Rebelo, R. v

In gross negligence manslaughter, where a victim ingests a dangerous substance, causation turns on whether the prosecution proves that the victim did not make a fully free, voluntary and informed decision to risk death by taking it. Such a decision, or a real possibility of it, supersedes the defendant’s breach and prevents it being a substantial and operative cause of death.

The assessment is a balancing exercise. It includes the victim’s mental condition, capacity, ability to resist compulsion and understanding of risk. A jury direction need not use the word “eclipses” or impose a separate eclipsing requirement if it accurately conveys that test.

The defendant had supplied DNP, a highly toxic chemical marketed as a weight-loss product. Eloise Parry died after taking eight capsules. Following a retrial at the Central Criminal Court before Whipple J, the defendant was convicted of gross negligence manslaughter and sentenced to seven years’ imprisonment.

An earlier appeal had quashed the original conviction and ordered a retrial because the causation direction was defective: [2019] EWCA Crim 633. The present appeal alleged that the retrial judge again misdirected the jury by omitting a separate requirement that Ms Parry’s act eclipsed the defendant’s negligence. The defendant also challenged the refusal of a longer adjournment after replacing his legal team and sought to adduce further psychiatric evidence.

1. Appeal dismissed. The jury had been correctly directed on causation. The suggested direction in the first appeal was illustrative, not prescriptive. It did not require the prosecution to prove a separate matter in addition to the absence of a fully free, voluntary and informed decision by the deceased.
2. The essential issue was whether the prosecution had made the jury sure that Ms Parry did not make such a decision to risk death by taking the quantity of DNP ingested. If she made, or might have made, that decision, her choice superseded the defendant’s breach: he had merely set the scene and his breach was not a substantial and operative cause of death.
3. The later part of the suggested direction explained the meaning of a fully free, voluntary and informed decision. It did not add an independent “eclipsing” hurdle. The jury had to conduct a balancing exercise, taking account of capacity, mental health, compulsion, appreciation of risk and the amount taken. The retrial judge’s direction did this clearly and separately addressed freedom, voluntariness and information. The absence of the particular word “eclipses” did not matter; the judge also used it orally.
4. The renewed adjournment ground had no merit. The defendant chose to replace his lawyers late in the trial and did not show that the short period available materially affected the presentation of his case.
5. The court also refused to receive Professor Shaw’s proposed evidence under Criminal Appeal Act 1968. It largely repeated matters already covered by psychiatric experts, did not materially assist on the correct causation issue, and could not afford a ground for allowing the appeal. The approach in R v Kai-Whitewind [2005] EWCA Crim 1092 applied: a second expert cannot ordinarily be introduced merely to enhance or contradict earlier expert evidence.

• Court of Appeal (Criminal Division): The appeal against the retrial conviction was dismissed, and renewed applications for leave and to adduce fresh evidence were refused: [2021] EWCA Crim 306.
• Central Criminal Court: On retrial before Whipple J, the defendant was convicted of gross negligence manslaughter on 10 March 2020 and sentenced to seven years’ imprisonment.
• Court of Appeal (Criminal Division): The original manslaughter convictions were quashed and a retrial ordered on gross negligence manslaughter: [2019] EWCA Crim 633.
• Crown Court sitting at Inner London: The defendant was originally convicted of unlawful act manslaughter, gross negligence manslaughter and a food-safety offence on 27 June 2018.