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Rowley v DPP [2003] EWHC 693 Divisional Court of the Queen's Bench Division

Malcolm Rowley, aged 30, had severe disabilities suffering from quadriplegia, microcephaly and epilepsy. He was in residential care. He drowned in the bath when he was left unattended. His mother bought an action challenging the decision of the Crown Prosecution Service not to prosecute the care providers. Her appeal against the decision was unsuccessful.

Kennedy LJ made the following observations of the law relating to gross negligence manslaughter:
"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.

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 in Attorney-General's reference (No 2 of 1999) [2000] QB 796 and in R v DPP ex parte Jones [2000] IRLR 373

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. "
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