Kuddus v R.

For gross negligence manslaughter, the prosecution must prove an existing duty, negligent breach, causation, an objectively and prospectively foreseeable serious and obvious risk of death at the time of breach, and conduct sufficiently gross to be criminal.

Where the factual existence of the risk is disputed, it is assessed for the class of persons to whom the duty was owed, rather than by unknown personal features of the particular victim. A business owner's general duty to install protective systems does not, without notice of a customer's relevant condition, establish that a reasonable person in that owner's position would have foreseen an obvious and serious risk of death from the particular breach.

The appellant was the sole director of a company operating a takeaway restaurant. A customer, whose online order included the words “Nuts, prawns”, received food containing peanut protein and later died following an allergic reaction.

At the Crown Court at Manchester, the appellant was convicted of gross negligence manslaughter. He had also pleaded guilty to offences under the Health and Safety at Work etc. Act 1974 and the Food Safety and Hygiene (England) Regulations 2013.

On appeal, he challenged the directions on the factual existence of a serious and obvious risk of death and on attribution to him of notice given to the business. The central issue was whether his failure to establish allergen-control systems could sustain a manslaughter conviction when he had not been told of the customer’s declared allergy.

1. Appeal allowed. The conviction for gross negligence manslaughter was unsafe and was quashed.

2. The offence requires proof of a duty of care, negligent breach, causation, reasonable foreseeability at the time of breach of a serious and obvious risk of death, and negligence so exceptionally bad and reprehensible as to be criminal. The assessment of foreseeability is objective and prospective. A risk of serious injury, a remote possibility, or a danger that might emerge only after further inquiry is insufficient.

3. A restaurant operator owes a fact-sensitive duty. Food-safety legislation informs the reasonable steps expected, but does not itself determine the duty owed to an individual. Once a customer gives notice of a harmful allergy, the duty may require a system which prevents supply of the allergen or warns that compliant food cannot be supplied.

4. The judge correctly rejected the appellant’s proposed direction that the Crown had to prove a serious and obvious risk of death to this particular customer. If the factual existence of risk is in issue, it concerns the class to whom the duty was owed: here, nut-allergy sufferers. Unknown individual medical characteristics do not determine that issue. The court left open the effect of a defendant’s personal knowledge of a particular person’s characteristics.

5. However, notice of the allergy to the business could not simply be attributed to the appellant for manslaughter purposes. His duty as director was to ensure appropriate systems, but the foreseeable risk for this offence arose only if a reasonable person in his position, armed with notice that the customer fell within the protected category, would have foreseen an obvious and serious risk of death. There was no evidence that he knew of the declared allergy. The conviction therefore could not stand.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction for gross negligence manslaughter.

• Crown Court at Manchester: The appellant was convicted by a jury of gross negligence manslaughter. He had pleaded guilty to offences under the Health and Safety at Work etc. Act 1974 and the Food Safety and Hygiene (England) Regulations 2013.