Honey Maria Rose v R
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] EWCA Crim 1168 |
| Docket Number | Case No: 201603740 C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 July 2017 |
[2017] EWCA Crim 1168
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM IPSWICH CROWN COURT
MR JUSTICE STUART-SMITH
T20157159
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Haddon-Cave
and
His Honour Judge Inman QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
Case No: 201603740 C4
Ian Stern QC and Sandesh Singh (instructed by Stokoe Partnership, London) for the Appellant
Jonathan Rees QC and Karen Robinson (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 13 th June 2017
Judgment Approved
The question raised by this case can be simply stated. In assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, is it appropriate to take into account what a reasonable person in the position of the defendant would have known but for his or her breach of duty?
On 15th July 2016, Honey Maria Rose (now aged 35) was convicted in the Crown Court at Ipswich before Stuart-Smith J and a jury of manslaughter by gross negligence. She was sentenced, on 26th August 2016, by the same judge to a term of 2 years' imprisonment, suspended for 2 years, with a supervision order and unpaid work requirement of 200 hours, to be completed by 25th August 2017.
Ms Rose now appeals against conviction with leave of the single judge. On her behalf, it is submitted by her trial counsel, Ian Stern Q.C. and Sandesh Singh that the Judge was wrong to reject the defence application that there was no case to answer and, for the same reasons, erred in his directions to the Jury as to the elements of gross negligence manslaughter. The Crown (represented by Jonathan Rees Q.C. and Karen Robinson who also appeared below) support the approach taken in the Crown Court. We are grateful to counsel for their able assistance in this appeal.
The Facts
Ms Rose is a registered optometrist. She was first registered with the College of Optometrists in the UK on 13th February 2008. She trained abroad and passed her Non-EEA test for optometrists set by the General Optical Council in June 2010. In 2012, she worked part time at Boots Opticians in Upper Brook Street in Ipswich (previously operated by Dolland & Aitchison) as a locum optometrist.
On 15th February 2012, Joanne Barker took her two children, Vincent and Amber, to Boots Opticians in Ipswich for routine eye tests and examinations. Vincent (known to his family as "Vinnie") was aged 7 years 9 months and Amber was aged 4 years 11 months.
On that date, Ms Rose was on duty. She carried out the sight test on Vincent after retinal images had first been taken by an optical consultant/assistant. Following Vincent's examination, Ms Rose recorded no issues of concern and said that Vincent did not need glasses. The clinical record card which she filled out recorded: " Reasons for visit: routine check / had few H/ache over Xmas 2011, but now all gone". She specified the next appointment for Vincent should be in 12 months. Vincent's mother and sister also had sight tests and eye examinations carried out by Ms Rose. The three appointments lasted from 10:25 a.m. to 12:05 p.m.
Five months later, on 13th July 2012 whilst at school, Vincent was taken ill and vomited. The school rang his mother at about 2:50 p.m. and she collected him and took him home. His condition deteriorated during the afternoon. Around 8 p.m. he was discovered to be cold to the touch and plainly very ill indeed. The emergency services were called and paramedics attended. Efforts were made to resuscitate Vincent and he was rushed to Ipswich Hospital. By the time he arrived at Ipswich Hospital, however, Vincent was unfortunately in cardiac arrest. Every effort was made by the ambulance staff, doctors and nurses to resuscitate him, but after 40 minutes there was still no cardiac output. Following consultation with his parents, it was decided that resuscitation would be stopped and Vincent was formally pronounced dead at 9:27 p.m. by the on-call paediatrician, Mr Desai. Vincent had previously been a healthy, thriving and active boy, who had never before attended hospital.
When a child dies suddenly and unexpectedly, the SUDIC (Sudden Unexplained Death in Infancy & Child) protocol is implemented.
Medical investigation
Vincent's sudden and unexplained death was investigated by a consultant paediatric pathologist, Dr Marian Malone. On 20th July 2012, Dr Malone carried out a post mortem examination on Vincent at Great Ormond Street Hospital. On 9th August 2012, an examination of the brain was carried out by an honorary consultant in neuropathology, Dr Thomas Jacques, in the presence of Dr Malone. Dr Malone's findings were reviewed by another a consultant paediatric pathologist at Great Ormond Street Hospital. All three experts agreed that the cause of Vincent's sudden and premature death was acute hydrocephalus (i.e. acute build-up of cerebrospinal fluid within the normal ventricles of the brain because its normal outlet had been blocked); this was secondary to gliosis (a process leading to scarring of the nervous system) which caused gliotic obstruction of the rostral part of the fourth ventricle of the brain. It was agreed that the obstruction in Vincent's brain had been a longstanding chronic problem; but the case was unusual in that Vincent had not presented with many associated symptoms of hydrocephalus, such as headaches and vomiting.
Hydrocephalus requires early surgical intervention to drain the fluid and to prevent the fluid from accumulating, either by creating a bypass or inserting a shunt. Dr Helen Fernandes, a specialist neurosurgeon based in Cambridge and medical advisor to the Association of Spina Bifida and Hydrocephalus, prepared a report on the case. She explained that hydrocephalus was a treatable condition but required surgical intervention. In her opinion, Vincent's condition was treatable up until the point of his acute deterioration and demise on 13th July 2016. Thus, following his eye examination on 15th February 2016, there was no reason why Vincent's condition could not have been successfully treated at any time up until the fatal build-up of fluid on 13th July 2016. Her report was not disputed.
It was common ground that an optometrist has a statutory duty of care to examine the internal eye structure as part of a routine eye examination (see further below). The purpose of the examination is to detect signs of abnormality or disease, including life threatening problems evident from the optic nerve. An examination of the internal eye structure and back of the eye ( i.e. bio-microscopy) is normally carried out either with the use of an ophthalmoscope or a 'slit lamp'. An ophthalmoscope creates a 2D image. A 'slit lamp' is used in conjunction with a microscope which allows the optometrist to view the internal eye structure in 3D. Both instruments allow the optometrist to obtain a very good view of the optic disc, which is circular in a healthy person. Another means by which the condition of the eye can be checked is to review 'fundus' photographs which are in 2D, i.e. images taken by a retinal (fundus) camera.
It was agreed between the experts that a competent optometrist would know the significance of papilloedema (swelling of the optic nerve) and would immediately refer the case on to others. If an optometrist was unable to view the back of the eye, it would always be noted. It was the responsibility of the optometrist to view the correct retinal images and, in the absence of a full examination, the patient should also have been asked to return for a further eye examination within a much shorter period.
Fundus retinal camera
The Boots store in Ipswich had a fundus camera, which allowed retinal images to be captured of the eye. This image is limited to the central 45 degrees of the eye. The taking of retinal images was free for children and images were taken by an optical consultant/assistant prior to a sight test by an optometrist. On the day of his sight test, the records show that retinal images were taken of both Vincent's eyes using that camera. His right eye was photographed at 10:05:34 a.m. and his left eye at 10:06:01 a.m. The retinal images were stored in the Boots computer system. After the images were taken they are then viewed through software called "Topcon IMAGEnet". That software does not record when images are accessed.
Vincent's medical history
Vincent had had three eye examinations in his young life. The first examination was on 30th January 2010 when he was aged 5. The second was on 5th February 2011 when he was aged 6. The third was the examination on 15th February 2012 when he was nearly 8 years old carried out by Ms Rose. Both the second and third eye examination took place at Boots Opticians in Ipswich.
The records for the Boots examination were obtained and sent for review by Dr Vaileios Kostakis, a consultant paediatric ophthalmologist at Ipswich NHS Trust. Dr Kostakis reviewed a disc containing the fundus photographs and the handwritten notes made at the time of the examinations. He said that the 2011 examination of Vincent's eyes gave no cause for immediate concern and showed Vincent's eyes were healthy and all parameters were within normal limits. However, Dr Kostakis found that the retinal images taken of the back of Vincent's eyes in February 2012 were remarkably different from those taken in 2011 and showed significant congestion of the veins and swelling of the optic nerve. In his opinion, the second set of fundus photographs taken in February 2012 were abnormal and would cause concern and have given rise to urgent referral to hospital by any competent optometrist. Dr Kostakis observed that...
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