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Gross negligence manslaughter and food allergies
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Gross negligence manslaughter and food allergies

By Liam Walker

 

R v Kuddus (Mohammed Abdul)

 

[2019] EWCA Crim 837

 

 

The appellant’s conviction for gross negligence manslaughter was quashed as unsafe.  In directing the jury, the judge had combined the duty owed by the owner of a business to ensure that appropriate safety systems were in place and the duties of those responsible for ensuring that appropriate steps had been taken.

 

The appellant was the owner of a takeaway called ‘Royal Spice’ where he also worked as a tandoori chef. The appellant, prior to trial, pleaded guilty to failure to discharge a general duty of employers, contrary to ss. 3(1), 33(1)(a) and 37 of the Health and Safety at Work etc. Act 1974 (count 1) and contravention of EU Food Safety Regulations contrary to Reg. 19(1) of and Sch. 2 to the Food Safety and Hygiene (England) Regulations 2013 (count 2).

 

The deceased had been diagnosed with allergies to nuts and other allergens at an early age. Those allergies were understood to be mild. On 30 December 2016, the deceased and her friend ordered a meal from Royal Spice through a third-party website called “Just Eat”. Their order included a Peshwari naan, onion bhaji and Seekh kebab, items which did not obviously contain peanuts. During the ordering process the website prompted them with the comment “Leave a note for the restaurant”. When this link was clicked, a box opened which allowed the customer to enter text. The box showed sample text, which said “Got an allergy, an address that’s hard to find, or a very friendly dog? ” In response to this prompt the deceased’s friend entered the words “Nuts, prawns” in the comments section of the webpage.

 

There was no evidence that the order printout received at the takeaway or the comments on the deceased’s order were seen by or passed on to the appellant, who was working as one of the chefs at the time. Sadly, the deceased suffered a severe allergic reaction and died in hospital two days after eating the food.

 

At trial the judge directed the jury on reasonable foreseeability of the relevant risk, but rejected a defence submission that the jury should first be asked to consider whether there had been a serious and obvious risk of death to M.

 

The appellant submitted that directions given to the jury were insufficient by:

 

  1. Not directing the jury that it needed to consider whether there was a serious and obvious risk that the breach of duty would cause M's death; and
  2. Directing the jury in terms which equated the knowledge of the business, or R, with that of the appellant, on the basis that he was responsible for the systems in place.

 

The Court rejected the first submission that, due to the mild nature of the deceased’s allergies, there was a requirement to prove a serious and obvious risk of death for the specific victim.

 

The Court allowed the appellant’s second submission (paras 78-84). The case against the appellant, who spoke little English and had only taken over the restaurant the previous year, was based solely on his failure to introduce appropriate systems. Given that there was no evidence that the appellant had received notification of the dangers posed to the deceased, by the food ordered, the jury direction on attribution of knowledge rendered his conviction unsafe. The Court noted that the case was fact-specific.

 

The Court applied the following cases in their judgement; R. v Rose (Honey Maria) [2017] EWCA Crim 1168, [2018] Q.B. 328, [2017] 7 WLUK 789 R. v Zaman (Mohammed Khalique) [2017] EWCA Crim 1783, [2018] 1 Cr. App. R. (S.) 26, [2017] 11 WLUK 155R. v Adomako (John Asare) [1995] 1 A.C. 171, [1994] 6 WLUK 393 and R. v Singh (Gurphal) Times, April 17, 1999, [1999] 2 WLUK 360.

 

Liam Walker is a specialist criminal practitioner. He is the author of Westlaw Insight’s guide to manslaughter. Liam specialises in defending corporations and individuals who are subject to prosecution following allegations of Health and Safety breaches.

 

 

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