Whether ‘obvious and serious’ risk of death in cases of gross negligence manslaughter to be determined both objectively and prospectively
| Date | 01 October 2017 |
| DOI | 10.1177/0022018317733838 |
| Published date | 01 October 2017 |
| Subject Matter | Court of Appeal |
Court of Appeal
Whether ‘obvious and serious’ risk of death in cases
of gross negligence manslaughter to be determined
both objectively and prospectively
RvRose [2017] EWCA Crim 1168
Keywords
Gross negligence manslaughter, ‘obvious and serious’ risk of death
In February 2012, Honey Rose (R), a registered optometrist based at a branch of Boots Opticians in
Ipswich, conducted a routine eye test and examination on Vincent Barker (B), aged 7. Pursuant to s.
26(1) of the Opticians Act 1989, R had a statutory duty of care as an optometrist to examine the internal
eye structure as part of a routine eye examination, to detect signs of abnormality or disease including
life-threatening problems evident from the optic nerve. However, she did not examine B’s eyes using an
ophthalmoscope. Another member of Boots’ staff had taken retinal images of B’s eyes earlier that day.
These showed swelling of the optic discs at the end the optic nerve (bilateral papilloedema), an indi-
cation that an obstruction in B’s brain was causing a build-up of cerebrospinal fluid in the ventricles of
the brain (hydrocephalus), a treatable but potentially fatal condition. However, R did not inspect these
images either. As a result of the failure to either use the ophthalmoscope or inspect the retinal images, R
recorded no issues of concern with B’s eyes.
In July 2012, 5 months after the examination, B was taken ill while at school. He was sent home
in the afternoon but, when his condition deteriorated over the evening, paramedics were called. He
was taken to hospital but by this time he was in cardiac arrest. Attempts at resuscitation were
unsuccessful and he was pronounced dead at 9.27 pm. Three experts looked into the cause of B’s
death. They agreed that the cause of B’s death was acute hydrocephalus and that the obstruction in
his brain had been a longstanding chronic problem.TheyalsoagreedthatB’scasewasunusual
because he had not presented with many associated symptoms of hydrocephalus, such as headaches
and vomiting. B’s condition was said to have been treatable (by draining the build-up of fluid and
creating a bypass or inserting a shunt to prevent a repetition) up to the point of acute deterioration
and death, that is, in July 2012.
R was arrested. She claimed that she had not examined B’s eyes with the ophthalmoscope because B
had had ‘poor fixation’ and slight photophobia, a versionof events which was contradictedby B’s mother,
who was presentat the examination. R also told the police thatshe had examined retinal images butnot the
ones taken ofB on the morning of the sight test;she said that the images she viewedmust have been images
taken at B’s previous eye examination 12 months earlier. (At the trial, she said that the images she
examined must have been of a different patient altogether.) R was charged with gross negligence man-
slaughter and appeared before Stuart-Smith J and a jury at Ipswich Crown Court in July 2016.
The Journal of Criminal Law
2017, Vol. 81(5) 343–351
ªThe Author(s) 2017
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DOI: 10.1177/0022018317733838
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