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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kuddus v R. [2019] EWCA Crim 837 (16 May 2019) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2019/837.html Cite as: [2019] EWCA Crim 837, [2019] WLR(D) 286 |
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ON APPEAL FROM THE CROWN COURT AT MANCHESTER
Yip J
T20187098
Strand, London, WC2A 2LL |
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B e f o r e :
(SIR BRIAN LEVESON)
MR JUSTICE STUART-SMITH
and
MR JUSTICE JEREMY BAKER
____________________
MOHAMMED ABDUL ![]() | Appellant |
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- and - |
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THE QUEEN |
Respondent |
____________________
Kuddus
Peter Wright QC for the Crown
Hearing date : 12 March 2019
____________________
Crown Copyright ©
Sir Brian Leveson P :
The Facts
The Trial
i) The comments section put the appellant on notice that the customer was allergic as the significance of the entry was obvious. No attempt was made to contact the customer.
ii) Inspections undertaken at Royal Spice after Megan's death demonstrated a lack of controls and awareness concerning allergen control.
iii) The food delivered was not properly labelled in respect of allergens and had only indecipherable writing and therefore did not comply with the relevant legal requirements.
iv) Analysis of foodstuffs taken from Royal Spice revealed levels of cross-contamination indicative of a course of conduct resulting in the unsafe food being supplied.
v) The risk of death was asserted to be obvious and it was said to be impossible for the appellant and Mr Rashid to be unaware of it.
The Ruling
"4. The issue that arises is in relation to the third element. As identified in Zaman, this covers the issue of foreseeability. A defendant can be convicted of gross negligence manslaughter only if a reasonable person in his position would, at the time of his breach of duty, have foreseen an obvious and serious risk of death."
"7. A review of all the relevant authorities confirms that what must be considered is the reasonable foreseeability of the relevant risk and that this is an objective test. It depends on what a reasonable person would have foreseen at the time on the basis of the information then available to them."
"8. Mr Myerson QC, on behalf of the defendant MrKuddus,
suggests that in this case, in addition to being directed on the issue of foreseeability and the risk that must be foreseen, the jury must also be invited to consider whether a serious and obvious risk of death in fact existed.
9. He seeks to rely upon evidence that Megan's allergy to nuts had not previously been recognised as being severe. He highlights that Megan had not been prescribed an EpiPen or referred to a specialist, whereas that would have happened had her GP thought there was a serious and obvious risk of death. He also refers to the evidence of the emergency doctor, Dr Rakshi, that this was a very rare, tragic set of circumstances and nothing in the previous history suggested that Megan would have such a severe reaction. He wishes to rely on this medical evidence to suggest to the jury that there was in fact no obvious and serious risk of death in Megan's case."
"10. In my judgment, that is to approach the issue of the seriousness and obviousness of the risk of death from the wrong angle. The issue is not as to the likelihood of Megan dying in light of her medical history. The defendants, of course, knew nothing at all of that history until well after the relevant events. The question is as to the foreseeability of the risk of death at the time of their breach by those in the defendants' position. That involves looking at the circumstances that existed, from their viewpoint, and considering whether a reasonably prudent restaurateur would have foreseen a serious and obvious risk of death at the time of their breach of duty."
"One (A) was known to have a severe allergy, the GP had identified a risk of death if exposed to nuts and prescribed an EpiPen. The other (B) was considered to have a mild allergy and merely told to avoid nuts and take anti-histamines if required. If the restaurant were told of the need to avoid nuts due to allergy but negligently included them in the meal and both family members died as a result, it seemed to me that the effect of Mr Myerson's submissions would be that the restaurateur could be convicted of the manslaughter in respect of A but not B. Mr Myerson confirmed that this would be the outcome on the basis he contended for. With respect, that would seem to me to be a wholly illogical distinction and to illustrate the fallacy of looking at the foreseeability of risk from the perspective of the deceased rather than that of the restaurateur."
Jury Directions and Summing Up the Law
"25. As a matter of law, the owner and the "Manager" of a takeaway restaurant owe a duty of care to customers to take reasonable steps to ensure their safety, and in particular not to provide food that is harmful to customers with a declared allergy.
26. [F]ood containing peanuts should be considered potentially harmful to those with a declared nut allergy.
27. There is no suggestion that the food supplied to Megan and Katie was in any way unsafe or harmful for customers who did not have a nut allergy. Therefore, when considering Count 3 you will be considering only the duty owed to customers with a declared allergy.
28. More general duties in relation to food safety including hygiene etc do not have a bearing on Count 3.
29. For the relevant duty to arise, you must be sure that Megan's allergy to nuts had been declared to Royal Spice. This is a matter of fact for you to decide, based upon what was communicated to the takeaway and the circumstances in which it was communicated.
30. You will be looking at this issue from the perspective of a reasonable restauranteur receiving the order, rather than the customer making the order.
31. The question for you is whether what was communicated to Royal Spice and the way in which it was communicated (within the context of the Just Eat system) meant that Megan's nut allergy had been declared to Royal Spice.
32. If you are sure of that, then MrKuddus,
as the owner, and Mr Rashid, if you have found him to be the "Manager", as a matter of law, owed her a duty to take reasonable steps to ensure that she was not provided with food that contained nuts but was not identified to her as containing nuts.
33. The standard of care required in meeting that duty is that of the reasonable restaurateur. That is an objective test. In considering what is expected of a reasonable restaurateur you will consider all the evidence you have, including that of the experts, which has been reduced into Agreed Facts."
"37. The prosecution must prove that it was reasonably foreseeable that the breach of duty gave rise to a serious and obvious risk of death.
38. The question of whether a serious and obvious risk of death was reasonably foreseeable is to be assessed with respect to knowledge at the time of the breach of duty. Therefore, you must consider what a reasonably prudent restauranteur would have known and understood in December 2016 when an order was received in the terms submitted by Megan and Katie.
39. In addressing this question, you may wish to look at all the background against which Katie entered the words "Nuts, prawns" including the information you have about her medical history. However, in deciding what was reasonably foreseeable to each defendant, you will assess what a reasonably prudent restaurateur in his position, at that time, would have known. Because that is an objective test, it does not depend on Megan's medical history or anything that only became known after the event.
40. In looking at the case against each defendant in turn, you must consider his role in events and consider the foreseeability of the risk of death in the circumstances he was in.
41. The risk that must be recognisable is nothing less than death, a risk of serious harm falling short of death is not enough.
42. The risk must be clear and unambiguous and not something which might become apparent on further investigation or enquiry.
43. So, if you find that Megan had declared her nut allergy to Royal Spice and that the defendant you are considering failed to take reasonable steps to prevent her being exposed to nuts, the question is whether at the time she was supplied with a meal containing nuts you are sure that a serious and obvious risk of death was reasonably foreseeable to a reasonable restaurateur in his position."
" you must be satisfied that a serious and obvious risk of death was reasonably foreseeable to a reasonably prudent person in the defendants' position. That requires a notional objective exercise of putting a reasonably prudent restaurateur into the shoes of the defendant you are considering and asking whether at the time of the breach of duty that you have found, that person ought to have reasonably foreseen an obvious and serious risk of death."
"(ii) Are you sure that Megan's allergy to nuts had been declared to Royal Spice?
[See Legal Directions 29 -31]
If no, not sure: find each defendant not guilty; you need go no further
If yes, sure: consider question iii.
(iii) Are you sure that the defendant you are considering failed to take the reasonable steps required of him to ensure that a customer with a declared allergy to nuts would either not be supplied with food containing nuts or would be warned of the nut content?
If no, not sure: not guilty
If yes, sure: consider question iv.
(iv) Are you sure that a reasonably prudent restaurateur would have foreseen a serious and obvious risk of death in the acts and omissions of the defendant you are considering?
[Consider this question on the basis of what a reasonably prudent restauranteur would have known and understood in December 2016 on the basis of the information available from the defendant's perspective. See the directions at section C. for further guidance in approaching this question.]
If no, not sure: not guilty
If yes, sure: consider question v.
(v) Are you sure that the defendant's failure to take reasonable steps to ensure Megan was either not supplied with food containing nuts or was warned of the nut content caused or made a significant contribution to her death?
If no, not sure: not guilty
If yes, sure: consider question vi.
(vi) Are you sure that the circumstances of the defendant's breach were truly exceptionally bad and amounted to such a departure from the proper care to be expected of a reasonable restauranteur as to be considered reprehensible and so properly categorised as gross negligence (i.e. a crime)?
[See the directions at section E. for further guidance in approaching this question.]
If no, not sure: not guilty
If yes, sure (having been sure of all other elements): guilty"
The Principles
"77. In the circumstances, the relevant principles in relation to the cases of gross negligence manslaughter can be summarised as follows:
(1) The offence of gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to criminal act or omission.
(2) There are, therefore, five elements which the prosecution must prove in order for a person to be guilty of an offence of manslaughter by gross negligence:
(a) the defendant owed an existing duty of care to the victim;
(b) the defendant negligently breached that duty of care;
(c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;
(d) the breach of that duty caused the death of the victim;
(e) the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.
(3) The question of whether there is a serious and obvious risk of death must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty.
(4) A recognisable risk of something serious is not the same as a recognisable risk of death.
(5) A mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death: an obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.
78. A further point emerges from the above analysis of the authorities which is particularly germane to the present case: none of the authorities suggests that, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court is entitled to take into account information which would, could, or should have been available to the defendant following the breach of duty in question. The test is objective and prospective."
"The prosecution has to prove the following elements.
(i) In accordance with the ordinary principles of negligence, the defendant owed the deceased a duty of care.
(ii) The defendant was in breach of that duty of care.
(iii) A reasonably prudent person would have foreseen that the defendant's actions or omissions constituting the breach of duty had exposed the deceased to an "obvious and serious" risk of death. The court in Misra and Srivastava [2004] EWCA Crim 2375; [2005] 1 Cr Ap R 21 and Yaqoob [2005] EWCA Crim 2169 confirmed that the relevant risk to be reasonably foreseen is nothing less than the risk of death.
(iv) The breach of duty either caused, or made a significant contribution (i.e. a contribution that was more than negligible) to, the deceased's death.
(v) The departure of the defendant's conduct from the proper standard of care incumbent upon him, involving as it must have done the risk of death, was such that the breach of duty can properly be characterised as gross negligence and therefore criminal."
"The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach."
Each formulation was, in fact, considering what a reasonable person would reasonably have foreseen.
Duty of Care and Breach
"It is the prosecution case that the defendants had taken no reasonable steps to ensure that customers with declared allergies were not exposed to allergens. If you sure that is right, negligent breach of duty would be established."
Foreseeability and Serious and Obvious Risk of Death
"On the basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged as criminal.
It is true that to a certain extent this involves an element of circularity, but in this breach of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."
The existence of a risk of death was thus linked to (but treated as separate from) the further requirement of gross negligence; it is obviously significant when determining the question whether the seriousness of the breach was such that it should be considered gross negligence and criminal.
Was the negligence which caused the death gross negligence? The question posed is: Having regard to the risk of death involved, was the conduct of the defendants so bad in all the circumstances as to amount, in your judgment, to a criminal act or omission? The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury or even serious injury but of death. If you find such circumstances in the case of the defendant whom you are considering you must decide whether what he did or failed to do was so bad that it was criminal. That, of course, means that the degree of negligence of which he was guilty was very high."
" [W]as the negligence which caused the death gross negligence? The question posed is, having regard to the risk of death involved was the conduct of the defendants so bad in all the circumstances as to amount in your judgment to a criminal act or omission. The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death. "
"Mistakes, even very serious mistakes, an errors of judgment, even very serious errors of judgment, and the like, are nowhere near enough for a crime as serious as manslaughter to be committed. If you do conclude that you are sure that either or both of the defendants have been in breach of their duty of care in their treatment of Sean, you must therefore go on to consider the nature of that carelessness or negligence, as you find it to be.
Over the years, the courts have used a number of expressions to describe this vital element of the crime, but the key is that it must be gross in the perhaps slightly old-fashioned sense now of the use of that word. So in this case, when you are considering the conduct of each doctor, I think you will find it most helpful to concentrate on whether or not the prosecution has made you sure that the conduct of whichever one you are considering in all the circumstances you have heard about and as you find them to be, fell so far below the standard to be expected of a reasonably competent and careful senior house officer that it was something, in your assessment, truly exceptionally bad, and which showed such an indifference to an obviously serious risk to the life of Sean Phillips and such a departure from the standard to be expected as to amount, in your judgment, to a criminal act or omission, and so to be the very serious crime of manslaughter."
"23. There was little dispute that, with the benefit of hindsight, had a doctor seen Ryan by the early evening of Friday 7 December 2012, he or she would have seen and assessed a very sick boy. The judge went on, however, that it is not the assessment which would have been made at the visit which goes to the risk envisaged in the legal test; rather, it is the risk at the time of the telephone call. The judge then applied that test to the facts as they were or ought to have been known to Dr Rudling at the time of the phone call, together with the evidence of Dr Peter as to when the assessment that Ryan's illness was obviously life-threatening is likely to have been made, coupled with Professor Hughes' evidence that hyper-pigmentation was not, in itself, indicative of the adrenal crisis phase of Addison's disease. She then concluded, in respect of this aspect of the element of the test of gross negligence manslaughter, that the prosecution had not provided specific evidence that, at the time of the telephone call, a reasonably prudent person would conclude that an obvious and serious risk of death to Ryan Morse was present.
38. The nub of Mr Price's argument was that if it is necessary to have a face to face assessment in order to risk manage a patient and assess what might potentially be a life-threatening condition, it is necessarily implicit that there is an obvious and serious risk of death at that time. As he put it, the thrust of Dr Peter's evidence was that a reasonably competent GP would have said to himself/herself "I cannot eliminate the possibility that this child may be suffering from a rare risk to life without the child being seen urgently" and that that equates to an obvious and serious risk of death.
39. In our judgment, that proposition simply does not follow, as is apparent when one focuses on each of the three aspects of this ingredient of the offence of gross negligence manslaughter. At the time of the breach of duty, there must be a risk of death, not merely serious illness; the risk must be serious; and the risk must be obvious. A GP faced with an unusual presentation which is worrying and undiagnosed may need to ensure a face to face assessment urgently in order to investigate further. That may be in order to assess whether it is something serious, to use Dr Peter's expression., which may or may not be so serious as to be life-threatening. A recognisable risk of something serious is not the same as a recognisable risk of death.
40. What does not follow is that if a reasonably competent GP requires an urgent assessment of a worrying and undiagnosed condition, it is necessarily reasonably foreseeable that there is a risk of death. Still less does it demonstrate a serious risk of death, which is not to be equated with an 'inability to eliminate a possibility'. There may be numerous remote possibilities of very rare conditions which cannot be eliminated but which do not present a serious risk of death. Further, and perhaps more importantly, a mere possibility that an assessment might reveal something life-threatening which is not the same as an obvious risk of death. An obvious risk of death is a present risk which is clear and unambiguous, not one which might become apparent on further investigation."
Gross Negligence
The Appeal
"You heard that Megan was generally well, but had quite bad asthma. As she got older she managed this herself well with inhalers. She did have exacerbations, usually a couple of times a year.
In 2010 her parents had suspected that she was allergic to a number of things, including nuts, but possibly also animals, strawberries and tomatoes and so she underwent blood tests and the results showed a reaction to a nut panel which included peanuts, hazelnuts, Brazil nuts, almond and coconut. She also had reactions to cats, house dander, dust mites and grouse pollen, but not to dogs, strawberries and tomatoes.
You may remember that Dr. Eccles explained that these results do not actually diagnose allergies, although the higher the so-called IgE result the more likely that the patient will have an allergic reaction to the substance that she has been tested for. However, medics do not fully understand how levels of IgE relate to the severity of reactions and it is hard to predict whether someone is likely to have a mild reaction, like a rash, or a more severe one, so, essentially, a positive test result is a warning, but it is hard to predict how an individual will in fact react.
After a discussion with Megan's parents, Dr. Houlstead prescribed the use of over-the-counter medications. Benadryl to be used more regularly and Piriton if that did not work. Megan was never prescribed an EpiPen or anything similar, nor was she referred to a specialist.
Dr. Eccles thought that Dr. Houlstead's advice had been reasonable. There was no history of Megan ever having a severe reaction before and there was nothing in the history that suggested she should have an EpiPen. She should have been advised to stay away from the substances she had shown a reaction to; to use antihistamine medication, if she was exposed, and to seek urgent medical treatment if a reaction ever became severe.
Dr. Eccles said that there had been new guidelines on managing allergies in the under nineteens in 2011, but that was after Megan was seen and it does not appear from her records that her allergy management was reviewed later.
We heard that Megan had had a reaction to a prawn cracker about five-years before her death and as her mum was allergic to prawns, they thought Megan might be as well, so they avoided giving her prawns.
Megan's parents always understood that her allergies were mild and had never been aware that they might lead to her death. You might think that that fits also with Katie Bracegirdle's evidence that Megan never made her allergies into a big issue. She did not check on the back of packing, for example. Katie said that she did steer clear of nuts, although she would eat things like chocolate and she would not say: "I have to check there are no nuts in it."
When they were ordering from Royal Spice and Katie asked Megan about her allergies, Katie told you that Megan said: "Oh, it doesn't matter, it's not a big deal, I don't have an issue." When Katie insisted they put what she was allergic to down, Megan told her nuts and prawns", but she said: "There won't be anything in it, it'll be fine, it's not too bad" type of thing.
Megan's parents told her schools about her allergies, but there was never any suggestion from doctors or teachers that she should have an EpiPen. They never sought a second opinion as they did not think there were any issues."
"They confirm that Megan was not prescribed with an EpiPen or other adrenalin auto-injector. Such devices are prescribed to patients who have had or who are thought to be at risk of a severe allergic reaction, but there is great variability in the prescription of such devices.
The Agreed Facts record that the mainstay of allergy management is the avoidance of triggering allergens. It is possible, it is said, that specialist allergy clinic review with detailed avoidance strategies, structured advice on acute allergy management and carriage and proper use of an adrenalin auto-injector could, potentially, have led to a different outcome. However, death from anaphylactic [shock] can occur, despite all that, so it is difficult to ascertain whether such measures would in fact have led to a different outcome.
In terms of where that evidence takes you, you may wish to take account of the evidence about Megan's allergies and the fact that she was apparently not someone who was thought to be at risk of a severe allergic reaction, as part of the background when you are considering the information given to Royal Spice."
"He agreed he knew about allergies, knew they could be dangerous and that people with nut allergies can die if exposed to nuts. He accepted that he never pointed that out to Mr.Kuddus or to anyone else."
"It is expected that food businesses know their obligations to provide safe food and to control any microbiological, chemical and physical risks present within their kitchens when preparing food. This knowledge could be obtained from food hygiene training and the FSA's Safer Food Better Business Catering pack."
However, although they referred to the existence of hazards and that "they were not fully identified in the minds and practices of staff at Royal Spice" the Food Safety and Hygiene experts gave no evidence about the existence of a risk of death or its seriousness in the events which happened.
"5. Adrenaline auto-injectors are prescribed to patients with allergies if they have had or are thought to be at risk of severe allergic reactions. Common devices in the UK include Epi-pens. Megan had not been prescribed such a device or referred for specialist advise about such a device.
6. Dr Doyle noted that there is great variability in the prescription of such devices by both GPs and Consultant Allergists.
7. There is research evidence that such devices are not used correctly in up to 50% of emergencies, and that death can occur despite the use of an EpiPen or an alternative adrenaline autho-injector.
10. Professor Powell in his initial report had made clear that the severity of a previous reaction is not helpful in predicting future reaction severity.
12. The three specialist experts agreed that teenagers and young adults predominate in studies of fatal allergic reactions, and the majority of severe non-fatal allergic reactions, and the majority of severe non-fatal accidental reactions occur in this age group. Those individuals most at risk of a severe reaction from allergy to peanuts or tree nuts, are those with asthma, especially if poorly controlled, and young adults transitioning to independent living. Megan fitted such a profile. Recognition of this profile, particularly in those with background asthma, requires consideration for prescription of a self-injectable adrenaline device (such as an EpiPen) with appropriate training so that appropriate emergency treatment is available should allergic reactions occur."
i) In a section entitled "Safe method: food allergies":
"It is important to know what to do if you serve a customer who has a food allergy, because these allergies can be life-threatening";
"If someone has a severe allergy they can react to even a tiny amount of the food they are sensitive to";
ii) In a section entitled "Safe method: Training and supervision":
"What to do if things go wrong . Ring 999 and ask for an ambulance with a paramedic straight away."
Conclusion