Ibrahima Bah v R

In gross negligence manslaughter, a victim’s voluntary decision to undertake a dangerous activity does not break the chain of causation where the victim and defendant are acting in concert during the single episode in which the death occurs. The voluntary act must be separate from the defendant’s conduct, rather than merely accompany it, before it can operate as an intervening cause.

A person who assumes responsibility for operating a vessel owes a duty of care to its passengers. That duty is not displaced because the passengers knowingly participate in unlawful activity or accept its risks. A jury should not be invited to treat voluntary boarding, without more, as breaking causation.

The applicant was convicted after a retrial at Canterbury Crown Court of facilitating a breach of immigration law contrary to section 25(1) and (6) of the Immigration Act 1971, and of four counts of gross negligence manslaughter. He had agreed, under pressure from traffickers, to steer an overloaded and unsafe inflatable boat across the Channel. Four passengers died when the boat collapsed during the attempted rescue.

He sought leave to appeal against conviction, contending that the passengers’ voluntary choice to board the boat broke causation, that the jury should have been directed accordingly, and that a post-verdict email disclosed a jury irregularity. He also sought leave to appeal against his concurrent sentence of nine years and six months’ detention. The central issue was whether voluntary participation in the crossing could legally interrupt the causal connection between the applicant’s breach of duty as skipper and the deaths.

1. Leave to appeal against conviction and sentence was refused. The judge was correct to reject the submission of no case to answer on gross negligence manslaughter.
2. For gross negligence manslaughter, the prosecution had to prove, among other matters, that the breach of duty caused or made a significant contribution to death. Causation is fact-specific. A free, deliberate and informed act may break the chain where a person independently exploits a situation created by the defendant, but the principle does not apply where the parties act in concert in the same episode.
3. The applicant and the deceased were acting in concert in undertaking the covert Channel crossing. Their voluntary boarding of the boat accompanied the applicant’s piloting of it and the assumption of his duty as skipper. There was no later, separate voluntary act by a deceased passenger which interrupted the connection between the applicant’s breach and the deaths. R v Kennedy (No 2) [2007] UKHL 38 and R v Rebelo (No 1) [2019] EWCA Crim 633 concerned materially different circumstances, in which the deceased acted separately from the defendant.
4. The duty of care owed by a person in charge of a vessel is not negated because passengers voluntarily join a criminal venture or accept the risks to achieve its object. The applicant’s duty arose from assuming responsibility for steering an unsafe and unsuitable boat carrying the passengers.
5. Consequently, the passengers’ voluntary decision to embark was irrelevant to causation. A direction inviting the jury to regard that decision as capable of breaking the chain would itself have been a misdirection.
6. The post-verdict anonymous email gave no evidence of an irregularity in the jury’s consideration of the evidence or deliberations sufficient to make the convictions unsafe. Disclosure from the Attorney General and a direction to the Criminal Cases Review Commission were neither necessary nor expedient.
7. The sentencing judge permissibly treated the immigration offence as involving high harm and the manslaughter as high culpability, while allowing for the applicant’s subordinate role, youth, pressure from traffickers, mitigation and totality. The overall sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): Refused leave to appeal against conviction and sentence: [2024] EWCA Crim 1499.
• Crown Court at Canterbury: Following a retrial before Johnson J and a jury, the applicant was convicted of one immigration offence and four counts of gross negligence manslaughter. He received concurrent sentences producing an overall term of nine years and six months’ detention.