A MOTHER, whose desperately disabled son drowned when left unattended in a care home jacuzzi, has suffered bitter defeat in her High Court bid to have those she blames for the tragedy prosecuted

Brenda Rowley had challenged the Director of Public Prosecutions' refusal to bring criminal charges over the death of her son, Malcolm, in July 1998 at the care home in New Lane, Salford.

The grieving mother, of Whimbrel Road, Astley, argued the part time care assistant who left him unattended in the bath -- and Salford City Council who managed the home -- should be prosecuted for "gross negligence manslaughter".

But top judge, Lord Justice Kennedy, sitting in London, said Mrs Rowley's lawyers had failed to show that the decision not to prosecute was "plainly wrong" -- and dismissed her judicial review challenge.

The judge, sitting with Mr Justice Hooper, said: "We fear that the decision will disappoint Mrs Rowley, to whom tribute was rightly paid ... for her determination to get to the bottom of the circumstances which led to the death of her son."

Prosecute

But the decision not to prosecute the care assistant was "unassailable" and care had been taken by the Crown Prosecution Service in also refusing to bring a manslaughter charge against the council, he said.

Mrs Rowley, who was legally aided and not in court, was refused permission to appeal further to the House of Lords.

Malcolm, aged 30 when he died, had been so severely disabled he could do almost nothing for himself. When he was laid horizontally in the bath and left unattended, he had "no capacity for self-rescue", Mrs Rowley's counsel, Mr Murray Hunt, earlier told the court.

Malcolm had been hoisted into a jacuzzi -- with the jets turned on and bubble bath added. There were about five inches of water in the tub and he had been left "completely unattended for at least five minutes" and it was during that time that he probably drowned.

An inquest jury in December 1999 returned a verdict that Malcolm had died an "accidental death to which neglect contributed".

But the Crown Prosecution Service, on behalf of the DPP, in February last year ruled that neither the care assistant who had left Malcolm in the bath, nor Salford City Council, should be prosecuted.

The police view was that "no one had intended to harm Malcolm, and indeed the carers had been very upset by his death", and the Health and Safety Executive also decided there had been no gross negligence or recklessness.

The judge said the CPS had applied the correct legal test in finding that, although there was evidence that negligence had played a part in the death, there had been no gross negligence or recklessness.