Hongchi Xiao v R

Section 2 of the Unfair Contract Terms Act 1977 prevents a waiver from excluding or restricting liability for death or personal injury caused by negligence, in civil or criminal proceedings. A waiver therefore has no effect where the duty and negligent breach would otherwise be established. A judicial misdirection or intervention does not make a conviction unsafe automatically. The question is whether, viewed in the trial as a whole, the irregularity caused unfairness or materially undermined the verdict. A judge may clarify ambiguous evidence and leave factual resolution to the jury, provided the direction is neutral and the jury are reminded that the facts are theirs.

The appellant was convicted at Winchester Crown Court on 26 July 2024 of gross negligence manslaughter after Danielle Carr-Gomm died from diabetic ketoacidosis during a Paida Lajin workshop he led. He was sentenced to an extended determinate sentence of 15 years. The prosecution alleged that he owed her a duty of care and failed to encourage her to take insulin or obtain urgent medical assistance.

The appeal challenged directions concerning a signed waiver and the judge’s summary of evidence about when Ms Carr-Gomm said she had stopped taking insulin. The central questions were the effect of section 2 of the Unfair Contract Terms Act 1977 and whether the directions made the conviction unsafe.

Appeal dismissed.

1. Waiver. Section 2 of the Unfair Contract Terms Act 1977 applies to criminal as well as civil liability. A term or notice cannot exclude or restrict liability for death or personal injury caused by negligence. If a duty of care and negligent breach would otherwise be established, the waiver could not prevent the duty arising. The court referred to Smith v Bush [1990] 1 AC 831. It was a misdirection to tell the jury that the document might be decisive in a civil dispute. However, the judge correctly stated that it could not absolve the appellant of criminal liability, and his later comments merely identified that the standard form did not reflect the reality of the relationship. The verdict was not unsafe.
2. Judicial intervention and fairness. It was generally undesirable to give an agreed legal direction about a document and then revisit it in different terms during the factual summing-up. The court considered the authorities on impermissible interventions, including R v Hamilton (1969) 113 Sol Jo. 546, Randall v The Queen [2002] UKPC 19 and Bernard v The State of Trinidad and Tobago [2007] UKPC 34. Not every departure from good practice makes a trial unfair. The irregularity must be sufficiently serious, or so gross, persistent or irremediable, that the trial cannot be regarded as fair. The waiver directions did not reach that threshold.
3. Evidence concerning Ms Stoodley. The judge was entitled to summarise the evidence as he understood it, identify the ambiguity about whether the relevant sharing session was on Saturday or Monday, and remind the jury of the competing accounts. No particular formula was required. The direction was neutral and left the issue to the jury. The reference to the defence note did not make the conviction unsafe.

The court noted that, apart from the doctrine of ex turpi causa, the negligence in gross negligence manslaughter mirrors common-law negligence in civil proceedings, referring to R v Wacker [2002] EWCA Crim 1944 and R v Broughton [2020] EWCA Crim 1093. The reporting restriction order was discharged because no retrial was required.

• Court of Appeal (Criminal Division) — The appeal against conviction was dismissed. The reporting restriction order made under section 4(2) of the Contempt of Court Act 1981 was discharged.
• Winchester Crown Court — The appellant was convicted on 26 July 2024 of gross negligence manslaughter and sentenced on 6 December 2024 to an extended determinate sentence of 15 years.