Introduction
On the 28th of October 2023, Adam Johnson, an ice hockey player for the Nottingham Panthers died during a game at Sheffield’s Utilita Arena. The Minnesota-born suffered a fatal neck injury, following a collision with Sheffield Steelers’ Matthew Petgrave. The coroner’s report stated that Mr. Johnson “sustained an incised wound to the neck caused by the skate of another player” which led to the death of the 29-year-old.
However, on the 29th of April 2025, the Crown Prosecution Service (CPS) stated that criminal charges will not be brought against Mr. Petgrave. To shed light on the matter, the Deputy Chief Crown Prosecutor, Michael Quinn, stated that “the CPS and South Yorkshire Police have worked closely together to determine whether any criminal charges should be brought [….] Following a thorough police investigation and a comprehensive review of all the evidence by the CPS, we have concluded that there is not a realistic prospect of conviction for any criminal offence”.
- The Offence of Homicide
[1.1] Fundamental Considerations
So how did the CPS arrive at this decision? To understand, we must first examine the law. To begin, one must consider the legal maxim, actus non facit reum nisi mens sit rea. The rule expresses one of the most fundamental ideas in our law when it comes to determining the criminal liability of an accused person. The maxim establishes that criminal liability involves two core elements to be proven by the prosecution. These elements are the actus reus (the physical element of a crime, such as the conduct or the result which, in fact, took place); and the mens rea (the mental element of a crime, which involves the mental culpability of the accused).
In our case, we are dealing with the crime of manslaughter. This is a lesser offence within the category of homicide-related offences. Thus, a charge of manslaughter arises in cases where an accused is found to be acting in self-defence, under provocation or due to diminished responsibility. Unsurprisingly, given this existing relationship between the offences – the actus reus for manslaughter is the same as for murder, that being the result of death. Thus, it can be observed that, mens rea, is the distinguishing factor between the respective offences.
Accordingly, in cases where the mental culpability of the accused falls short of the threshold required for murder, it follows that the offence must then inevitably amount to manslaughter. This was pointed out by Alan Cusack, who highlighted the dicta of the Court of Appeal in Director of Public Prosecutions v. Malone where it was observed that the offence of manslaughter “is capable of such a variety of manifestations, ranging from a case which will border on murder to one which will come nearer to misadventure than to homicide.”
[1.2] Manslaughter
It is important to note that the offence of manslaughter is broken up and organised into two separate categories: voluntary manslaughter; and involuntary manslaughter. The former is less relevant for the purposes of our analyses and therefore, it will only briefly be discussed.
- Voluntary Manslaughter
Generally, as per our discussion in para [1.1], voluntary manslaughter arises, only in instances, where an accused person successfully puts forth a partial defence to murder. That being, namely: the defence of provocation; diminished responsibility; and self-defence.
- Involuntary Manslaughter
It’s important to note that involuntary manslaughter is further divided into two groups. The first category, manslaughter by an unlawful and dangerous act, occurs where the accused commits a criminal offence that poses a significant risk of bodily harm, resulting in the death of another person. The second, gross negligence manslaughter, arises where the negligent act or omission of an accused, which carries a high likelihood of substantial injury to others, results in death. We will turn our attention to the latter instance of involuntary manslaughter. However, before proceeding, it’s worth noting the observation made by Charleton, McDermott and Bolger, which characterised the offence of involuntary manslaughter as the only “example in our criminal law where the accused may be found guilty of a serious criminal offence without the necessity of the prosecution proving that the accused was aware that his conduct might bring about the external element of a crime.”
As mentioned, the greater part of our analyses will focus on gross negligence manslaughter as it appears most applicable to our case. In Ireland, the leading test for gross negligence manslaughter was defined by the Court of Appeal, in the case of People (Attorney General) v. Dunleavy, as follows:
- The accused’s negligence must have caused the death in question;
- The negligence of the accused must be of a very high level, beyond “ordinary carelessness”; and
- The negligence must involve a high degree of risk or likelihood of substantial personal injury to others.
Another decision which is instrumental to our analyses, is the decision of the Court of Appeal in People (Director of Public Prosecutions) v. Cullagh. In this case, a girl had fallen from a ride at a funfair, after her seat had detached from the metal arm which had fixed it to the equipment. The legal question which arose in the case was whether the negligence of the accused was of a sufficiently high standard to satisfy the test?
Murphy J, took the following factors into consideration:
- The equipment itself was twenty years old and was used in England and Ireland at funfairs for a number of years;
- Three years prior to its purchase by the accused the equipment had lain in an open field in County Cork;
- The equipment was described to be in “appalling condition” by the learned trial Judge;
- The equipment was improved and refurbished by the accuse, however, various parts remained manifestly unsatisfactory; and
- The failure of the equipment was undoubtedly caused by the rust on the inside which was not visible on any sort of normal inspection.
The Court of Appeal agreed that the trial court was correct in finding the appellant guilty of manslaughter. The ratio decidendi in upholding the conviction was based on the conclusion that the equipment was “undoubtedly old and hazardous”, and in a “deplorable condition”, notwithstanding, the best efforts of Mr. Cullagh to refurbish the equipment. Murphy J further noted that the appellant had owed a very significant duty of care to the injured party, both in civil and criminal law, which the appellant failed to discharge. It was further observed that, there was no suggestion made by the Court that the appellant was aware of the rust on the particular bolt, which had led to the failure of the equipment. This obiter dictum is of particular interest to our discussion as it highlights that the inadvertence of matters which directly cause or were instrumental in causing the death of another will not absolve the accused of criminal liability.
To balance this a key point to consider in the decision of Murphy J is that “mere inadvertence which would attract liability in a civil action” will not be sufficient for a finding of gross negligence manslaughter. In the case, the accused owed a very significant duty to both, the accused and other members of the public, and had knowingly provided equipment which had lain in an open field for several years, at which point it was already twenty years old. As previously mentioned, the Court did note that the accused went through the trouble of refurbishing the equipment, however, despite these efforts, the equipment was nonetheless still found to have been in an abysmal condition.
Furthermore, it is worth noting that position in England is identical to that in Irish law. The leading case in England establishing the standard for to be followed in cases of gross negligence manslaughter was set out in the decision of the House of Lords in R v. Adomako.
- Failure to establish the Crime
[2.1] Why has the CPS chosen not to prosecute
So why is it that the CPS decided not to pursue a conviction in Mr. Petgrave’s case? Simply put it is unlikely that the prosecution would have had sufficient evidence in the case to establish such a high standard. In our case, we are dealing with an incident which can be labelled as a “freak-accident”. Neither player could have anticipated the events which unfolded. Despite this, it is important to note that, as previously mentioned, whether an accused could have foreseen the incident is neither here nor there. The questions, which the prosecution are instead confronted by are whether an accused has been so grossly negligent in their conduct to have attracted criminal liability, and whether their negligence involved a high degree of risk of substantial personal injury to others.
Conclusion
In summation, the reasons underpinning the decision of the CPS not to prosecute Mr. Petgrave are clearly laid out in the scholarly discourse of legal academics and in the decisions of Courts, in both, Ireland and England. The objective standard which has been widely recognised by the Courts are to protect individuals who’s conduct in cases can be characterised as “mere inadvertence” or “ordinary carelessness” from such a serious conviction as that of gross negligence manslaughter. Furthermore, a significant factor to be considered, in any particular case, is the level negligence on part of the accused in light of the duty which they owe to others who may be affected by their conduct.
As is common knowledge, the game of ice hockey involves a degree of physicality and therefore players are permitted to deliver hits and blows to each other within the parameters of the rules and regulations of the sport. In the case of Mr. Petgrave, it would be exceptionally difficult to satisfy the high standard set out by the Courts, given the nature of the sport where players falling, tripping, and getting knocked down occur more often than not and can be accepted as part-and-parcel of the game.
Not only did, Mr. Petgrave, not break the rules of the sport as prescribed by the International Ice Hockey Federation, but it is difficult to conceive that he was grossly negligent to such a high degree as to attract criminal liability in the circumstances.
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