An Indian restaurant owner, Mohammed Zaman, has been sentenced to 6 years imprisonment for the gross negligence manslaughter of a customer with a peanut allergy, after he supplied him with a curry containing peanuts.
Paul Wilson, 38, was allergic to nuts and was “meticulous” about his condition; he asked for “no nuts” when he ordered his takeaway chicken tikka masala takeaway from the Indian Garden, Easingwold, North Yorkshire. He told staff that his meal must be nut-free, and the restaurant had written “no nuts” on his order and on the lid of his curry. Sadly Mr. Wilson was later found dead at his home in January 2014, as a result of a severe anaphylactic shock. Mr. Wilson died three weeks after a customer at another of Mr. Zaman’s restaurants also had an allergic reaction that required hospital treatment. She too had been assured her meal would not contain nuts.
Police and trading standards launched an investigation following Mr. Wilson’s death. Groundnut powder was found in the kitchen of the Indian Garden and had contaminated other ingredients. A test purchaser went to the Indian Garden the day after Mr. Wilson’s death and was assured by a staff member that they could buy a nut-free curry.
Mr. Zaman denied manslaughter by gross negligence, perverting the course of justice and six food safety offences. He claimed he left managers to run his restaurants and that included ordering stock and hiring staff. He was not on the premises when the curry was sold.
At the trial the jury was told that Mr. Zaman, who owned six restaurants in York and North Yorkshire, was almost £300,000 in debt, and to cut costs he swapped almond powder in recipes for cheaper groundnut mix containing peanuts, and employed untrained, illegal workers. Mr Zaman was found guilty of all charges except perverting the course of justice. Later the restaurant sent an email to apologise, which read “[We]…sincerely apologise to all our loyal customers for the recent heavy press surrounding the Easingwold branch and the somewhat disappointing decision for our founding father Mr Zaman. Mistakes have been made and this is no excuse but now is a time to move on as Mr Zaman so wishes. We are now in the process of launching a new dessert menu and have hired an exclusive pastry chef from London to design this. Our philosophy, started by our founder, [Mohammed] Khalique Zaman, was and still is to create real quality Indian cuisine of the highest standard. With exhilarating flavours and subtle aromas… Jaipur Spice will transform your perception of Indian food…You’ll spot the difference the moment the food arrives!”
Manslaughter is the offence of unlawful killing, or homicide, and is a crime that can only be committed by one or more individuals. Manslaughter covers the majority of homicides that are not murder, and the court has discretion in the punishment awarded ranging from an absolute discharge to life imprisonment to take account of mitigating circumstances, including the circumstances that led up to the unlawful killing. No such mitigation is available in murder, since the life sentence of imprisonment is mandatory.
At trial, the prosecution will have to satisfy the jury beyond reasonable doubt that (i) the defendant must have breached their duty of care by virtue of their negligence (ii) that the negligence must have caused death, and finally (iii) that the negligence must amount to ‘gross negligence’. That is, “Having regard to the risk of death involved, [was] the conduct of the defendant so bad in the circumstances as to amount [in the jury’s mind] to a criminal act or omission?”
On conviction, the sentencing Judge must take into account aggravating factors indicating either a higher culpability, or a more than usually serious degree of harm. To balance these there are a number of mitigating factors, indicating lower culpability. Factors that reduce seriousness or reflect personal mitigation include good character, and exemplary conduct during the investigation and trial of the alleged offence. Factors increasing the seriousness of the crime include an attempt to conceal evidence.
The Corporate Manslaughter and Corporate Homicide Act 2007 was introduced to make it easier to successfully prosecute large organisations where a management failing has led to death. Under the previous law, before a company could be convicted of manslaughter the prosecution had to prove that there was a “directing mind”, that is an individual at the very top of the company who was personally guilty of manslaughter. This “identification principle” meant that, in practice, large companies with complex management structures were difficult to prosecute and only smaller companies with hands-on directors have been convicted of corporate manslaughter. There were no manslaughter prosecutions following the Herald of Free Enterprise ferry disaster in 1987 or the Southall rail disaster in 1997.
Under the Act, the court looks at management systems and practices across the organisation, and decides how an activity is managed and the adequacy of those arrangements. The Act was intended to complement rather than replace existing health and safety offences and organisations may still be prosecuted under them as an alternative to, or in addition to, the new offence under the Act.
The offence of corporate manslaughter only applies if the harm resulting in death (ie not the death itself) is sustained within the UK, In the UK’s territorial waters (for example, in an incident involving commercial shipping or leisure craft), on a British ship, aircraft or hovercraft or on an oil rig or other offshore installation already covered by UK criminal law. It applies to “organisations”, which includes companies incorporated in the UK or overseas, limited liability partnerships and public bodies such as local authorities and NHS bodies as well as voluntary and community groups, social enterprises, and charities.
The management failure need not have been the sole cause of death; it need only be a cause (although intervening acts may break the chain of causation in certain circumstances). “Senior management” is defined as those persons who play significant roles in the making of decisions about how the whole or a substantial part of an organisation’s activities are to be managed or organised or actually managing or organising those activities. Hence this covers both those in the direct chain of management as well as those in strategic or regulatory compliance roles. The intention is to capture those whose role is decisive or influential.
The Act does not require the prosecution to prove specific failings on the part of individual senior managers. It will be sufficient for a jury to consider that the organisation’s senior management collectively were not taking adequate care, and this was a substantial part of the organisation’s failure.
The offence cannot be avoided by senior management delegating responsibility for health and safety. The Act is concerned with the way an activity is managed or organised and considers how responsibility was being discharged at different levels of the organisation. Senior management need to ensure that they have adequate processes for health and safety and risk management in place.
The Act does not create new duties as they are already owed under the civil law of negligence, and the new offence is based on that. A “relevant duty of care” is defined as certain types of duty of care owed by an organisation under the law of negligence, namely a duty of care owed to employees or other persons working for the organisation, as an occupier of premises, in connection with the supply of goods or services, in connection with the carrying out of any commercial activity, in connection with the carrying out of any construction or maintenance operations, or in connection with the use or keeping by the organisation of any plant, vehicle or other thing.
The Act provides that deciding whether or not an organisation owes a duty of care to a particular individual is a question of law for the Judge. These include:
- An employer’s duty to provide a safe system of work for its employees, which might include contractors, secondees or volunteers;
- Duties owed by a transport provider to its passengers.
- Duties owed by a retailer to its customers for the safety of its products.
- Duties owed by the provision of medical treatment by the NHS.
- Duties owed as a result of farming or mining.
A “gross breach” means conduct which falls far below what can reasonably be expected of the organisation in the circumstances. Where it is established that an organisation owed a relevant duty of care to a person and it falls to the jury to decide whether there was a gross breach, section 8 sets certain factors which the jury must take into account, namely:
- Whether the organisation failed to comply with any health and safety legislation.
- How serious that failure was.
- How much of a risk of death it posed.
This will involve looking at senior management conduct, collectively and individually, to pinpoint the root cause of the failure to provide adequate practices and systems for managing the particular activities that the organisation undertakes.
In reaching its verdict, the Act provides that the jury may consider whether there were any attitudes, policies, systems or accepted practices in the organisation that were likely to have encouraged a management failure or to have produced tolerance of it, and will have regard to any health and safety guidance that relates to the alleged breach. The Explanatory Notes to the Act state that there is no question of liability under the Act where the management of an activity includes reasonable safeguards and a death nonetheless occurs.
The offence is triable in the Crown Court only and so involves a trial by jury. If convicted, the penalty is an unlimited fine (as the offence can only be committed by an organisation rather than an individual, imprisonment is not an appropriate penalty). But in addition the courts have power to also make orders including;
Remedial order This requires the organisation to take steps to remedy the management failure, including any deficiencies in health and safety policies, systems or practices.
Publicity order This requires the organisation to publicise the conviction. A publicity order may require publication in a specified manner of the fact of conviction, specified particulars of the offence, the amount of any fine and the terms of any remedial order. It is a criminal offence not to comply with the order, punishable by an unlimited fine.
Compensation Under the Powers of Criminal Courts (Sentencing) Act 2000, the court can consider whether to order the defendant to pay compensation to the victim’s family. In practice, the criminal courts are likely to leave the civil courts to deal with the issue of compensation unless an order for compensation is specifically required.
Prosecution costs order A convicted defendant will (subject to its ability to pay) ordinarily be ordered to pay the prosecution’s reasonable costs.
Victim surcharge Following conviction, all defendants ordered to pay a fine will also be ordered to pay £15 by way of victim surcharge. This levy, which was introduced in 2007, helps fund support services for victims of crime.
The offence does not apply to anything done or omitted before the Act came into force. The first charge under the Act was brought against Cotswold Geotechnical Holdings, following the death of one of its geologists when a pit collapsed on him while he was collecting soil samples. One of the directors (Peter Eaton) was also personally charged with the common law offence of gross negligence manslaughter (which carries a maximum sentence of life imprisonment). A jury in Winchester Crown Court found the company guilty of the offence and the company was fined £385,000. The gravity of the fine was said to reflect the seriousness of the offence. The court acknowledged that the company’s financial state and the possibility that a greater fine would cause the company’s insolvency meant that the fine could be paid over a period of ten years at £38,500 per annum. The level of fine was said to act as a deterrent and to ensure that other companies follow health and safety guidance. On 11 May 2011, the company lost its application for permission to appeal against its conviction and the Court of Appeal upheld the fine of £385,000.
For more information contact David Vaughan-Birch.