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A Recipe for Disaster? Gross Negligence Manslaughter in R v Zaman

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About The Author

Jett Parker-Holland (Guest Contributor)

Jett is a GDL student at BPP University in Birmingham. His main interests in law extend to commercial and corporate law. Before studying law, Jett worked in venture capital and holds a Master's degree in investments from Aston University. In his spare time, Jett is interested in art and literature, and runs his own online magazine, Mavrck.co.uk.

Never ascribe to malice that which is adequately explained by incompetence.

Napoleon Bonaparte

In the United Kingdom, approximately one in seventy people suffer from a peanut allergy. The allergy is recognised as one of the most serious food allergies due to the potential severity of its threat to the sufferer’s life.

Indeed, the risk of those with allergies suffering harm is one of the main reasons that legislation has been put in place to protect consumers. This includes, for instance, the European Food Information to Consumers Regulation and the Food Information Regulations 2014. As well as increasing awareness of the need for transparency to consumers, these laws have also shifted a great deal of responsibility onto the shoulders of food producers to handle food safely. In essence, this represents legislative confirmation that they owe a strict duty of care to their customers.

And, as this article examines, the extent to which this strict duty of care opens negligent food producers up to severe consequences was highlighted by the Court of Appeal’s decision in the case of R v Zaman [2017]. Here, a breach of this duty of care not only saw a defendant face over six years in prison but also raised interesting yet complex questions surrounding the application of the offence of gross negligence manslaughter, and the test which governs it.

The Facts

On 30 January 2014, Paul Wilson (W) ordered an Indian takeaway from the restaurant owned by Mohammed Khalique Zaman, the defendant. W suffered from a severe peanut allergy, and so when ordering, he had explicitly asked his waiter whether the dish contained any nuts. The waiter confirmed that the dish did not contain nuts. Later that day, W died from an anaphylactic shock that was brought on by the large amounts of peanut found in his takeaway meal.

The defendant faced six counts of contravening several food safety requirements and one count of manslaughter for the death of W. In the trial before Judge Bourne-Arton QC at Teesside Crown Court, the prosecution adduced a number of facts that were intended to show the defendant’s alleged disregard for the safety of his customers:

  • At the time of the incident, the defendant’s business had been deteriorating. In December 2013, his business account had been overdrawn by £300,000. Therefore, he had substituted the use of almond powder with a less expensive mixed-nut powder that contains mostly peanut powder, with only small amounts of almond.
  • Ruby Scott, a customer with a peanut allergy, had suffered an allergic reaction in January 2014, a month before the death of W. As a result, an inspector from the North Yorkshire Trading Standards Department had visited the restaurant and discovered that 10 percent of a meal in which it was claimed there was no peanut actually contained the ingredient.
  • On 1 February 2014, one day after the death of W, North Yorkshire Trading Standards visited the restaurant again to carry out a similar test on the defendant’s meals. It was found that the dish contained enough peanut to trigger an allergic reaction.

As Hickinbottom LJ subsequently explained in R v Zaman [2017], the prosecution were therefore arguing that the defendant’s concerns about costs led to him negligently deciding ‘to run the risk of customers with an allergy to peanut becoming ill’. Furthermore, the prosecution contended that the defendant had negligently failed to take sufficient steps to ensure no peanuts were contained in his dishes, with this argument enhanced by the fact that the intervention of the North Yorkshire Trading Standards Department had ensured he was aware of the issue.

The Test for Gross Negligence Manslaughter

The prosecution’s case was successful: on 23 May 2016, Judge Bourne-Arton QC sentenced the defendant to six years' imprisonment for gross negligence manslaughter, and for up to nine months’ imprisonment for each of a number of food safety offences. In reaching the conclusion that the defendant was guilty of gross negligence manslaughter, the trial judge followed and applied the four-stage test that was developed in R v Adomako [1994] 3 WLR 288:

  1. Did the defendant owe the victim a duty of care?
  2. Did the defendant breach the duty of care?
  3. Did the breach of duty cause, or make a serious contribution to, the victim’s death?
  4. Having regard to the risk of death involved, was the conduct of the defendant so bad in all the circumstances as to amount to a criminal act or omission?

In order to secure a criminal conviction for gross negligence manslaughter, the prosecution must be able to prove that there is an affirmative answer to all four questions. This was the case in R v Adomako [1994] 3 WLR 288 itself, where an anaesthetist in attendance during the victim’s operation failed to notice that an the oxygen tube helping the victim to breathe became disconnected. As a result, the victim suffered from a cardiac arrest and died. The anaesthetist's incompetence was felt to have been so bad that it deserved to have criminal ramifications.

It was an appeal against the decision that all four limbs had been satisfied – as well as the trial judge’s directions to the jury – which was the basis of the judgment of the Court of Appeal in R v Zaman [2017]. More specifically, the defendant challenged the conviction on two grounds: firstly, he argued that there had been no breach of the duty of care, and secondly, that there had not been a sufficient causal link between his actions and the death of W.

The Appeal: Disputes on the Law

While the defendant accepted that he owed a duty of care to ensure the safety of his customers, including W, he contested that there was no breach of duty because he had clearly informed his chefs and managers to no longer use the mixed-nut powder and demanded that his supplier supply him only with almond powder. However, all of these instructions were given verbally and there were no written evidence to support these contentions. It was thus reasoned that verbally informing his chefs did not constitute as a sufficient step to satisfy his duty of care.

The defendant continued his argument as to where the breach of duty lay in terms of legal causation – the doctrine that underpins Question 3 of the test from R v Adomako [1994] 3 WLR 288. Though the defendant accepted that those with peanut allergies could die from ingesting peanut and that it was the meal prepared by his restaurant that was responsible for W’s death, he maintained that there was insufficient legal causation because the breach of duty was made by the chef preparing the meal. In this way, it was argued, the death of W was the result of an unrelated act of negligence made by his staff.

However, neither of these arguments were accepted. The jury’s conclusion that the defendant had been grossly negligent – and therefore had commit the offence – was upheld, with Hickinbottom LJ explaining that the Court of Appeal felt that:

[T]he case against the Appellant was powerful. We consider it to have been overwhelming. Despite [counsel of the appellant's] particularly able efforts, we are in no doubt that the conviction was and is safe.

Indeed, the Court of Appeal in R v Zaman [2017] rejected the bid that the sentence should be reduced on the grounds of being excessive and found good the sentence of six years’ imprisonment for gross negligence manslaughter, as well as six concurrent sentences of up to nine months for different food safety offences. It was concluded that the defendant was ‘completely and utterly indifferent at all stages to the health and lives of [his] customers’, and that his decision for the use of peanut as an ingredient was completely based on cost.

The Limits of the Adomako Test

The decision in R v Zaman [2017] seems to be the correct one. Indeed, when examined narrowly from a legal perspective, its academic interest seems confined to the novelty of its facts. However, this overlooks the extent to which it shows – and will undoubtedly be used in the future – to demonstrate the necessity of the offence of gross negligence manslaughter, an offence which has been subject to sustained criticism over the years.

Indeed, while the offence of gross negligence manslaughter is very useful for prosecuting those whose incompetence reaches the point of criminality, it – and the test from R v Adomako [1994] 3 WLR 288 that underpins it – does  have well-cited limitations.

For one thing, the final limb of the test is fundamentally flawed and circular. It is left to the jury to decide whether the breach in duty is so severe as to amount to “gross” negligence (criminal negligence), therefore it is left to the jury to convict the defendant of a crime dependant on whether they find his behaviour to be “criminal”. This circular logic is an unconcealed error in an important criminal assessment and is compounded by the fact that the jury are not directed as what constitutes “gross” negligence and are not informed of the distinction between civil and criminal liability. In addition to this, despite being given the freedom to decide what constitutes a criminal act, the jury are not required to give reasons for the decisions they make.

Another criticism of the test from R v Adomako [1994] 3 WLR 288 is its potential incompatibility with Article 7 of the European Convention of Human Rights (ECHR), which requires the criminal law to be sufficiently clear and precise. The basis of this right is that the public must be able to have access to the law, and to be able to interpret it so as to regulate their conduct respectively. In the case of R v Misra & Srivastava [2005], the defendants argued that the test used in R v Adomako [1994] 3 WLR 288 was not sufficiently clear and precise, as there is no definition for what is “grossly negligent”: they therefore alleged  interference with their rights under Article 7 of the ECHR. However, the Court of Appeal – somewhat unconvincingly –dismissed this line of attack, on the grounds that:

The jury is not deciding… on some unprincipled basis. This is not a question of law, but one of fact.

Furthermore, the test relies heavily on principles laid down in civil law, specifically those used in the area of negligence in the law of tort. The application of criminal law involves significantly different legal procedures including a higher standard of proof and much harsher punishments: Where tort requires the payment of damages, criminal law can punish with the deprivation of personal freedoms and the attachment of the stigma of being a criminal. Given the disparity between criminal law and civil law, there are strong arguments that the conventions that they rely on are incompatible and as such the test used in R v Adomako [1994] 3 WLR 288 does not satisfy the requirements of a criminal law test. Alternatively, it could be interpreted that the use of civil law in a criminal setting is a sign of robust legal principles that are applicable to multiple areas of English law.

In light of these criticisms, recommendations were made to reform the crime of gross negligence manslaughter in a major review by the Law Commission,. Its proposal included, among other things, a new offence – referred to as Killing by Gross Carelessness – that would replace gross negligence manslaughter, and would be be determined using the following test:

  1. The defendant’s conduct involved an obvious risk of causing death or serious injury and was capable of appreciating it.
  2. Their conduct fell far below what could be expected of them in all the circumstances, or that he had intention or recklessness to cause some unlawful injury to another.
  3. They caused death.

Whilst this displays an intention to divorce civil law principals from the criminal law, this new test arguably far more vague and expansive test than that used in R v Adomako [1994] 3 WLR 288. Whilst the current test is flawed, it is specific to those who are trusted to look after the personal safety of others.  In contrast, for the offence of Killing by Gross Carelessness is almost broad enough to apply to any situation where someone had been negligent. Furthermore, it does not appear to remove the subjective reliance of the jury to decide if something was “far” below what could be expected of him, as opposed to “grossly” negligent.


R v Zaman [2017] represented an excellent opportunity to see the test for gross negligence manslaughter in action. Rarely used, it is hard to argue against the fact that this offence – and the test which governs it – is deeply flawed in theory, but effective and necessary in practice. Indeed, while it is important to discuss and highlight the offence’s potential pitfalls, it can be argued that it is correct that juries are such discretion, because – in reality – it is they, as de facto representatives of society – who are best placed to recognise and define the negligence that society would deem criminal.

That is not to say that there is not scope for significant improvement: it is concerning that on the that the test from R v Adomako [1994] 3 WLR 288 relies on re-purposed tort principles. At present, this has appeared to avoid injustice and wrongful convictions to an adequate degree. But, whether this is sufficient is questionable: after all, adequacy is not the standard to which the legal system should be held, especially given the seriousness of the potential sentence that can result from a conviction under gross negligent manslaughter.

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Tagged: Consumer Rights, Criminal Law

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