequences” were all factors which the jury were entitled to take into account in the defendant’s favour. Likewise in Dr Sullman’s favour, his belief and his understanding could be taken into account.[39]There is further authority for the proposition that the state of mind of the defendant is a factor which the jury may take into account in the defendant’s favour in the passage which we have cited from the Attorney-General’s Reference case and which was cited by Buxton LJ in Jones. Rose LJ makes it clear that the defendant’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct.[40]It follows that it is relevant to look at all of the circumstances, many of which may cast light upon the defendant’s state of mind, and Mr Hunt’s criticisms of Mr Enzor for having regard to factors indicative of the lack of awareness of risk on the part of the carers were in our view misconceived. In paragraph 7.5 of his re-review Mr Enzor said - “In my view, the proper approach to a case like this should be to assess the quality of the conduct/omissions and to consider whether a properly directed jury is more likely than not to conclude that the conduct/omissions was so bad as to be criminal. In so doing, it is important to ensure that a properly objective approach is taken. This means that issues such as the awareness of risk by the accused is not a prerequisite to a finding of gross negligence. Of course if there was subjective recklessness, i.e. say the accused realised that there was a level of risk but decided to run it, that may well make it easier to determine that the conduct was so bad as to amount to gross negligence. On the other hand, the lack of subjective recklessness most emphatically does not preclude prosecution.” That seems to us to be right, but it must not lead to a blinkered approach because, as Mr Enzor said in his paragraph 7.7 – “I consider that I must also look at ‘all the circumstances in which the (accused) was placed.”[41]We turn brieflyto the second question posed by the Attorney-General case. Rose LJ at 813 rejected the suggestion that aggregation has any proper role to play, and at 815 he said – “Unless an identified individual’s conduct, characterisable as gross criminal negligence, can be attributed to the company, the company is not, in the present state of the common law, liable for manslaughter. ” For obvious reasons that is also the position in relation to a local authority.[42]In relation to corporate manslaughter Mr Enzor said at paragraph 7.9 – “We would need to prove that the act or omission causing the death was the act or omission of a person who is the embodiment of the corporation and was acting as the corporation. Further, that person must be sufficiently senior to be a directing mind and will of the corporation.”[43]Mr Hunt does not seriously dispute that proposition, but he submits that the defendant should have also considered whether there was someone responsible for the management of the home who might as an individual be prosecuted for gross negligence manslaughter.

European Convention

[44]Mr Enzor also recognised that had the European Convention been part of English law when Malcolm died the claimant could have said that there was a breach of Article 2 because appropriate safeguards had not been put in place to protect his right to life. Mr Hunt and Mr Friedman also sought to rely upon Article 2 in ways to which we will return later in this judgment.

Mr Ensor’s conclusions

[45]Mr Enzor rightly analysed separately the case against each potential defendant, namely Brenda Mather, Sarah Peters and the Council. The grounds on which relief is sought do not adopt the same approach, and an attempt is made to read across from the evaluation of the case against Sarah Peters to the evaluation of the case against the Council in order to establish inconsistency. It is not contended that this court should interfere with Mr Enzor's evaluation of the case against Brenda Mather so we can go straight to the case against Sarah Peters. Mr Enzor found evidence of negligence and causation and then turned to consider gross negligence. He set out the factors which he considered to be in favour of such a finding including, as he put it, in paragraph 9.21 – “The simple fact that a severely disabled person, who could do virtually do nothing for himself, was left unsupervised in the bath, posing an obvious risk of death. In my view, it did not require risk assessment, training or written instructions to realise this. Plain common sense should have dictated that this practice was unsafe.”[46]Mr Hunt relies on that passage which he regards as in law decisive. Mr Enzor went on to deal with Malcolm’s epilepsy, and his lack of control of his head, of which he considered that Sarah Peters must have been aware. He referred to the occasion when Malcolm fell asleep, and the fact that David was never left alone. He looked for subjective recklessness “as its presence would strengthen a case” but found none, there being no evidence that it had ever crossed Sarah Peters’ mind that she was placing Malcolm at risk, not least because he had always kept his head out of the water in the past. Mr Enzor also found no evidence of wilful neglect.[47]Mr Enzor then considered factors militating against a finding of gross negligence, and began with the practice of other carers. Mr Hunt submits that other carers did not it seems leave Malcolm unattended for as long as five minutes, but save for one carer the evidence as to that seems to be, not surprisingly, imprecise. Mr Enzor then referred to the senior position of Mrs Mather. Mr Hunt disputes her seniority, but for what it was worth it was there, and Mrs Mather did not apparently even suggest that Malcolm should not be left unattended. There was, Mr Enzor pointed out, no formal policy of identifying and managing risks, and no effective support for Sarah Peters from her managers, and, in all of the circumstances, Mr Enzor concluded that a properly directed jury would be unlikely to find that the conduct of Sarah Peters was so bad as to be grossly negligent and therefore a crime. Despite all that was said to us by Mr Hunt, both on paper and in oral argument, we regard both the approach of Mr Enzor and his conclusion in relation to Sarah Peters as unassailable.[48]We turn now to consider the way in which Mr Enzor evaluated the case against the Council. Here again Mr Enzor found a causative breach of duty, but as he noted at paragraph 9.36 there were a number of people in the management chain who carried some responsibility, such as Peter Warren or Brian Grant. The latter was a manager but was not, in the opinion of Mr Enzor, sufficiently senior to be a directing mind and will of the Council and no one has suggested otherwise to us. Leaving that problem to one side, Mr Enzor identified factors in favour of a finding of gross negligence against the Council, such as the failure to make a proper risk assessment in relation to a severely disabled resident, the failure properly to train, appraise and supervise, the lack of a safe bathing policy, the absence of reference to health and safety in the care-plan, the failure to update it, and the absence of written instructions.[49]Militating against a finding of gross negligence Mr Enzor found the Council was entitled to expect that carers would use common sense in adopting safe systems of work. “It should not have required a formal policy to see that leaving a severely disabled person unattended in the bath would be likely to lead to death.” That, Mr Hunt submits, is in tension with the approach adopted in relation to Sarah Peters, but in our judgment there is no tension because the reasonable perception of the employer is often in danger of being at odds with that of the individual employee. Mr Enzor went on to point out that some risks were managed, some training was provided, and the staff seemed to have been appropriately experienced, so he concluded in paragraph 9.51 that – “Looking at the position of the Council in the round, I do not think that the case can be made out that the conduct of the council as a whole was so bad as to be grossly negligent and therefore a crime.” Having referred again to the difficulty of identifying anyone who could be described as a directing mind and will of the Council, Mr Enzor concluded that in the absence of conduct so bad as to be capable of being described as gross negligence “further investigation to identify an individual who might be personally guilty is hard to justify”.[50]Having considered the potential defendants separately Mr Enzor dealt with other issues. He said that the Council having been prosecuted by the HSE, a prosecution for manslaughter would fall foul of R v Beedie [1997] 2 Cr App R 167. He noted that in November 1999 Sarah Peters had been told she would not be prosecuted. A prosecution initiated years later would, he suggested, be very likely to be stayed on the grounds of abuse of process. He noted that his own conclusions were in line with the verdict at the inquest, and the conclusion of Mrs Worrall of the HSE.

Grounds on which relief are sought

[51](1) We can now deal quite briefly with the specific grounds on which relief is sought. First it is said that the defendant applied the wrong legal test for gross negligence manslaughter by considering and placing weight upon the lack of subjective recklessness on the part of the prospective defendants. Alternatively the test was applied irrationally. In our view it is apparent that Mr Enzor did have an accurate appreciation of the legal test and adopted an entirely appropriate approach to the question of subjective recklessness. It was relevant not determinative.(2) The second ground on which relief is sought is that the defendant failed to take into account various relevant factors, such as positive evidence of subjective recklessness on the part of Sarah Peters, and took into account matters which are said to have been irrelevant. The submission in relation to Sarah Peters is simply an attempt to re-evaluate her position in the light of all the evidence, and it is apparent to us that Mr Enzor did have regard to all of the evidence. His evaluation is then attacked on the basis of his reference to Sarah Peters being junior to Mrs Mather and his reference to the inquest verdict. We have already dealt with the former, and the reference to the inquest verdict was sensible and appropriate. It was unnecessary for Mr Enzor to conduct any analysis of the verdict because, as he made clear, he did not place particular weight on it. He concentrated he said on the merits of the case.[52]In relation to the Council it is said that there was evidence of subjective recklessness because the Council was aware of the need for risk assessment but failed to act. In fact Mr Enzor specifically considered the question of risk assessment as part of his evaluation, and it is said, so far as we can see without any real foundation, that Mr Enzor “wrongly placed some weight on the direction of the Coroner to the jury that there was no evidence of corporate responsibility”. In fact in a paragraph in his witness statement dealing with the claimant’s criticisms of the conduct of the inquest Mr Enzor simply noted that the Coroner appears to have excluded the Council from corporate responsibility, and then observed “this matches my own view of the case so far as its relates to criminal liability for manslaughter”.[53]Then it is said that under Article 2 of the European Convention the defendant bears responsibility as a public authority to contribute to the adjectival duty to investigate death, and that it cannot be an answer to the current failings in the defendant’s investigations to abdicate his own responsibility because of the past failings of the inquest. That, as Mr Keith for the defendant submitted, seems to be an attempt to cast the defendant in a role for which he is not fitted. It is no part of his function to investigate the adequacy of the inquest. If that has to be done it can be done by way of judicial review. Furthermore the defendant has no power to order or carry out any investigations in relation to the cause of the death. If asked for advice he can, as Mr Lord did, indicate that further information is required before the advice can safely be given, and when he has all of the material that the police or any one else wishes to place before him it is his duty to decide whether or not to prosecute, but that is the limit of his role. In saying that we do not exclude the possibility that even at the final stage the defendant may want to suggest further enquiries, the results of which may help him to reach a satisfactory conclusion, but in our judgment the adjectival duty which can arise under Article 2 has nothing to offer in relation to the facts of this case. (3) The third ground is that the defendant failed to indicate how important each factor was in his overall assessment as to whether or not the evidential test was satisfied in relation to each potential defendant. Mr Enzor accepts in his witness statement that not all of the factors are of equal weight, but he goes on to explain that separate weighting was not in his view was practical or appropriate, saying – “My approach was to consider all of the factors I had identified in the round, as the jury would be directed to do. In so doing, I asked myself the question whether, taking the factors I had identified into account, a properly directed jury would be more likely than not to convict of the offence of gross negligence manslaughter. I concluded that they would not.” In our judgment that was a correct approach. (4) The fourth ground is really an amplification of the Article 2 point made in relation to ground 2. It is said that the defendant failed to exercise his power under section 3(2)(e) of the Prosecution of Offences Act 1985 to advise the police to make further enquiries or seek out further evidence compatibly with Article 2 which, in all of the circumstances, required further enquiries to be made to satisfy the procedural obligation properly to investigate the death of a person in the state’s care. We accept that, as contended, the defendant is obliged by section 6 of Human Rights Act 1998 to exercise his powers compatibly with Convention rights, and that it is the duty of the state properly to investigate the circumstances of the death of a person who was under the care of a public authority when he died. In Jordan v UK [2002] 11 BHRC 1 the European Court of Human Rights considered the adequacy of inquest and judicial review proceedings which followed a death in Northern Ireland allegedly caused by shots fired by a police officer. In paragraph 105 of its judgment the court said – “The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the state’s general duty under Article 1 of the Convention to “secure to everyone within (its) jurisdiction the rights and freedoms defined in (the Convention), also requires by implication that there should be some form of effective official investigation when individuals have been killed as the result of the use of force …. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for death occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever form is employed, the authorities must act of their own motion, once the matter has come to their attention.” The court went on to say that the investigation must be effective, prompt, open and involve the next of kin.[54]That obligation upon the state first articulated in the circumstances to which we have referred has been considered in subsequent cases, and recently in R (Amin) v Secretary of State for the Home Department [2002] 2 WLR 505 where the Court of Appeal considered inquest and judicial review proceedings arising out of two deaths in custody, one caused by the violence of a cell-mate and the other by suicide. The court reviewed the European and domestic authorities, and at paragraph 62 Lord Woolf CJ said – “What is required will vary with the circumstances. A creditable accusation of murder or manslaughter by state agents will call for an investigation of the utmost rigour, conducted independently for all to see. An allegation of negligence leading to death in custody, though grave enough in all conscience bears a different quality from a case where it is said the state has laid on lethal hands. The procedural obligation promotes these interlocking aims: to minimise the risks of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxiety of the public. The means of their fulfilment cannot be reduced to a catechism of rules. What is required is a flexible approach, responsive to the dictates of the facts, case by case. ” So Mr Keith in his skeleton argument submits, in our judgment rightly – “The investigating body is not required to pursue evidential leads indefinitely, to establish that someone was responsible or to ensure that criminal liability attaches to an individual. In every case it is a question of taking reasonable steps to ensure that such evidence as is reasonably available is properly secured. In other words the investigation must be thorough.” Turning to the particular position of the defendant, he has no express or implied residual responsibility in that regard. His functions are prescribed by statute, and we see no reason why in order to fulfil the obligation of the state to comply with Article 2 he should, without any appropriate resources, be given an investigatory role which Parliament did not plainly assign to him. As it happens the point is of no real moment in the context of this case, because over the years since 1998 the tragic death of Malcolm has been carefully investigated time and again, and Mr Enzor was entitled to conclude as he did, in paragraph 9.53, that the prospects of establishing gross negligence manslaughter against any person of sufficient seniority to be regarded as the directing mind and will of the Council are not such as to justify further investigation. Perhaps it was in an attempt to circumvent that obviously reasonable conclusion that Mr Hunt submitted that further enquiries might identify an individual in some managerial post who knew of the near fatality in some other home to which reference was made by another carer and whose position and responsibilities in relation to 96 New Lane were such that he or she should be regarded as a person against whom proceedings for gross negligence manslaughter could be commenced with realistic prospects of success. It is true that save in his paragraph 9.54 Mr Enzor did not address that possibility directly but there was and is, as Mr Hunt recognises, no evidential basis for his speculation, and in our judgment, having regard to the duties and functions of the defendant, it must follow that the conclusions of Mr Enzor cannot be impugned on that ground.[55](5) The fifth and final ground on which Mr Hunt relies only arises if it can be shown that Mr Enzor was wrong to conclude as he did that further enquiries would not be justified and that neither the conduct of Sarah Peters nor that of the council was so bad as to be grossly negligent and therefore a crime. In our judgment those conclusions cannot be shown to be wrong so we need say little about ground five. In it Mr Hunt submits that the defendant was wrong to assume that any prosecution against Sarah Peters or the council would be stayed as an abuse of process on grounds of delay, legitimate expectation or by the application of principle enunciated in Beedie. Suffice it to say that if Sarah Peters were to be prosecuted we would expect the issue of abuse of process to be raised by reference to the delay and the assurance given to her in 1999. We do not know precisely how the case would be put on her behalf, and it seems to us to be far from certain what would be the outcome. So far as we know no assurance was given to any one who might be regarded as the directing mind and will of the council, and in its case delay would be unlikely to be regarded as of such significance as to justify the imposition of a stay, but the council was prosecuted and paid a significant fine. As Rose LJ said in Beedie at 360 the general rule is “that no man should be punished twice for an offence arising out of the same, or substantially the same, set of facts.” Lord Devlin observed in Connelly v DPP [1964] AC 1254 at 1360 that a second trial is not always and necessarily oppressive, but the principle was not impugned and many of the reasons for it (such as that a defendant should know the most serious charge he is to face at the outset, before he commits himself to any line of defence) apply just as much to a corporate defendant as to an individual. So, as in the case of Sarah Peters, if the council as a defendant were to raise the issue of abuse of process we find it difficult to say at this stage what would be the outcome. As Mr Keith accepted, Mr Enzor may have dealt with the issue of abuse of process in a way which was too favourable to the potential defendants, but for the reasons we have given nothing turns on that.[56]We would dismiss this application. We fear that the decision will disappoint the claimant, to whom tribute was rightly paid by Mr Keith for her determination to get to the bottom of the circumstances which led to the death of her son, but in these proceedings our function is only to consider with care the decision taken by the defendant in February 2002. That we have done, and in our judgment the decision must stand. Given that the defendant was correct in his understanding and application of the law, as we find that he was, everything else, and in particular his application of the evidential test to each potential defendant, was a matter within his discretion, and his conclusions on such matters are not conclusions with which we could in any event interfere unless satisfied that he was plainly wrong.

Cited in 1 later judgment