Law Report: Manslaughter guidance: Regina v Prentice and others. Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Henry and Mr Justice Blofeld), 20 May 1993

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Guidance was given on the proper test of involuntary manslaughter by breach of a professional duty of care.

The Court of Appeal allowed the appeals of Dr Michael Prentice, Dr Barry Sullman and Stephen Holloway, against their convictions for manslaughter, but dismissed the appeal of Dr John Asare Adomako.

Anthony Arlidge QC and Alan Jenkins (Hempsons) for Prentice, and Adrian Whitfield QC and Martin Reynolds (assigned by the Registrar of Criminal Appeals) for Sullman; Stephen Coward QC and Philip Head (CPS) for the Crown; Richard Du Cann QC and James Watson (Le Brasseur) for Adomako; Ann Curnow QC and Anthony Leonard (CPS) for the Crown; Roger Titheridge QC and James Turner (Registrar of Criminal Appeals) for Holloway; Anthony Webb (CPS) for the Crown.

LORD TAYLOR OF GOSFORTH LCJ, giving the court's judgment, said two of the cases involved doctors administering treatment which resulted in the death of patients; the third involved an electrician wiring up a wrongly-earthed central heating system which delivered a lethal shock. The question was what degree of negligence was required to support a manslaughter charge.

In Andrews v DPP (1937) AC 576, Lord Atkin said that '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.'

In Stone and Dobinson (1977) 1 QB 354, Lord Justice Lane, referring to Andrews, said: '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.' Lord Diplock gave his well-known definition of recklessness in regard to the Criminal Damage Act 1971 in Caldwell (1982) AC 341 and in regard to section 1 of the Road Traffic Act 1971 (as amended) in Lawrence (1982) AC 510. The actus reus consisted of the defendant creating an obvious and serious risk. The mens rea was defined as 'without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nevertheless gone on to take it'.

That wide definition of recklessness had caused problems in regard to involuntary manslaughter involving breach of duty.

In their Lordships' judgments the proper test was the gross negligence test established in Andrews and Stone and Dobinson. Accordingly, except in motor manslaughter (which remained governed by Lawrence) the ingredients of involuntary manslaughter by breach of duty which need to be proved were: (1) the existence of the duty; (2) a breach of the duty, causing death; and (3) gross negligence which the jury considered justified a criminal conviction.

It was not possible to prescribe a standard jury direction appropriate in all cases. But proof of any of the following states of mind in the defendant might properly lead a jury to make a finding of gross negligence: (a) indifference to an obvious risk of injury to health; (b) actual foresight of the risk coupled with the determination nevertheless to run it; (c) an appreciation of the risk coupled with an intention to avoid it, but also coupled with such a high degree of negligence in the attempted avoidance as the jury considered justified conviction; (d) inattention or failure to advert to a serious risk which went beyond 'mere inadvertence' in respect of an obvious and important matter which the defendant's duty demanded he should address.