R v Kuddus [2019] EWCA Crim 837

Megan Lee, aged 15, died after eating a takeaway from Royal Spice containing peanuts, despite her friend noting 'nuts, prawns' when ordering. The owner, unaware of the allergy declaration, was convicted of gross negligence manslaughter but the Court of Appeal quashed the conviction.

Facts

Mohammed Abdul Kuddus was the sole director of RS Takeaway Ltd, which operated the Royal Spice takeaway in Oswaldtwistle, where he also worked as a tandoori chef. Harun Rashid, the previous owner, continued to work at the restaurant. On 30 December 2016, 15-year-old Megan Lee ordered a meal via the Just Eat platform. Her friend entered ‘Nuts, prawns’ in the comments box because Megan had what was believed to be a mild nut allergy. Megan had never been prescribed an EpiPen or referred to a specialist. Mr Rashid saw the comment but did not take it seriously as it did not specifically mention allergies. The food supplied contained peanut protein. Megan suffered an allergic reaction and died two days later from a fatal asthma attack precipitated by an allergic reaction to nuts.

There was no evidence that the appellant, who prepared part of the order, was aware of the comment or Megan’s allergy. Investigations revealed a lack of allergen control systems at Royal Spice. The appellant pleaded guilty to offences under the Health and Safety at Work etc Act 1974 and the Food Safety and Hygiene (England) Regulations 2013, and was convicted by a jury of gross negligence manslaughter. He was sentenced to two years’ imprisonment for manslaughter.

Issues

Two grounds of appeal were advanced:

1. Whether the trial judge (Yip J) was wrong to refuse to direct the jury that, in addition to considering the reasonable foreseeability of a serious and obvious risk of death, they must be sure that such a risk in fact existed in relation to Megan specifically, given evidence that her allergy was considered mild.
2. Whether the judge wrongly equated the knowledge of the business (or Mr Rashid) with that of the appellant, when there was no evidence the appellant knew of Megan’s declared allergy.

Arguments

Appellant

Simon Myerson QC argued that the existence of a serious and obvious risk of death was a matter of fact to be proved, distinct from foreseeability. He relied on evidence that Megan’s allergy was regarded as mild, she had not been prescribed an EpiPen, and expert evidence that her severe reaction was rare and unpredictable. On the second ground, he contended that the directions improperly attributed to the appellant knowledge of the allergy declaration that was in fact received only by Mr Rashid.

Crown

Peter Wright QC submitted that the judge correctly identified the objective test and that the existence of risk was addressed via the Route to Verdict. The Crown’s case against the appellant was based on his failure, as owner, to introduce systems of allergen control, not on his personal reaction to the declaration. The duty of care did not depend on personal knowledge, and the declaration to the business was sufficient.

Judgment

Ground 1: Rejected

The Court of Appeal endorsed Yip J’s approach. Sir Brian Leveson P held that focusing on the specific medical circumstances of the individual victim misunderstood what must be established in gross negligence manslaughter. Where the existence of a serious and obvious risk of death is in issue, the question is whether the defendant’s breach gave rise to such a risk to the class of persons to whom the duty was owed – here, nut allergy sufferers – not to the specific victim. The individual idiosyncrasies of potential victims, being unknown to the defendant, cannot determine whether there is in fact a serious and obvious risk of death. The Court reviewed the principles in Adomako, Misra, Rudling, Honey Rose and Zaman, confirming that foreseeability is objective and prospective, assessed at the time of breach based on information then available.

Ground 2: Allowed

The Court held the conviction unsafe because the directions treated notification to ‘Royal Spice’ as sufficient notice to both Mr Rashid and the appellant, despite the absence of evidence that the appellant was told of the allergy declaration. The appellant’s duty as director was to ensure appropriate systems were in place – analogous to the duty in Honey Rose. However, the risk in such systemic-failure cases is that a customer might present with the underlying condition the system should address, not necessarily an obvious and serious risk of death. For gross negligence manslaughter, the reasonable person, armed with notice that a particular customer falls within the category the system was designed to protect, must have foreseen an obvious and serious risk of death at the time of breach. As the appellant had no notice of Megan’s allergy, the direction attributing knowledge to him rendered the conviction unsafe.

Implications

The judgment clarifies several important aspects of gross negligence manslaughter:

• The serious and obvious risk of death is assessed by reference to the class of persons to whom the duty is owed, not the idiosyncratic vulnerabilities of the specific victim (unless known to the defendant).
• Where liability is based on systemic failure by a business owner or director, the reasonable foreseeability of an obvious and serious risk of death must be assessed at the moment of breach and on the basis of information actually available to that defendant. Knowledge held by others in the business cannot be attributed to a defendant for the purposes of manslaughter simply because notification was received by the business.
• The Court expressly left open whether, and if so when, a defendant’s personal knowledge of a specific victim’s characteristics might affect the analysis.
• The decision reinforces that restaurateurs and business owners bear serious responsibilities regarding allergen control, and other offences (health and safety, food safety) remain available. The Court emphasised that courts will rigorously scrutinise how restaurants discharge duties owed to allergy sufferers.
• The case is important because it draws a careful line between regulatory or civil liability for systemic failures and the higher threshold required for the criminal offence of gross negligence manslaughter, requiring foreseeability of death to be tied to information available to the particular defendant at the time of the breach.

Verdict: Appeal allowed; conviction for gross negligence manslaughter quashed.

Source: R v Kuddus [2019] EWCA Crim 837