The test of whether someone was guilty of negligence so gross as to justify their being prosecuted for manslaughter was necessarily imprecise and a prosecutor was entitled to decide that a landlord, who had failed to implement fire safety precautions required by the local authority, should not be prosecuted after someone had died in a fire at his premises.
The Queen's Bench Divisional Court dismissed an application by Jennifer Jones for judicial review of a decision of the Director of Public Prosecutions, acting by the Crown Prosecution Service, not to prosecute Richard Boddington for an offence of manslaughter following the death of Miss Jones's 20- month-old daughter, Terri-Ann, in a fire at premises owned by Mr Boddington.
Douglas Day QC and Colin Davis-Lyons (Shelter) for the applicant; Alan Moses QC and T. Kerr (CPS, Yorkshire) for the DPP; Malcolm Swift QC and Adrian Dent (Grunwells, Scarborough) for Mr Boddington.
Lord Justice Auld said Mr Boddington was the owner of the Richmond Hotel at 60-68 North Marine Road, Scarborough, which he ran as a home for homeless people, most of whom paid rent by means of housing benefit. Each person or family occupied one room in which they slept and cooked.
In November 1993 Scarborough Borough Council served on Mr Boddington a notice requiring him to undertake improvements in the fire safety precautions at the premises. Mr Boddington said he was unable to meet the substantial cost of the new works without a council grant. No further progress had been made before the fatal fire occurred.
Miss Jones, together with her partner, John Devlin, and their two children, Natasha and Terri-Ann, had taken room 35 on the second floor in early January 1994. All four slept in one room except when the occupant of room 36 was away, when the children slept in there. They would be locked in the room at night to prevent them playing in the corridors and disturbing other residents.
In the early hours of 5 May 1994 a fire broke out in room 32 on the second floor. One of its occupants, Katherine Harrison, died. The other escaped and alerted Mr Boddington. He then alerted other residents, including Miss Jones, who was sleeping alone in room 35. She went to unlock the door to room 36 but was unable to reach it because of smoke in the corridor. The fire brigade rescued the children but Terri-Ann died on the way to the hospital.
Inquests were held in October 1994. The jury returned a verdict of unlawful killing in respect of Terri-Ann Jones and of accidental death in respect of Katherine Harrison. After the inquest Ian Stamp, a special casework lawyer for the Yorkshire Area of the CPS, agreed to reconsider an earlier dec-ision not to prosecute Mr Boddington. But he adhered to his original view that there was insufficient evidence to provide a realistic prospect of conviction for involuntary manslaughter.
The applicant's case was that Mr Stamp had misdirected himself on the test of involuntary manslaughter. The test was not whether a jury would be sure that Mr Boddington was guilty of a "very high degree of negligence" as Mr Stamp had said in his affidavit, but, as explained by Lord Mackay LC in R v Adomako  1 AC 171 at 187, whether Mr Boddington was guilty of negligence which could be characterised as gross in the light of "the seriousness of the breach of duty committed by [him] in all the circumstances in which [he] was placed when it occurred".
In his Lordship's judgment, the applicant's argument wrongly treated part of Lord Mackay's reasoning as a statutory formula to be incanted to demonstrate its application.
It was plain from his affidavit that Mr Stamp had applied the necessarily imprecise Adomako test, namely whether there was a realistic prospect of proving Mr Boddington's breach of duty was so serious or "gross" or "so bad in all the circumstances as to amount . . . to a criminal act".
His Lordship also rejected the applicant's argument that Mr Stamp's decision was unreasonable in the sense defined in Associated Provincial Pictures Houses Ltd v Wednesbury Corporation  1 KB 223.