DEATH BY DIET PILL: PRODUCT LIABILITY INVESTIGATION AND CAUSATION

By Dr Felicity Gerry KC?

At the International Bar Association Conference this week there was a fascinating panel from our Criminal Law Committee on product liability and Criminal Law. Much of the discussion centred on advising corporate clients as to police cooperation and decisions on ceasing production but, after a question from me, it became clear that investigations into food related deaths may not always include consumer decision- making. This is a concern, especially when disclosure about the deceased may be dependent on a police approach . It is worth understanding that in investigations for food supply, including the supply of substances contrary to food regulations, causation in gross negligence manslaughter may well turn on the autonomy of the consumer. ?

In R v Rebelo (No1) [2019] EWCA Crim 633, in which I led for the defence and which was reaffirmed in R v Rebelo (No2) [2021] EWCA Crim 306, appeals from the trial and retrial related to the supply of diet pills in capsule form made from an industrial chemical. The indictment alleged a food regulatory offence and both unlawful act manslaughter and gross negligence manslaughter for the same death. 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. Interestingly, evidence from internet fora, used as evidence of knowledge against the defendant, also revealed the level of usage amongst large numbers of the community, especially in body building for ‘last minute’ fat drainage. Evidence from such fora may be relevant in future cases where consumption of a product is an issue.

Experts also gave evidence that the deceased was suffering from an eating disorder and that she lacked “capacity” to make sensible decisions about her eating. Computer records showed that she had she had done considerable research, knew 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, insofar as dosage can be gleaned from an unsafe product.?

The Court of Appeal of England and Wales in Rebelo (No 1) accepted that posting such an item is not an “unlawful and dangerous act” and quashed one count of manslaughter. On the remaining count of gross negligence manslaughter (concerning the same death), it was held that the failure to comply with a food regulation was not sufficient to prove liability and that lack of capacity of the deceased is not the test, accepting our submissions to apply the classic definition of autonomy – to ask the jury to be sure that a substantial and operative cause of death was by the gross negligence of the supplier rather than it was or may have been caused by a ‘free, informed and deliberate’ act by the deceased such that the ‘chain of causation’ from the supplier was broken.

The bar for establishing causation has been discussed in other more recent cases on illicit drug supply but in Rebelo (No1) the Court of Appeal sought to assist the lower courts with a potential formulation as follows:?

"Thus, the jury had to be directed, first, that the defendant must owe the victim an existing duty of care which, secondly, has negligently been breached in circumstances, thirdly, that were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction. Fourth, the breach of that duty must be a substantial and operative cause of death, although not necessarily the sole cause of death. This last ingredient required further analysis which, without seeking to provide a definitive definition, could have been put to the jury in this way:?In relation to the question of causation, the prosecution must make you sure that the victim did not make a fully free, voluntary, and informed decision to risk death by taking the quantity of drug that she ingested. If she did make such a decision, or may have done so, her death flows from her decision and defendant only set the scene for her to make that decision. In those circumstances, he is not guilty of gross negligence manslaughter.?What does a fully informed and voluntary decision mean? Whether a decision is informed and voluntary will often be a question of degree.

In Rebelo (No2) the Court of Appeal held that it had to be borne in mind that what was said by the Court of Appeal in Rebelo (No1) was suggestive only of the sort of judicial direction that might be given; that it was not intended to be prescriptive.

The breach of duty has to be a substantial and operative cause of death and the breach of duty would not be a cause of death if the deceased had or might have made a fully free, voluntary and informed decision... “fully free, voluntary and informed” meant the consumers “ability to assess the risk and understand the consequences relating to the toxicity of the substance and her appreciation of the risk to her health”. What is now required at trial is to decide whether the prosecution has proved that a breach of duty of care was a substantial and operative cause of death, even if it was not the sole such cause.

Accordingly, as part of the necessary reasoning, only if the deceased’s decision to take the capsules was a fully free, voluntary and informed decision, or might have been, would the death, as a matter of law, have been caused by consumer free choice because in those circumstances the food supplier had only "set the scene" for that decision, but the supplier would not have caused her death.?

The result is that investigations (whether by the police or those assessing their liability for product supply) must consider this connection between liability and the actions of the consumer. In Rebelo (No1) those actions were recorded on the disclosed hard drive of the deceased’s computer and were largely identified from data searches by junior counsel checking disclosure using the description of the chemical. It could easily have been missed or not disclosed so the case is a lesson for all food death related investigations. ?

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