Gross negligence manslaughter - 'serious and obvious risk of death' requirement

image by: Guilhem Vellut, licence CC BY 2.0

Three recent judgments from the Court of Appeal emphasise the importance of there having been a 'serious and obvious risk of death' before a defendant's gross negligence can lead to a conviction for manslaughter. 

R v Kuddus [2019] EWCA Crim 837, in which the judgment of the Court of Appeal Criminal Division was published earlier this month, is a tragic case, and also the latest in a line of authorities from the Court in which it appears to seek to emphasise the importance of there having been a ‘serious and obvious risk of death’ present at the time of a defendant's actions, when considering whether the criminal offence of manslaughter by gross negligence has been committed.

The deceased in Kuddus was a 15 year old schoolgirl, Megan Lee, who lived in Oswaldtwistle near Blackburn. She suffered from - what she believed to be a mild - allergy to nuts.

In December 2016, Megan and a friend ordered a curry via Just Eat from a nearby curry house. The defendant, Mr Kuddus, was the proprietor and chef. Megan’s friend included an informal comment with their order that suggested an issue with nuts and prawns.

The 'nuts and prawns' comment was not passed onto the defendant. A meal was prepared and provided. Megan fell ill while eating it and subsequently died from a cardiac arrest. All the dishes provided by Mr Kuddus’ restaurant to the girls were later found to contain traces of peanut protein.

Mr Kuddus, and the member of staff who failed to pass on the reference to ‘nuts and prawns’ to him, were convicted of manslaughter by gross negligence.

Mr Kuddus’ appeal against conviction was allowed by the Court of Appeal. Sir Brian Leveson, President of the Queens Bench, gave the judgment of the Court. He found that Mr Kuddus had failed in his duty to put in place appropriate systems to prevent customers with declared allergies being served food to which they were allergic. However, there was no evidence that at the time of failing to put in place such systems, i.e. over the weeks and months that Mr Kuddus had been in charge of the restaurant, that a reasonable person would have foreseen a serious and obvious risk of death as a result.

Put another way, by failing to take sufficient care with allergens, it would have been reasonably foreseeable to someone in Mr Kuddus’ position that there was a risk to customers of suffering allergic reactions. There was a possibility that any such reactions might be serious. There was a possibility they might even be fatal. But that was not the same as a serious and obvious risk of death at the time Mr Kuddus failed to put in place such systems in his restaurant, and therefore the offence of gross negligence manslaughter could not be made out.

Sir Brian also found that the trial judge’s direction to the jury was insufficiently clear, in so much as it dealt with whether Mr Kuddus had been alerted to the comments about Megan’s nut allergy submitted by her friend. The trial judge directed the jury to consider whether the allergy had been declared to the curry restaurant (which in point of fact was owned by a limited company) whereas the judge should have directed the jury to consider whether the allergy had been declared to each defendant specifically.

Commentary:

The case of Kuddus follows two earlier Court of Appeal authorities, Sir Brian Leveson giving judgment in both, where the Court stressed the importance of the element of a ‘serious and obvious risk of death’ being present when considering whether a defendant’s actions amounted to gross negligence manslaughter.

In R v Rudling 2016 EWCA Crim 741, the Court of Appeal refused the prosecution’s application for leave to appeal against a ruling of a trial judge stopping a case at half-time. The trial judge had ruled that there was no case to answer where a GP who had failed to spot that a 12 year old boy was suffering from a life-threatening disease. The boy died a short time later.

Sir Brian found that, at the time the doctor concerned had received details of the boy’s symptoms via his mother over the phone, a reasonable person would have foreseen a possibility the boy was suffering from a potentially fatal disease. However, that did not equate to there being a ‘serious and obvious risk of death’. Such a level of risk would not have been apparent without physically examining the boy, which the defendant had not done.

In R v Rose 2017 EWCA Crim 1168, the defendant, a Boots optometrist, had been asked to carry out a routine eye-examination of a 7 year old boy. During that examination, she had negligently failed to examine the interior of the boy’s eye-balls. Five months later, he died from a build-up of fluid on the brain. Had the defendant conducted a full routine eye examination she would have identified the condition in time for the boy’s life to be saved.

The Court of Appeal overturned the defendant’s conviction. It ruled that the case should have been withdrawn from the jury at the close of the prosecution case. Similarly to its reasoning in the case of Rudling, and the case of Kuddus, the Court of Appeal found that, at the time of the routine eye examination, there was insufficient evidence that a reasonable optometrist would have foreseen a serious and obvious risk of death if they failed to examine the interior of their patient’s eyeball. There was a possibility of missing an issue with the eyeball, a possibility that any such issue might be serious. There was a possibility that, if unchecked, any such issue might prove fatal. But that did not equate to a serious and obvious risk of death.

Final thoughts:

Cases of manslaughter by gross negligence are often highly controversial. On the one hand is the defendant - often an otherwise law-abiding member of the public who did not dream they might be committing a criminal offence. On the other hand is the death of an innocent victim, caused at least in part by the defendant’s potentially negligent actions. In all three cases I’ve referred to the victims were children.

The recent judgments I've referred to from the Court of Appeal do not purport to make new law. Rather they are intended simply to further elucidate the elements of the offence of manslaughter by gross negligence as set out by the House of Lords in the leading case of Adomako [1995] 1 AC 171.

However, these judgments serve as a strong reminder that a prosecution for gross negligence manslaughter requires some evidence that the defendant’s actions occurred in circumstances where there was a serious and obvious risk of death. That may provide some reassurance for medical professionals, and anyone else, who work in circumstances where their mistakes may lead to a possibility of serious harm.

What must also be remembered is that, although defendants in the cases I've referred to above were ultimately found Not Guilty of gross negligence manslaughter, that does not mean they did not face serious consequences as a result of their negligent actions: Mr Kuddus, the curry house proprietor, pleaded guilty to Health and Safety and Food Hygiene offences, and received a sentence of 5 months imprisonment for those in any event. Doctor Rudling, and Ms Rose the Optometrist, almost certainly faced serious disciplinary action from their regulatory bodies, perhaps preventing them continuing to earn a living in their chosen profession.

What the Court of Appeal seems to have been trying to achieve in these judgments I've referred to is, to ensure that - where individuals have been negligent, and even where that negligence has caused or contributed to a fatality - that negligence does not result in a liability for criminal gross negligence manslaughter save where it is exceptionally bad, or 'gross'; and where it occurred in circumstances where there was an obvious and serious risk of death.