Mohammed Kuddas [2019] EWCA Crim 837; [2019] 2 Cr App R 16

In Mohammed Abdul Kuddus [2019] EWCA Crim 837 the Court of Appeal (Criminal Division) allowed an appeal against conviction for manslaughter on the ground that the trial judge had directed the jury in terms that attributed to the appellant knowledge of a customer’s declared allergy when he in fact had no such knowledge.

Mr Kuddus was the sole director of RS Takeaway Ltd, which operated Royal Spice restaurant, and worked there as a tandoori chef. Harun Rashid, the former owner, also worked at the premises. On 30 December 2016 Megan Lee, aged 15 and believed to have a mild allergy to nuts, ordered food via Just Eat. Her friend entered “Nuts, prawns” in the comments box. Mr Rashid saw the comment but did not pass it on to anyone or contact the customer. No evidence suggested that the appellant saw the order or the comment. Food served to Megan contained peanut protein. She suffered an allergic reaction and died two days later. Following conviction on 26 October 2018 at Manchester Crown Court before Yip J and a jury, Mr Kuddus received concurrent sentences of 5 months for failing to discharge a general duty under the Health and Safety at Work etc. Act 1974, 3 months for contravention of Food Safety Regulations and 2 years’ imprisonment for manslaughter. Mr Rashid was convicted of all counts and sentenced to 3 years’ imprisonment. The company pleaded guilty to the first two counts and was fined.

The facts established that Royal Spice lacked proper allergen control systems. Samples taken after Megan’s death showed peanut proteins in the Peshwari naan, onion bhaji and Seekh kebab. Expert evidence confirmed that Hazard Analysis and Critical Control Point procedures were not in place or implemented. The restaurant had been notified of its obligations by the local authority in 2014 and relevant documentation about allergen risks, including warnings that allergies could be life‑threatening, had been supplied to the business. Mr Rashid gave evidence that he knew allergies could be fatal but had never discussed this with staff or pointed out the comment on the order. The appellant did not give evidence. His case was that he was a chef who prepared part of the order but knew nothing of the comment or Megan’s allergy.

The trial judge heard argument on how the jury should be directed concerning the third element of gross negligence manslaughter, namely whether a serious and obvious risk of death was foreseeable. The defence submitted that the jury should be directed to consider separately whether such a risk in fact existed, relying on evidence that Megan’s GP had not prescribed an EpiPen or referred her to a specialist and that she was considered to have only a mild allergy. The judge rejected that submission. She ruled that the issue was reasonable foreseeability of risk from the perspective of a reasonably prudent restaurateur at the time of breach, not the likelihood of Megan dying in light of her medical history of which the defendants knew nothing. She illustrated the point by a hypothetical example involving two customers with different severity of nut allergy and observed that to distinguish their cases according to medical background would be wholly illogical. The judge directed the jury that the prosecution must prove that the defendant owed a duty of care to customers to take reasonable steps to ensure their safety and not to provide food harmful to those with a declared allergy, that the duty arose if Megan’s allergy had been declared to Royal Spice, and that the question of foreseeability was to be assessed objectively by reference to what a reasonably prudent restaurateur in the defendant’s position would have known and understood in December 2016.

The appellant advanced two grounds of appeal. The first was that the judge erred in refusing to direct the jury that they needed to consider whether there was in fact a serious and obvious risk that the appellant’s breach would cause Megan in particular to die. Mr Myerson QC, who appeared for the appellant, argued that the prosecution must prove the factual existence of such a risk and that it was contrary to logic and justice to convict on the basis of what a reasonable person should have foreseen unless that level of risk actually existed. He sought to rely on evidence that Megan’s case was very rare and that her medical advisers had not considered her to be at serious risk of death. The second ground was that the judge wrongly directed the jury in terms which equated the knowledge of the business with that of the appellant even though he had not been notified of the declared allergy. Mr Myerson submitted that the directions treated the appellant as subject to a duty of care so long as the allergy was declared to the business regardless of his personal knowledge.

The Court rejected the first ground but allowed the appeal on the second. Giving the judgment of the Court, Sir Brian Leveson, President of the Queen’s Bench Division, sitting with Stuart-Smith and Jeremy Baker JJ, summarised the established principles governing gross negligence manslaughter. The prosecution must prove five elements: that the defendant owed a duty of care to the victim; that the defendant negligently breached that duty; that it was reasonably foreseeable that the breach gave rise to a serious and obvious risk of death; that the breach caused or contributed to death; and that the circumstances of the breach were truly exceptionally bad and so reprehensible as to amount to gross negligence requiring criminal sanction. The question of foreseeability must be assessed objectively with respect to knowledge at the time of the breach. A recognisable risk of death is nothing less than death; a risk of serious harm falling short of death is insufficient. The risk must be clear and unambiguous, not something which might become apparent on further investigation. The Court emphasised that foreseeability is to be judged objectively and prospectively as at the moment of breach.

The Court held that there was no separate requirement to prove that the particular victim was at serious and obvious risk of death. The relevant question, if in issue, is whether the defendant’s breach gave rise as an objective fact to a serious and obvious risk of death to the class of people to whom the defendant owed a duty. In the present case that was the class of nut allergy sufferers of whom Megan was one. To focus on the particular circumstances of the specific victim was to misunderstand what must be established. If for members of the class of nut allergy sufferers there was in fact a serious and obvious risk of death, it would be no answer that Megan’s medical advisers had assessed the level of risk in her specific case to be low. The restaurant did not have detailed information about its customer and Mr Rashid had conceded that he knew people with nut allergies could die if exposed to nuts. The Court endorsed the judge’s decision not to direct the jury in accordance with the over‑personalised submission advanced by Mr Myerson and rejected the submission that there was a separate and independent requirement to prove that Megan herself was at serious and obvious risk of death.

The Court nevertheless allowed the appeal on the second ground. The Court accepted that the appellant as sole director owed a duty to ensure that appropriate systems were in place to avoid the risk that a customer with a declared allergy was served food containing the allergen. However, the foreseeable risk for the purposes of gross negligence manslaughter was that, armed with notice that a particular customer fell into the category which the system was designed to deal with, a reasonable person in the position of the restaurateur would at the time of breach of duty have foreseen an obvious and serious risk of death. The difficulty in this case was that it was not suggested that the appellant was armed with notice that Megan fell into that category. He knew nothing of the allergy which she had declared. The case against him was based solely upon his failure to introduce appropriate systems at a time when he knew nothing of prospective customers’ allergies and there was no evidence that he was at any stage notified of Megan’s allergy. In those circumstances the direction to the jury on attribution of knowledge rendered his conviction unsafe. The Court was at pains to emphasise that its decision did not mean that the responsibilities of a restaurant owner could be ignored by ensuring that he or she remained unsighted on specific orders and allergy requirements, nor that a person could not in an appropriate case be convicted for failure to introduce appropriate protective systems. There is now general awareness of the potential risks to those who suffer from allergies and the courts will rigorously scrutinise the way in which restaurants discharge the duty of care owed to such customers. However, where the case rested on failure to introduce systems and the defendant had no knowledge of the particular customer’s allergy, the direction given failed to recognise the difference between the general duty owed by the appellant to put safety systems in place and the duties of those responsible for ensuring that appropriate steps were taken in relation to customers who did declare allergies.

In short, the appeal was allowed and the conviction for gross negligence manslaughter quashed because the judge directed the jury in terms that attributed to the appellant knowledge of the declared allergy when there was no evidence that he had such knowledge.

Rose [2017] EWCA Crim 1168; [2017] 3 WLR 1461
Zaman [2017] EWCA Crim 1783
Winterton [2018] EWCA Crim 2435
Adomako [1995] 1 AC 171
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191
Singh [1999] Crim LR 582
Misra and Another [2004] EWCA Crim 2375, [2005] 1 Cr App R 21
Rudling [2016] EWCA Crim 741
Sellu [2016] EWCA Crim 1716
Yaqoob [2005] EWCA Crim 2169

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