28/11/2017
R v Mohammed Khalique Zaman
The Court of Appeal has upheld a six-year prison sentence handed down against a restaurant owner who had persistently failed over several months to take steps to ensure that customers suffering from peanut allergies were not served with food containing peanuts.
The case of R v Mohammed Khalique Zaman [2017] EWCA Crim 1783 illustrates how diligent restaurant owners must be when it comes to allergen control. It discusses what constitutes ‘reasonable steps’ when it comes to discharging a duty of care and how sentencing will be decided under the Definitive Guidelines on Health and Safety, Corporate Manslaughter and Food Safety and Hygiene Offences.
A tragic death
Paul Wilson was found dead in his home in North Yorkshire on 30th January 2014. He had spent the afternoon drinking with a friend before purchasing a takeaway meal from the Indian Garden Restaurant, Easingwold, which he took home and started to eat. Mr Wilson had a severe allergy to peanuts. Upon purchasing the takeaway, the waiter stated that the food was nut-free. Unfortunately, the sauce contained substantial amounts of peanut, ingestion of which caused Mr Wilson anaphylactic shock, which killed him.
Mr Wilson had been diagnosed with a peanut allergy at seven and knew how severe it was. Even being near a peanut could trigger a reaction. He therefore took no chances, always confirming when ordering any food from a restaurant or takeaway that the dish was free of nuts.
The Appellant was a highly experienced restaurateur, owning five restaurants in York and North Yorkshire including the Indian Garden, Easingwold. He did not work in the kitchen, and his role was purely managerial.
There was evidence that at the time leading up to the incident, the appellant’s business was in financial difficulty.
The restaurant’s ingredients supplier gave evidence to the court that the appellant started ordering mixed nut powder which was half the price of the almond powder, shortly before Mr Wilson’s death. The mixed nut powder comprised of mainly peanuts.
The supplier warned the appellant he would have to start advertising that his menu was not peanut-free.
Week’s before Mr Wilson died, another customer, who had been assured her meal did not contain peanuts, experienced a violent allergic reaction. The appellant stated that he immediately contacted the supplier after this incident and asked for the almond powder order to be reinstated. This was denied by the supplier in court.
Following that incident, trading standards officers visited the appellant’s restaurants. Levels of peanut sufficient to cause severe allergic reactions in predisposed individuals were found in test purchases that it had been claimed contained no nuts and in tubs marked "groundnut", "coconut", "sugar", and "nut powder". Following Mr Wilson’s death, the officers further advised the appellant in writing of what he needed to do to establish allergen control.
At trial, the appellant accepted that he had a duty of care to provide food that was not harmful to those who made clear they had a food allergy, and that he was aware of the risks posed by allergens and that exposure could cause death. He argued he had taken reasonable steps, and blamed his staff for failing to comply with their training and his strict instructions on how to deal with customers who had an allergy.
However, the trial judge held that the appellant had made a conscious and deliberate choice to switch to the cheaper mixed nut powder to slash costs, despite being well aware of the risks his actions posed.
The Court of Appeal’s decision
When assessing the directions given to the jury regarding breach of duty, the Court of Appeal observed that the trial judge correctly stated the prosecution’s case was based on a single alleged breach of duty – namely that the appellant had failed to take reasonable steps to avoid injury to customers with declared allergies.
The jury was then directed by the trial judge that it was obliged in such cases to consider what steps the appellant had taken to avoid the risk of harm to Mr Wilson. This should be based on the evidence and, once the steps had been established, the jury was required to consider whether they were reasonable.
The Court of Appeal then went on to consider the sentence. It found the appellant’s negligent behavior persisted over many months and he had ignored warnings given out by the trading standards officers. In addition, he made no changes to his practices after the first customer had fallen ill from consuming peanuts. The court went on to state that gross negligence manslaughter was an area in which the sentencing exercise was particularly focused on the facts of the case. The sentence of six years' imprisonment was not out of line with other cases as “[because] 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.
Comment
This case shows how important it is for all food businesses to be vigilant in ensuring they are clear about allergen risks. Staff should be fully trained on how to deal with customers who have allergies, and a risk management system should be put in place to ensure there is no miscommunication between the waiting staff and the kitchen during busy periods. If possible, a senior member of staff should deal with customers who have alerted them to an allergy.
The court also made clear that deliberately risking the health and safety of customers to cut costs could result in a finding of gross negligence manslaughter and a harsh penal sentence.
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