Zaman, R. v [2017] EWCA Crim 1783

[2017] EWCA Crim 1783

Case No 201603723 B3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT TEESSIDE

THE RECORDER OF MIDDLESBROUGH

(HIS HONOUR JUDGE BOURNE-ARTON QC)

Ind No T20150463

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/11/17

Before

LORD JUSTICE HICKINBOTTOM

MR JUSTICE OPENSHAW

HIS HONOUR JUDGE TOPOLSKI QC

(sitting as a Judge of the Court of Appeal (Criminal Division))

Between

RRespondent

MOHAMMED KHALIQUE ZAMANAppellant

Robert Smith QC and Mark Laprell (instructed by O’Garras Solicitors) for Appellant

Richard Wright QC and Craig Hassall (instructed by The Crown Prosecution Service)

for Respondent

Hearing dates 12 October 2017

Judgment Approved

Lord Justice Hickinbottom :

Introduction

[1]On 30 January 2014, Paul Wilson was found dead at his home in North Yorkshire. He had spent the afternoon and early evening drinking with a friend, before purchasing a takeaway meal from the Indian Garden Restaurant, Easingwold, which he took home and started to eat. He suffered from an allergy to peanut, and the waiter from whom he had ordered the meal had specifically confirmed that it contained no nuts. Unfortunately, the sauce contained substantial amounts of peanut, ingestion of which caused Mr Wilson anaphylactic shock, which killed him.

[2]The Appellant Mohammed Khalique Zaman owned the restaurant. On 23 May 2016 in the Crown Court at Teesside, before the Recorder of Middlesbrough (His Honour Judge Bourne-Arton QC) and a jury, he was found guilty of the manslaughter of Mr Wilson (Count 7), and six charges of contravening various food safety requirements (Counts 1-6). He was sentenced that day to six years’ imprisonment for the manslaughter, and sentences of up to nine months for each of the food safety offences, all concurrent. With the leave of the single judge, in respect of the manslaughter, he now appeals against both conviction and sentence.

[3]Before us, Robert Smith QC and Mark Laprell of Counsel appeared for the Appellant, and Richard Wright QC and Craig Hassell of Counsel for the Crown. Mr Wright and Mr Hassall appeared for the prosecution at the trial. Mr Smith and Mr Laprell are more recently instructed. We greatly appreciated their especially able and helpful submissions.

Background

[4]European Union Regulation (EC) No 852/2004 of the European Parliament and Council of 24 April 2004 on the hygiene of foodstuffs requires all those who handle food to be appropriately trained in doing so safely. Approved Level 2 Food Hygiene and Safety for Catering courses are designed to give appropriate basic training. Providers of the courses certify those who have completed the course; and the certificates are used by those who work in the food industry to show that they have completed the course and by employers for audit purposes.

[5]In a significant proportion of the population, groundnut or peanut causes the release of histamine which induces vasodilation and constriction of the bronchioles in the lungs. As a result, in about one in every 70 people in the United Kingdom, exposure to peanut causes a variety of symptoms, from mild skin irritation, flushing or swelling, to severe breathing difficulties, upper airway obstruction and cardiac arrest. Where the allergic reaction is of rapid onset and severe, it is referred to an anaphylaxis or anaphylactic shock.

The Facts

[6]Paul Wilson was diagnosed as having an allergy to peanut when he was seven years old, as a result of eating a chocolate bar with peanuts in it. His allergy was severe, and could be triggered simply by being in the close proximity of peanut. As a result, he took no chances. For example, although his allergy was restricted to peanut, when he ordered food in a restaurant he always asked for confirmation that it contained no nuts of any kind.

[7]The Appellant was born on 17 December 1962. He came to the United Kingdom in 1978. His uncle had a restaurant in York, and trained and employed him. In due course, the Appellant became involved in owning and running a number of restaurants himself. By 2013, although not playing any part in the cooking or serving of food, he was a highly experienced restaurateur, owning five restaurants in York and North Yorkshire including the Indian Garden, Easingwold.

[8]There was evidence that the Appellant’s business was doing poorly with an overdraft of just over £200,000 at the beginning of 2013, rising to nearly £300,000 by the end of that year. From August to December 2013, a number of cheques, totalling about £30,000, had bounced. The Appellant denied that there were any financial concerns: he said his businesses were doing well, and the problems with the cheques were caused by a change in banking systems, not a cashflow problem.

[9]One of his ingredients suppliers was Khanjra International. Their accounts manager (Imtiaz Gurji) gave evidence to the effect that the Appellant had ordered almond powder from the company until January 2013, by when the account was overdue and cheques were bouncing. Orders apparently ceased that month. However, in June 2013, the balance was paid off, and trade between the companies restarted. The Khanjra International salesman who serviced the Appellant’s restaurants was Fakir Chilwan, who had dealt with the restaurants for 15 years. He would visit every 8-10 weeks, when he would deal largely with the Appellant himself. In June 2013, Mr Chilwan said that he had a meeting with the Appellant and two of his staff, and the Appellant ordered mixed nut powder rather than almond powder. It was well-known that mixed nut powder comprised wholly or mainly peanut; and it was only half the price of almond powder. Mr Chilwan said that he told the Appellant that, if he was going to use peanut, then that would have to be included on his menu; but the Appellant assured him that it already was. From then, the Appellant placed orders for mixed nut powder, and was supplied with and invoiced for such powder. The Appellant denied that he had attended such a meeting, and said that the switch of nut had been done covertly. In any event, he (the Appellant) did not know of the change.

[10]On 3 January 2014, Ruby Scott went to another of the Appellant’s restaurants in Easingwold, the Jaipur Spice, and ordered chicken tikka masala and chicken korma. She had been diagnosed as having a peanut allergy in 2012; and told the waiter who took the order. He confirmed that the meals did not have peanut in them. However, at home, when she started to eat the korma sauce, she immediately had a violent reaction to it. Fortunately, she was not alone; and her friends took her to hospital, where she made a full recovery. Later the same evening, Ms Scott’s mother telephoned the restaurant, who confirmed that only almond and coconut was used in the meals she had purchased; and peanut oil was not used in the cooking. The manager to whom she spoke confirmed that the meals would have been safe for Ms Scott to eat.

[11]There was some dispute as to precisely when the Appellant learned of this incident; but he accepted that he knew about it by 20 January 2014. He rang Mr Chilwan on 22 January. The Appellant said that he told Mr Chilwan that he had never used mixed nut powder; and Mr Chilwan was to collect the powder, and to supply nothing but almond powder thereafter. In the meantime, he told the chef to stop using the mixed nut powder. It was Mr Chilwan’s evidence that the Appellant had then simply told him that a customer had vomited.

[12]As a further consequence of the incident involving Ms Scott, Susan Airton of the North Yorkshire Trading Standards Department visited the Jaipur Spice Restaurant on the evening of 23 January 2013, and made a test purchase of chicken korma. She spoke to Deepak Bhattarai, the manager, who, when asked if it there was peanut in it, confirmed that it contained only almond and coconut. However, the meal was analysed, and it was an agreed fact at trial that it contained peanut at a level of 5-10%, sufficient (it was also agreed) to cause a severe allergic reaction in any person with an allergy to peanut.

[13]On her visit, Mrs Airton inspected the kitchen, where she found two tubs marked “coconut” and “groundnut”. The tub marked “groundnut” had in it nut powder which looked like peanut powder and, on analysis, was found to contain fats consistent with being peanut although it was slightly contaminated with almond. A sample taken from the coconut was found to be contaminated with peanut and almond at a level sufficient to trigger an allergic reaction. Mrs Airton told Mr Bhattarai that he must tell his customers that they were using peanut.

[14]It was a week later that Mr Wilson died. At trial, it was uncontroversial that his death resulted from him suffering an anaphylactic reaction to peanut he had consumed as part of the meal he had purchased earlier that evening from the Appellant’s restaurant, the Indian Garden.

[15]Mohammed Wasim Khan was the waiter who took the order for that meal. He had leave to remain in the UK; but he had permission to work only as a domestic worker in the Appellant’s household, not in the restaurant. He had had no training in food hygiene and safety. Mr Khan did not give evidence at trial, because he had disappeared. The Appellant said that he had told Mr Khan not to go to the restaurant, and never knew that he worked there.

[16]The chef that evening was Fakhar Uddin. He did not have leave to be in the UK, and thus had no right to reside or work. He had been trained in food hygiene and safety to Level 2. Mr Uddin did not give evidence at trial: he too had disappeared. The Appellant said that Mr Uddin had been employed as a relief chef by the restaurant chef, and he did not know he worked there.

[17]Mr Khan took the order from Mr Wilson; and it is clear that Mr Wilson did say that his meal should contain no nuts, because the order was marked “No nuts”. The box in which it was served was also similarly marked. However, as we have described, the meal contained substantial amounts of peanut, which proved fatal for Mr Wilson.

[18]The Appellant said that, as a result of this further incident, he telephoned Mr Chilwan again, and repeated his instructions to take away the mixed nut powder and replace it with almond powder.

[19]In the meantime, Mrs Airton and a colleague from the Trading Standards Department, Robert Blacklock, returned to the restaurant the following day, 31 January 2014. There they found several unmarked tubs of ingredients. A sample from one which contained nut powder was analysed, and found to contain fats consistent with peanut but not with almond. A sample from a bag found marked “groundnut” had similar results. There was no sensible doubt that the tub and bag were full of peanut powder. A sample from another unmarked tub containing sugar was found to have significant peanut contaminant, sufficient to cause a severe allergic reaction in an individual with an allergy to peanuts. Mr Blacklock saw the chef using the same spoon to take ingredients from different containers, which could and would have resulted in mutual contamination.

[20]Mr Blacklock returned later that day, and told Mr Bhattarai that, if customers wanted a meal that contained no nuts, they should ensure that that was provided. Mr Blacklock was concerned that the restaurant had no procedures for ensuring that that occurred. Mr Bhattarai telephoned the Appellant, who came. They agreed that they could not provide a peanut-free meal; and, if in the future anyone asked for no nuts, they would not serve them at all, and they would put up a sign to that effect.

[21]However, the following day, 1 February 2014, Mark Watson of the Trading Standards Department visited the restaurant, to make another test purchase. He ordered tandoori chicken, and asked if that could be done without nuts. The waiter asked if he had an allergy; and he said that his wife did. He was told that that would be no problem: the meal would contain no nuts. It was an agreed fact at trial that, on analysis, the meal with which he was served contained 19mg of peanut, sufficient to cause an allergic reaction in a predisposed individual. The Appellant said that that was entirely the waiter’s fault: the Appellant had clearly told him not to serve anyone who said they had a nut allergy, and for some reason the waiter has simply not obeyed that clear order.

[22]Mr Blacklock returned to the restaurant on 2 February 2014, and he wrote out for the Appellant what he had to do, namely:

“In order to go forward in allergen control you need to: 1. Continue to use almond powder not mixed nuts/peanuts. 2. List the ingredients in each recipe. 3. If you get a request from a customer you can tell him that the food on the menu contains what the customer has requested. 4. For the allergens identified in each recipe you should give advice that there may be traces of the allergen if the allergen is used in the kitchen. 5. The notices can be replaced by another notice, ‘Please note that some dishes may contain or have traces of nuts and nut oils or may have been made alongside other products containing nuts. 6. You should not serve a customer who says he has an allergy where you identify that the food contains the allergen. 7. A written procedure should be made for the front of restaurant staff and signed by those staff so they understand the position.”

The Law

[23]The Appellant was charged with gross negligence manslaughter, the relevant elements of which were set out in the speech of Lord Mackay of Clashfern LC in Adomako

[1995] 1 AC 171

at page 187B-C.

[24]The prosecution has to prove the following elements. i) In accordance with the ordinary principles of negligence, the defendant owed the deceased a duty of care. ii) The defendant was in breach of that duty of care. iii) A reasonably prudent person would have foreseen that the defendant’s actions or omissions constituting the breach of duty had exposed the deceased to an “obvious and serious” risk of death. This court in Misra and Srivastava

[2004] EWCA Crim 2375

;

[2005] 1 Cr App R 21

and Yaqoob

[2005] EWCA Crim 2169

confirmed that that the relevant risk to be reasonably foreseen is nothing less than the risk of death. iv) The breach of duty either caused, or made a significant contribution (i.e. a contribution that was more than negligible) to, the deceased’s death. v) The departure of the defendant’s conduct from the proper standard of care incumbent upon him, involving as it must have done the risk of death, was such that the breach of duty can properly be characterised as gross negligence and therefore criminal.

The Trial

[25]The Appellant accepted that he owed customers such as Mr Wilson a duty of care to take reasonable steps to ensure their safety, and in particular to provide food that was not harmful to customers who made clear that they have a food allergy.

[26]It was the agreed evidence that the risk of allergic reaction to peanut was more serious than the risk of such a reaction to almonds, because, in respect of peanut, the incidence of such reactions is higher and the potential consequences are likely to be more serious. Consequently, changing the nut powder used in a restaurant from almond to peanut enhanced the risk to customers. The Appellant frankly accepted in his cross examination that he was aware of the risks posed by food allergens, and he knew that exposure to such allergens could be fatal.

[27]It was the prosecution case that, in the face of this enhanced risk of which the Appellant was well aware from June 2013 (when he changed the nut powder to peanut, and was told by Mr Chilwan of the enhanced risk), far from taking reasonable steps, he had taken no steps to ensure the safety of his customers. Even on his own evidence, he was aware of the change and the enhanced risk from January 2014 (after the incident involving Ms Scott, and the intervention of the Trading Standards Department). The Appellant accepted that realistically that duty could only be discharged through a process of training, instruction and supervision of the Appellant’s staff, including having systems and procedures that ensured that a customer with a declared allergy was not served with a meal containing the relevant allergen. His defence was that “he had acted as a reasonable person would do in his position, in that the staff had sufficient training and knowledge to deal with the customer’s order” (paragraph 2 of his Defence Statement in relation to Count 7).

[28]He said that he had never changed the nut powder used in his restaurants from almond to mixed/peanut. He had been trained in food hygiene and safety in the 1985. In respect of his staff, his evidence was that he organised such training to Level 2 through, amongst others, a Muhammad Sanaullah who gave evidence at trial. Mr Sanaullah said that his Level 2 training included up to 30 minutes training on food allergens. Mr Uddin (the chef on the day) had received level 2 training (although not from Mr Sanaullah); and, although Mr Khan (the waiter) had not received any food and hygiene training, that was not the Appellant’s fault, because he did not know that Mr Khan was working at the restaurant. The Appellant accepted that, at his Indian Garden Restaurant, there were no relevant written procedures or policies (and, in particular, no written procedures or policies in respect of allergens), no written recipes, no labelling of containers in the kitchen or storeroom, and no system for recording the fact that each member of staff understood the procedure and policy in relation to allergens. His case was that he provided training and verbal instructions; and that appropriate systems and procedures did exist, but again verbally. As he had issued instructions to his managers and thus staff, the obligation he owed to customers had been discharged. He expressly denied doing anything in discharge of that obligation other than speak to his manager who, he said, both understood and complied with his instructions. When the list of actions set out by Mr Blacklock after Mr Wilson’s death was put to him, the Appellant accepted that those were reasonable steps to take; but he said that he had already instructed his staff to do all those things, although only verbally.

[29]Clearly, a number of factual issues arose as a result of this defence. One question was whether the Appellant changed the order for nut powder from almond to mixed/peanut in June 2013 as Mr Chilwan said; or whether this change was unknown to the Appellant until after the incident involving Ms Scott in January 2014 as the Appellant said. However, although this issue went to credibility, it was not of any causative potency, as the Appellant accepted that, by 20 January 2014 at the latest, he knew that peanut had been supplied and had adequate opportunity to take steps to ensure that no customer who had declared a peanut allergy came to any harm as a result of that switch. It was his case that he had taken all reasonable steps.

[30]Generally, a more important question concerned the instructions given and enforced by the Appellant to his staff about serving meals to those who declared that they had a food allergy. It was the prosecution case that the Appellant took no steps to ensure the safety of such customers, in that his staff were not trained, instructed or supervised; or, if any training or instructions were given, no steps were taken to ensure compliance by staff. As a result, the Appellant’s restaurant consistently served those who had declared a peanut allergy with meals containing peanut. The policies, procedures, training and instruction, such as they were, were incapable of ensuring a peanut-free meal was served. Certainly, it was said, by 23 January 2014 – after the incident involving Ms Scott and the subsequent test purchase and trading standards intervention – the Appellant was on specific notice that his internal systems were defective and that steps had to be taken to protect such customers in the future; but he had taken no steps by 30 January 2014 when Mr Wilson purchased his meal.

[31]It was common ground at trial that the Appellant never worked in the restaurant kitchen, and certainly did not prepare Mr Wilson’s food on 30 January 2014. Indeed, he was not present in the restaurant that evening. It was his firm case that he had taken at least reasonable steps to ensure the safety of his customers with food allergies, but he had been let down, first by Mr Chilwan who had swapped the nut powder supplied without telling him; and then, more crucially, by his staff, who had repeatedly failed to comply with their training and his clear and strict instructions (including specific instructions given after the incident involving Ms Scott) as to how to deal with those who declared a peanut allergy.

[32]The jury, having grappled with these issues, found the Appellant guilty of gross negligence manslaughter.

[33]Before us, Mr Smith pursued two main grounds of appeal – namely that the judge erred in the way in which he directed the jury with regard to(i) breach of duty and

(ii) causation – and several further complaints which, he frankly accepted, were of arguably less significance in terms of safety of the verdict. I will deal with those in turn.

Breach of Duty (Grounds 1, 2 and 8 of the Grounds of Appeal)

[34]Mr Smith submitted that, on a charge of gross negligence manslaughter, where there are separate and distinct acts or omissions each of which is capable of amounting to a breach of duty, it is essential that the jury is given directions to enable them to identify and then determine the individual acts or omissions that constitute any breach of duty, for two reasons.

[35]First, where, in a particular case, it is said by the prosecution that a number of matters are said to constitute one element of an offence, and any of them is capable of doing so, then, whilst it is enough to establish the element that any of them is proved, such a matter must be proved to the satisfaction of the whole jury (which term I use to include an appropriate number for a majority verdict) (Brown

(1984) 79 Cr App R 115

). This is a well-established proposition that avoids the possibility of each individual juror finding at least one matter has been proved, without the whole jury finding that the same matter has been proved; and thus the possibility of finding a defendant guilty in circumstances in which the jury as a whole is not sure that that element of the offence has been proved. The jury must therefore be given what is now called a Brown direction, identifying the ways in which the particular element is said to be satisfied, and requiring the whole jury to be satisfied in respect of at least one of those ways.

[36]Second, the jury need to identify and determine the individual acts or omissions which amount to a breach of duty so that they can properly determine whether any proven breach of duty satisfies the remaining elements of the offence. Once any particular act or omission is proved and the jury is satisfied that it amounts to a breach of duty, the jury then have to go on to consider a series of questions that are specific to that particular breach, such as(a) causation,

(b) the seriousness of the risk generated as a consequence of the breach of duty and (iii) the degree of negligence for which, in the light of their findings, they consider the defendant is responsible.

[37]Mr Smith submitted that the prosecution case on breach of duty here was not presented as a single allegation of fact. Rather, there were three distinct allegations of fact, each of which was said to amount to a breach of duty on the part of the Appellant, namely: i) Having ordered peanut instead of almond as an ingredient, the Appellant failed to take such steps as were reasonable to alert customers to the risk of presence of peanut in meals. ii) The Appellant had failed to ensure that staff had been properly trained or instructed in food allergens. iii) The Appellant has failed to provide a system to prevent cross-contamination of food products.

[38]Mr Smith submitted that it was vital that the judge assisted the jury by identifying these distinct ways in which the prosecution said that the Appellant had breached his duty of care to Mr Wilson; and directed them(i) that they were required to be unanimous as to the manner in which the Appellant had breached his duty of care (a Brown direction); and

(ii) given them directions as to how, in respect of any proven breach of duty, they needed to go on to consider whether that particular breach of duty satisfied the other elements of the crime such as causation and risk.

[39]In the event, the judge made no attempt to identify the acts or omissions that were capable of amounting to a breach of duty; and gave no directions as to the correct, Brown approach to these possibilities, nor as to the need to consider the consequences of the particular breach when considering other elements of the crime. Instead, the judge merely directed the jury to consider whether the Appellant had “failed to take those steps which you think he should reasonably have done” or had “failed to take those steps that you would consider reasonable for him to take to prevent [Mr Wilson] being exposed to the risk of eating a meal containing peanut”, the test being “whether in all the circumstances, as you find them to be, a reasonably prudent person would conclude that [the Appellant] failed to take those steps that were reasonable to take to ensure that someone with a peanut allergy was not given a meal that contained peanut…”. By treating the matter in the round in that way, the directions ran the risk that the jury would improperly aggregate or accumulate negligent acts and omissions the Appellant may have made.

[40]The directions in respect of breach of duty were thus wrong in law and, so far as the safety of the verdict is concerned, fatally so.

[41]However, eloquently as it was made, we are entirely unpersuaded by that submission. Indeed, we consider that it is based upon a false premise as to the nature of the breach of duty alleged against the Appellant. It was, rightly, common ground at the trial that the Appellant owed customers a duty of care to take reasonable steps to ensure their safety, and in particular to provide food that was not harmful to customers who made clear that they have a food allergy.

[42]It was the prosecution case that the Appellant failed to take such reasonable (or, indeed, any) steps to that end. Of course, there was not a single, unique way in which the Appellant could have complied with his duty of care. Some steps, singly, might have sufficed. For example, he could have ensured that peanut and its derivatives were not used at all in his restaurants; or that anyone who said that they were allergic to peanut would not be served in any restaurant. Otherwise, he could have complied with the duty by a variety of measures which, taken together would have been sufficient. Such steps might have included setting up systems to ensure that anyone who declared a peanut allergy was not served with a meal in which peanut was an ingredient, to ensure peanut did not contaminate other ingredients, and the placing of warnings on the menu.

[43]Whilst of course the prosecution always bore the burden of proof, it was the Appellant’s case that he had taken all reasonable steps. For example, generally, he accepted that the steps that Mr Blacklock said on 2 February 2014 should be taken in respect of food allergens were reasonable steps to take; but that he had instructed his managers in the same terms, albeit verbally and not in writing. In other words, by the time Mr Wilson purchased his meal, the Appellant had taken all the steps that Mr Blacklock said he ought to have done.

[44]More specifically, on 22 January 2014 in the wake of the incident involving Ms Scott, the Appellant said that he told Mr Chilwan to collect the mixed nut powder that he had supplied, and to supply nothing but almond powder thereafter; and, in the meantime, he told the chef to stop using the mixed nut powder. However, none of that was in writing either.

[45]Therefore, the case and evidence of the prosecution, and that of the Appellant, painted very different pictures. The prosecution case was that the Appellant had taken no steps to avoid injury to customers who suffered from and declared allergies; and the Appellant’s case was that he had taken all of the steps advised by Mr Blacklock, and at least all reasonable steps, but his instructions had all been verbal; and his staff had, for some reason, simply failed to comply with them. Vital issues for the jury were whether the Appellant was or might be telling the truth when he said that he had instructed his staff to take steps to avoid injury to customers who suffer allergies – and, if so, the extent of instructions given – and, if instructions were given, whether, given the apparent history of failure of staff to carry out such instructions, the mere giving of instructions, without further steps to ensure compliance, was sufficient to discharge his duty of care.

[46]The prosecution case was thus based upon a single alleged breach of duty by the Appellant, i.e. that he had failed to take reasonable steps to avoid injury to customers who had a declared allergy. It was never the prosecution case that individual acts or omissions of the Appellant upon which it relied, including the Appellant’s failure to have taken steps that Mr Blacklock and the prosecution expert Dr Chan said could and should have been in place, each constituted a discrete breach of duty.

[47]It was the Appellant’s defence case that the nut powder had been switched without his knowledge; and that he had both trained and verbally instructed his staff appropriately, both before and after the incident involving Ms Scott. Whilst the burden of proof always lay upon the prosecution, and so they had to prove that the reasonable steps which the Appellant said he had taken had either not been taken or did not amount to reasonable steps, that did not mean that it became the prosecution case that each discrete matter raised in the defence was capable of amounting to a breach of duty, as Mr Smith suggested. Indeed, that was clearly not the case. The fact that the Appellant had changed the nut powder from almond to peanut – if the whole jury had found that to have been the case – would not in itself have amounted a breach of duty to customers such as Mr Wilson. There would have been no breach of duty if, for example, reasonable steps had been taken to address the additional risk posed by the change of ingredient. Because it was never the prosecution case that any one of the specific acts and omissions was in itself capable of constituting a breach of duty, this was not a case in which the whole jury had to be satisfied in respect of one matter before they could find breach of duty proved. This was simply not a case in which a Brown direction was required, or even appropriate.

[48]Given the nature of the breach of duty upon which the prosecution relied, the jury were required to consider, on the evidence as a whole, what steps, if any, the Appellant had taken to avoid the risk of harm to Mr Wilson; and then to consider whether those steps were reasonable in all the circumstances. In our judgment, on the question of breach of duty, the judge correctly directed the jury in those respects.

Causation (Grounds 3, 9 and 10 of the Grounds of Appeal)

[49]At the trial, factual causation was not in issue: it was common ground that Mr Wilson died as a result of the peanut contained in the meal he had bought from the appellant’s restaurant and eaten at home. However, as Adomako confirmed, the prosecution is also obliged to prove legal causation, i.e. that the Appellant’s breach of duty caused or made a significant contribution to the death.

[50]Although the judge correctly said in the written directions given to the jury that the prosecution had to prove that the breach of duty caused Mr Wilson’s death, in relation to the issue of legal causation Mr Smith submitted that the judge erred in his summing up in two respects. First, he submits that the judge, confusing factual causation (which was conceded) with legal causation (which was not), misdirected the jury that the Appellant did not dispute that, if a breach of duty on his part was proved, then that breach caused or materially contributed to Mr Wilson’s death. Second, and more specifically, it is said that the judge failed to leave to the jury the defence submission that the negligence of the chef was the sole cause of the death, such that any breach of duty by the Appellant had no causative potency.

[51]Mr Smith seeks support for his submission from a note prepared by Alistair Webster QC, who appeared for the Appellant in the Crown Court, who, in response to the question, “Was causation accepted by the defence?”, says that, whilst factual causation was accepted, “What was not accepted was that Mr Zaman was guilty of a breach of duty which was the cause of death”. In response to the question, “Was it conceded that any breach established would have been causative of death?”, answered “No”. He then refers to his closing speech, in which he specifically referred to the part played by the chef. The notes for his closing read:

“The reality is that, having been given that order [marked ‘No nuts’] and not producing what had been ordered, if you are looking at someone who bears the primary responsibility for the death of [Mr Wilson], it was undoubtedly the chef”

. Mr Webster concludes:

“The whole defence case was predicated on the basis that the [Appellant] had taken all reasonable steps.”

[52]We have already dealt with the argument that the judge erred in not identifying the specific acts and omissions capable of amounting to a breach of duty, and therefore did not properly direct the jury with regard to the requirement that the breach of duty, as found by them, caused or materially contributed to the death. The breach of duty alleged was singular: it was alleged that the Appellant failed to take reasonable steps to ensure the safety of his customers with food allergies.

[53]Mr Wright for the Crown submits that the central issue in the case before the Crown Court, raised by the defence, was whether the Appellant had, as he claimed, taken reasonable steps, the focus therefore being upon whether the prosecution had proved breach of duty. It was the Appellant’s case that he had taken reasonable steps, and the cause of death was an unrelated act of negligence perpetrated by one or more of his staff. It was not suggested by the Appellant that he might be found to have failed to take reasonable steps but that breach of duty towards Mr Wilson was, in terms of causative potency, entirely obliterated by the chef’s unrelated negligence.

[54]We find Mr Wright’s submissions compelling. He was, of course, at the trial – and so in a good position to speak to the issues that were there extant – but we consider it is clear from the transcript that we have seen that, whilst the Appellant undoubtedly blamed the waiter and the chef for Mr Wilson’s death, asserting that they were negligent in their taking the order and preparation of the meal, this arose in the context of the principal issue at trial, i.e. whether the Appellant was in breach of his duty of care. The Appellant’s case was that he had taken reasonable steps to avoid harming his customers with food allergies, and that the cause of death was an unrelated act of negligence of his staff. The argument that, if the Appellant was in breach of duty by failing to take reasonable steps that did not at least materially contribute to Mr Wilson’s death was never articulated.

[55]We do not consider Mr Webster’s note, when read as a whole, assists Mr Smith’s cause on this ground. The note emphasises, as was clearly so, that “The whole defence case was predicated on the basis that the [Appellant] had taken all reasonable steps”; and that it was not accepted that the Appellant was guilty of any breach of duty. The reference in the note to the chef – who, on what we have seen, may well have also been negligent in preparing the meal and sending it out marked “No nuts” – indicates that, in Mr Webster’s closing, he suggested that the chef should take “primary” (not sole) responsibility for the death. In any event, the suggestion that Mr Webster maintained the stance that the prosecution must prove legal causation as a distinct requirement from breach of duty is belied by his exchange with the judge during the discussion of directions before the summing-up, when he confirmed in terms that, if the jury concluded that there was a breach of duty, then there was no issue on causation. That was reflected in the judge’s directions, to which Mr Smith now seeks to take exception.

[56]Not taking legal causation as a separate argument appears to have been a deliberate choice by the Appellant through Mr Webster. In our view, it was not only a tactical choice that was reasonable – because an argument on causation would have been evidentially difficult, and inherently unattractive – it was wise. Mr Wright submits that, given the nature of the breach alleged, it was beyond sensible argument that, if the jury found the breach proved, that that breach made a more than minimal contribution to the death of Mr Wilson. We agree. The tactical decision not to pursue a distinct argument on legal causation was, in our view, all but inevitable.

[57]For those reasons, we do not find these grounds made good.

The Other Grounds

(i) )

[58]The standard of care owed by the Appellant to customers was to take such steps as were reasonable for a competent restauranteur to take in all the circumstances. Mr Smith submitted that the judge failed to direct the jury with regard to that standard, instead leaving the setting of the standard entirely to the jury, without reference to the measure to be adopted.

[59]The judge’s direction, of which complaint is made, was as follows: “Please note that the duty is not to take all conceivable steps to avoid the risk, the duty is to take all steps that in the circumstances are reasonable. Reasonable is an objective test, here it is not sufficient for the Defendant to simply say ‘the steps I took are reasonable’, it is for you the Jury setting the standards of the reasonably prudent members of the public to assess whether the steps taken, if any, were reasonable...”.

[60]We are unconvinced that there was any error in the summing up in this respect. The judge made it clear that the requisite standard was an objective one. Although he said that it was “for the jury setting the standards”, and he did so in the context of “reasonably prudent members of the public”, we consider that the jury would have fully understood that the test was objective, and reasonableness was to be based on the standards of a competent restauranteur. That is why they had expert evidence from Dr Chan, not only on “best practice”, but also what a competent restauranteur should do in respect of allergens.

[61]In any event, the real issue in the trial was not the standard, but whether the Appellant had taken any steps towards eliminating the risk posed by peanuts in his restaurant’s meals. We are confident that any error on the judge’s part was not material, in the sense of undermining in any way the safety of the verdict. Mr Smith did not, with any force, suggest otherwise.

Standard of Proof and Vicarious Liability (Grounds 4, 5 and 13)

[62]Having apparently concluded his summing up, the judge noted that he had not summarised the case of each party, as he said he would do. In summarising the prosecution case, the judge said this: “The staff carried on preparing food with nuts and they either being wholly negligent or they are lying to customers when they say that the meals being sent to them and prepared for them without nuts. Say the prosecution that was negligence, gross negligence, so negligent that you consider it to be criminal. He has lied about it and he has lied about it because he knew what he was doing was inadequate… His explanation that he could at all times simply delegate all responsibility in this respect to the managers does not even come close to dealing with reasonable steps or acting in due diligence… That is not good enough say the prosecution and therefore he has not proved that he acted with due diligence…”.

[63]Mr Smith submitted that the jury would have been left with the impression, just before retiring, that: i) The Appellant might be convicted on Count 7 (manslaughter) on the basis of the negligence of his employee(s). They should have been directed clearly that he could only be convicted of manslaughter on the basis of a personal breach of duty by the Appellant. Such a direction was the more important because, in relation to Counts 1 to 6, the judge had, properly, directed them that an employer cannot escape liability simply by reason of the fact that the act or omission complained of was carried out by his employees. ii) The Appellant bore the burden of proof with regard to due diligence, as he did in respect of Counts 1 to 6. In respect of those counts, the Appellant accepted that the underlying facts as set out in the particulars of offence were established, and that he therefore had the burden of establishing the statutory defence that he had taken “all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control” (section 21(1) of the Food Safety Act 1990). The jury should have been firmly directed that, in relation to the manslaughter charge, the burden of proof was upon the prosecution to show that the Appellant had not taken all reasonable steps in light of the relevant risk.

[64]However, the judge made clear that these were not directions from him, but the cases of respective parties. He had made clear, both in his written directions and earlier in his summing up, that the burden of proof on all elements of manslaughter lay upon the prosecution; and, as we have earlier described, he made clear that the breach of duty had to be that of the Appellant in person. We are again unconvinced that there was any error here; but in any event entirely confident that, if error there was, it was not material to the safety of the verdict.

Foreseeability and Risk of Death (Grounds 6 and 7)

[65]The Appellant accepted that he knew that customers with a peanut allergy were at risk of fatal consequences if they ingested peanut. Mr Smith submits that the judge erred in not directing the jury that the prosecution was required to prove that a reasonably prudent person would have foreseen an obvious and serious risk of death as a result of any proven breach of duty by the Appellant.

[66]We are afraid that we see no force or merit in this argument. It is trite law that liability for gross negligence manslaughter will only arise if there is objective foresight of a serious and obvious risk of death. The Appellant conceded that there was a serious and obvious risk of death. On the basis of the evidence, such a concession was inevitable. In any event, as Mr Wright submitted, it would have been remarkable if the Appellant had not so conceded, given that his entire defence was apparently predicated on the premise that there was a serious and obvious risk of death but he had taken all reasonable steps to guard against it. Mr Webster appears expressly to have conceded the point in his closing.

[67]As this was not in issue, the judge had no obligation to direct the jury in respect of it.

Lies (Grounds 11 and 12)

[68]It was the prosecution case that the Appellant was an inherently untruthful man, who regularly told lies when it suited him. The judge set out particular instances of alleged lies in his interview, for example about what happened following Mr Wilson’s death, about being present at the relevant restaurant when Ms Scott and Mr Wilson were served their meals, and about the change of nut powder supply. The judge gave the jury a standard Lucas direction (see Lucas

[1981] QB 720

at page 724).

[69]Mr Smith criticises this direction. He submits that, before a lie can provide support for a prosecution case, it must relate to a significant or material issue in the case. He submits that, in the context of Count 7, none of the alleged lies could have been probative of the objective elements of(i) breach of duty,

(ii) causation and

(iii) foresight of a serious risk of death.

[70]However, we disagree. The central issue in the trial was as to the instructions the Appellant said that he had given to his staff, and the precautions and systems the Appellant asserted he had verbally put into place, to protect his food allergic customers. The prosecution case was that he had put into place none, and his evidence that he had done so was confabulated. His credibility was very much in issue. The jury were entitled to assess his credibility against his record of lying, if and as the jury found it to be. In our judgment, the direction given with regard to the alleged lies to the police was entirely appropriate.

[71]Mr Smith also criticises the judge for including within the Lucas direction alleged lies by the Appellant from the witness box. However – in our view, correctly – he accepts that, insofar as that was an error on the judge’s part, it could not have any impact on the safety of the verdict.

Conviction: Conclusion

[72]For those reasons, we find none of the grounds of appeal against conviction made good.

[73]As Mr Smith, frankly and properly, conceded, the case against the Appellant was powerful. We consider it to have been overwhelming. Despite Mr Smith’s particularly able efforts, we are in no doubt that the conviction was and is safe.

Sentence

[74]In respect of sentence, Mr Laprell submitted that the six years imposed was manifestly excessive, particularly having regard to the Appellant’s good character and comparable levels of sentences imposed in other cases of gross negligence manslaughter.

[75]We accept that the Appellant, a man in his 50s, was a man of good character, not only in the sense that he had no previous convictions, but he was also devoted to his family. In his sentencing remarks, the judge referred to his business and family success over the 40 years the Appellant has been in the United Kingdom; and he expressly took that into account, together with the obvious effect that a prison sentence would have upon the Appellant and his family. However, the mitigation of the Appellant’s hard and successful work has necessarily to be discounted by the fact that his working practices were not short of appalling, and in any event any mitigation has to be balanced against aggravating factors.

[76]There were here substantial aggravating features, to which the judge also referred. He found and sentenced upon the basis that, as a result of a conscious and deliberate decision, the Appellant decided to change the nut powder to be used in his restaurants from almond to peanut, a decision, the judge found, “undoubtedly based on cost”. In doing so, the judge found, the Appellant decided to run the risk of customers with an allergy to peanut becoming ill, and even dying. The Appellant was well aware of the risk being run, because he knew that some people had a peanut allergy, and he knew the consequences of them ingesting peanut could be fatal. Nevertheless, he took no steps to prevent customers of his restaurants with an allergy being exposed to peanut, even when they made their allergy known.

[77]In early January 2014, Ms Scott was served a meal with peanut, despite telling the restaurant staff that it must be peanut free, and them confirming that it would be. The judge said, with some force, that either the staff were instructed to tell such customers that their meals would be peanut free, or, at least, the Appellant’s systems were so appallingly lax that they were able to tell customers that their meals would be free of peanut even when they were not. In the Appellant’s favour, the judge proceeded on the latter basis.

[78]Following the incident involving Ms Scott, the Appellant knew that the systems were continuing, but still he did nothing. On 23 January 2014, the Appellant’s restaurant gave Mrs Airton a meal with peanut, despite her requirement for no nuts; and the Appellant was warned. Still the same systems stayed in place. Even after Mr Wilson’s death, and even after the Appellant knew its cause, on the following day, another test purchase was made for a “no nut” meal, which contained sufficient peanut to cause an allergic individual a severe reaction. The judge concluded that the Appellant remained “in denial”; and was “completely and utterly indifferent at all stages to the health and lives of your customers”. In our view, the judge, having been the trial judge, was in the best position to assess the evidence he had heard; and was fully entitled to sentence on the basis that he did.

[79]This was not a transitory act of negligence, but negligent behaviour that persisted over months. That is, of course, reflected to a degree in the sentences imposed for the various breaches of the food hygiene regulations, which were made concurrent and therefore had to be reflected in the sentence for the manslaughter. The Appellant patently ignored the clearest specific warnings given to him as a result of Ms Scott’s illness, and by the Trading Standard Officers. Again as the judge observed, as a result of the Appellant’s negligence, in the event, there was a grim inevitability that someone at some stage would not only become very unwell but die. The culpability here was very high. The consequences were particularly serious.

[80]We were, I am afraid, singularly unimpressed by the argument based on the authorities. We appreciate that there is, at present, no sentencing guideline for gross negligence manslaughter; but it is an area in which the sentencing exercise is particularly fact-specific. Cases based on very different facts, in which sentences of the Crown Court have been upheld as not being manifestly excessive, are inevitably of little if any assistance. Suffice it to say that we do not consider the sentence in this case to be generally out of kilter with other cases.

[81]In our view, the Appellant’s negligence in this case was not just gross; his behaviour, driven by money, was appalling. Given the very serious aggravating factors, even though the Appellant was a man of good character, we are wholly unpersuaded that a sentence of six years after a trial was manifestly excessive or, indeed, excessive at all.

Conclusion

[82]The appeal in respect of both conviction and sentence is dismissed