In deciding whether to bring a prosecution for gross negligence manslaughter, once it could be shown that there had been ordinary common law negligence causative of death and a serious risk of death, the only element left to be established was criminality or "badness". That was an element which required all the circumstances to be taken into account, many of which might cast light on the defendant's state of mind and might, if appropriate, be taken into account in the defendant's favour.Application by the claimant ('R') for an order to quash the decision of the defendant ('DPP') not to prosecute either Salford City Council ('the council') or one of its employees ('P') for gross negligence manslaughter in respect of the death of R's son ('M'). At the time of his death, M, who suffered from profound mental and physical disabilities, was in residential care at a home run by the council. M died as the result of drowning in some five inches of water after P, one of the carers at the home, left him unattended in a bath for a period of four to five minutes. It was standard practice for M to be left alone for such periods whilst in the bath; he had never previously got into difficulties and there were no written or oral instructions that he should not be left unattended. Subsequent investigations by the police and the Health and Safety Executive concluded that there was no sufficient basis for any prosecution in respect of manslaughter. The coroner recorded a verdict of accidental death, to which neglect had contributed. Having reviewed all the circumstances of the case, the DPP concluded that: (i) leaving M unattended in a bath presented an obvious risk of death; (ii) there was no evidence of subjective recklessness or wilful neglect on the part of either P or the council. He concluded, therefore, that neither P nor the council was guilty of conduct that was so bad as to be grossly negligent. R challenged that decision on the grounds that: (a) the DPP had erred in having had regard to and placed weight on the lack of subjective recklessness on the part of P and the council; (b) the DPP had taken immaterial considerations into account and had ignored material considerations; (c) the DPP's decision was inadequately reasoned; and (d) the DPP had wrongly declined to direct that further enquiries should be made into the circumstances of M's death.HELD: (1) In deciding whether to bring a prosecution for gross negligence manslaughter, once it could be shown that there had been ordinary common law negligence causative of death and a serious risk of death, the only element left to be established was criminality or "badness". (2) That was an element which required all the circumstances to be taken into account, many of which might cast light on the defendant's state of mind and might, if appropriate, be taken into account in the defendant's favour. The absence of subjective recklessness was one such circumstance. (3) It followed that the DPP had applied the correct test in law. (4) The remainder of R's grounds of challenge also failed.Application dismissed.

[2003] EWHC 693 (Admin)