Unlawful Act Manslaughter or Gross Negligence Manslaughter?

On 29th November a jury sitting at Stafford Crown Court (Calver J) acquitted the defendant of unlawful act manslaughter and convicted him of gross negligence manslaughter.

RICHARD BARRACLOUGH KC was instructed by West Midlands CPS and led Robert Price for the prosecution.

The defendant (Mark Clowes) and the deceased lived together. It was a loving relationship. Both were alcoholics. The deceased binge drank. The Crown alleged that following a bout of drinking and after her soiling herself the defendant pushed her into a bath of scalding water. The immersion had been set at 82 degrees many years before. When paramedics arrived, they found the deceased with scald marks on her body and piles of skin on the floor.

The fact that the deceased was utterly incapable and vulnerable and entirely under his control placed a duty on him to take care at least when putting her into the bath and he did not do so. Pushing her into a scalding bath at a temperature equivalent to a kettle of boiling water created an obvious and serious risk of death. The opinion was that to immerse someone with BELL’s vulnerabilities into a bath with water at a temperature of 82 degrees presents an obvious and serious risk of death. At 80 degrees the burning would start in under a second. Progression to a deep burn would happen very quickly.

Evidence was called from two pathologists, two toxicologists, a pharmacologist and a burns specialist.

The primary cause of death was alcoholic ketoacidosis on a background of scald injury and alcoholic liver disease. The loss of the integrity of the skin by reason of the burns would increase the deceased’s metabolic requirements. It added to her physiological burden. The scald would have played an important role in her death.

Following the decision in REBELO 2021 2Cr. App. R3, the indictment contained one count particularising the two limbs of manslaughter. Whilst it is possible to convict both of unlawful act and gross negligence manslaughter, the view was taken that the jury should first consider unlawful act manslaughter based on an allegation of assault when the defendant pushed her into the bath. If the jury convicted of unlawful act manslaughter, then they should proceed no further. If they acquitted of unlawful act manslaughter, they should go on to consider gross negligence manslaughter. Thus, the jury were able to acquit of the one but convict of the other. This avoided having to take a special verdict although it deprived the jury of convicting on both limbs.

In the right case it would be possible to ask them to return a verdict on both unlawful act and gross negligence manslaughter within the one count.

On 20th January 2024 Richard Barraclough KC delivered a presentation entitled. Consequently Richard was invited to become a member of the Royal Society of Medicine.

“R v Rebelo: The complexities and ramifications of the case”

The seminar took place at the Royal Society of Medicine conference “legal and forensic conundrums in complex high profile homicide”. The presentation provided an analysis of unlawful act and gross negligence manslaughter after Rebelo placed an unsafe food namely the toxic chemical DNP used as a slimming agent, on the market for human consumption and the two Court of Appeal judgements.

The following is taken from an article in Counsel Magazine written by Dr Felicity Gerry KC and Dr Oliver Quick KC

The complexities in food cases were recently highlighted in R v Rebelo (No1) [2019] EWCA Crim 633, followed by R v Rebelo (No2) [2021] EWCA Crim 306. Those appeals from the trial and retrial related to the supply (by post) of diet pills in capsule form made from an industrial chemical. The indictment alleged a food regulatory offence and both unlawful and dangerous act manslaughter (UDAM) and gross negligence manslaughter (GNM). The evidence was that the appellant supplied the capsules by post following an online order from the deceased. The chemical was not combustible so was not dangerous per se, but experts gave evidence that it was unpredictable and thus dangerous, if ingested. Experts also gave evidence that the deceased was vulnerable as someone suffering from an eating disorder from her medical notes, and that she lacked capacity to make sensible decisions about her eating. Her computer records showed that she had done considerable research, knew exactly what she was taking and that she was highly intelligent so appeared to understand the risks. Text messages tragically recorded her dying communications suggesting she had taken an erroneous dose.

Put shortly, the Court of Appeal in Rebelo (No 1) accepted that posting such an item (unlike throwing concrete from a bridge – see DPP v Newbury [1977] AC 500) is not UDAM that caused her death. The failure to comply with a food regulation was not sufficient. The Court of Appeal, led by Leveson P, rejected the prosecution’s suggestion that causation was proved if the deceased lacked capacity and accepted defence submissions to apply the classic definition of autonomy – whether she was ‘free, informed and deliberate’ such that the ‘chain of causation’ from the supplier was broken. This was explained and reaffirmed in Rebelo (No2) with Dame Victoria Sharp P now in the Chair, following Sir Brian Leveson’s retirement. Mr Rebelo was convicted at retrial of GNM and his subsequent appeal was dismissed.

This does not end the complexities in food safety cases: R v Kuddus [2019] EWCA Crim 837 (Simon Myerson KC defended Mr Kuddus) involved a restaurant owner and chef who prepared a meal containing peanut proteins for a girl who identified this allergy on the takeaway order. In both Rose and Kuddus, the Court of Appeal concluded that neither defendant knew about circumstances which made the risk of death serious and obvious – even though they should have known. This poses a key question – is gross negligence an objective or subjective form of fault? In theory it is supposed to be objective – after all, that is the whole point of negligence liability. In reality, of course, the common law has created something of a hybrid model with recklessness in play in terms of assessing gross negligence. Rose and Kuddus are clear examples where absence of recklessness remains critical. Ultimately, the reasonably foreseeable serious and obvious risk of death (to someone in the defendant’s position) really does dilute the objective nature of gross negligence.

Read the full article here ‘The gross nebulous legal void in medical, drug and food related deaths’

Richard Barraclough KC is a recognised expert in jury trials and has been involved in a series of high profile murder and manslaughter cases. For more information please contact his clerk, Jayne Drake