Bah v Rex

Factual and Procedural Background

On 19 February 2024, the Appellant was convicted following a retrial before Judge Johnson and a jury at the Crown Court in The City of Canterbury of one offence under section 25(1) and (6) of the Immigration Act 1971 for facilitating a breach of UK immigration law by a non-UK national. Additionally, the Appellant was convicted of four counts of gross negligence manslaughter. The jury returned a unanimous verdict on the immigration offence and majority verdicts (10 to 2) on the manslaughter counts. On 23 February 2024, the Appellant was sentenced to a total of 9 years and 6 months' detention, with concurrent sentences for the manslaughter counts and a concurrent sentence of 4 years for the immigration offence.

The Appellant, aged 20 at the time of conviction, had travelled from Senegal intending to claim asylum in the UK. He journeyed by boat from Libya to Italy and then stayed near Dunkirk in a migrant camp known as "The Jungle" for approximately three months awaiting the chance to cross the Channel. The Appellant had prior experience handling boats and assisted in piloting the boat from Libya to Italy. Traffickers in "The Jungle" area charged large sums for passage across the Channel in small boats to claim asylum in the UK.

The Appellant lacked funds to pay for the crossing but was offered free passage for himself and a friend if he agreed to steer the boat. Approximately 45 asylum seekers were to undertake the crossing in an inflatable boat provided by armed traffickers who threatened and assaulted migrants. Despite expressing concerns over the boat's construction and the number of passengers, the Appellant was pressured verbally and physically to steer the boat.

The boat departed around 00:30 on 14 December 2022. Initially, the journey proceeded smoothly, but water began to enter the boat after 45 minutes to an hour, causing panic among passengers. The Appellant steered the boat toward a nearby fishing vessel engaged in scallop dredging. The boat’s floor broke due to passengers standing, causing it to collapse and trap some passengers. Rescue efforts by the fishing vessel crew saved many, but at least four passengers died. Survivors claimed asylum in Dover.

Expert evidence from a powerboat instructor established that the Appellant was the skipper responsible for the safety of the vessel and passengers. The boat was unsafe, ill-equipped, and unsuitable for the Channel crossing, a busy and heavily regulated shipping lane. The risks of death were evident to most people, including the passengers who voluntarily participated in the crossing despite the dangers.

The Appellant claimed duress due to traffickers' pressure, but the jury rejected this defence and found him guilty of gross negligence manslaughter by majority verdict.

The Appellant applied for leave to appeal against conviction and sentence, and the applications were referred to the Full Court by the Registrar.

Legal Issues Presented

1. Whether there was a jury irregularity that prevented the Appellant from having a fair trial.
2. Whether the trial judge erred in rejecting the submission of no case to answer in relation to the manslaughter counts based on causation.
3. Whether the trial judge erred in failing to direct the jury that the deceased's voluntary choice to risk death by joining the crossing was relevant to the causation issue.
4. Whether the sentencing was appropriate, including the assessment of harm, culpability, and application of totality principles.

Arguments of the Parties

Appellant's Arguments

• Ground 1: Alleged jury irregularity involving a juror discussing the case with colleagues outside the trial, potentially breaching instructions and affecting trial fairness.
• Ground 2: Submission of no case to answer on manslaughter counts due to lack of causation; argued that the voluntary actions of the deceased in boarding the boat broke the chain of causation.
• Ground 3: The jury should have been directed that the deceased's voluntary choice to risk death was relevant to causation; counsel should have been allowed to make submissions on this point.
• Sentencing: The judge erred by categorising harm as high rather than more than minimal, leading to an excessive starting point; the Appellant's role was lesser and subordinate, warranting medium rather than high culpability; inadequate reduction for youth and mitigation; and an excessive overall sentence violating totality principles.

Prosecution's Arguments

• The jury irregularity complaint was unsubstantiated, with no evidence of irregularity affecting the verdict; no action was taken after investigation.
• Kennedy and Rebelo cases were distinguishable; this case involved gross negligence manslaughter with the Appellant steering the boat causing deaths during the ongoing act, unlike the separate voluntary acts breaking causation in those cases.
• The deceased and Appellant were acting in concert in a common criminal enterprise, negating any break in the chain of causation from the deceased’s voluntary boarding.
• The sentencing was appropriate, correctly applying harm and culpability principles, properly considering mitigation including youth, and respecting totality.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269	Voluntary, informed acts by a victim may break the chain of causation in unlawful act manslaughter; distinction between acting in concert and acting separately.	Distinguished on facts; Kennedy involved unlawful act manslaughter and no joint concerted action; court held deceased acted independently, breaking causation.
R v Rebelo (No 1) [2019] EWCA Crim 633; R v Rebelo (No 2) [2021] EWCA Crim 306; [2021] 4 WLR 52	Consideration of causation and voluntary acts in gross negligence manslaughter; jury directions on causation and voluntary decisions by deceased.	Distinguished; in Rebelo, deceased’s voluntary act broke causation; court rejected additional "eclipse" test; directions in present case were adequate.
R v Wacker [2002] EWCA Crim 1944; [2003] QB 1207	Existence of duty of care in criminal law despite joint criminal enterprise; public policy supports criminal liability even where civil law denies claim.	Applied; duty of care existed despite criminal enterprise; Appellant owed duty as skipper to passengers despite their voluntary involvement.
R v Broughton [2020] EWCA Crim 1093; [2021] 1 WLR 543	Elements required for gross negligence manslaughter, including duty of care, breach, risk of death, causation, and exceptional culpability.	Applied; court reiterated these elements and emphasised causation as significant contribution to death.
R v Galbraith [1981] 1 WLR 1039	Test for no case to answer; whether evidence could properly support a conviction.	Applied; court rejected submission of no case to answer based on causation after analysis of evidence.
R v Wallace (Berlinah) [2018] EWCA Crim 690; [2018] 2 Cr App R 22	General observations on causation in criminal law; distinction between factual and legal causation; effect of voluntary acts by third parties.	Referenced to clarify causation principles relevant to the case.
R v Brown (Anthony) [1994] 1 AC 212	Criminal law’s overriding duty to prevent serious injury or death, denying consent as a defence in certain contexts.	Referenced in support of criminal law’s public policy considerations overriding joint criminal enterprise arguments.
Saunders v Edwards [1987] 1 WLR 1116	Explanation of ex turpi causa in civil law and distinction from criminal law public policy.	Used to distinguish civil and criminal approaches to duty of care and liability in criminal enterprise contexts.
R v Baybasin [2013] EWCA Crim 2357	Cautious approach to ordering disclosure and investigations in appeals involving jury irregularity.	Applied to reject ordering disclosure or investigation into alleged jury misconduct absent strong evidence.
R v Ahmed [2023] EWCA Crim 1521; [2024] 1 WLR 1271	Guidance on sentencing for offences under section 25 Immigration Act 1971 including harm categorisation and culpability.	Applied in sentencing; court upheld judge’s assessment of harm as high and appropriate sentencing range.
R v Field [2021] EWCA Crim 380	Context-specific considerations of causation in gross negligence manslaughter involving voluntary acts.	Referenced to illustrate fact-specific nature of causation assessments.

Court's Reasoning and Analysis

The court carefully analysed the issue of causation, a central element in gross negligence manslaughter, focusing on whether the Appellant's actions legally caused the deaths of the deceased. The court distinguished this case from precedent cases where voluntary acts by the deceased broke the chain of causation (Kennedy and Rebelo), emphasising that in the present case the Appellant and the deceased were acting in concert in a common criminal enterprise to breach UK immigration law.

The court accepted that the Appellant owed a duty of care as the skipper responsible for the safety of the boat and passengers, despite the passengers' voluntary participation in the crossing. It relied on the authority of R v Wacker to confirm that criminal liability and duty of care persist even within criminal enterprises.

The court rejected the Appellant’s submission of no case to answer on causation grounds, holding that the voluntary boarding of the boat by the deceased did not break the chain of causation because they were acting in concert with the Appellant. The court further held that the judge correctly directed the jury that the deceased’s voluntary choice to make the journey was not a defence and that inviting the jury to consider this as breaking causation would have been a misdirection.

Regarding the alleged jury irregularity, the court found no evidence that the irregularity affected the safety of the conviction, noting the timing of the complaint, anonymity of the complainant, and lack of any juror concerns during trial. The court declined to order disclosure or further investigation.

On sentencing, the court upheld the judge’s approach, finding that the harm was properly categorised as high due to the dangerous vessel and risk to many individuals. The court accepted the judge’s assessment of culpability as high but towards the lower end, reflecting the Appellant’s lesser role relative to traffickers. The court found no error in the judge’s mitigation considerations, including youth, nor in the application of totality principles to reach the overall sentence.

Holding and Implications

The court REFUSED LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE.

The court held that Grounds 2 and 3 concerning causation and jury directions were unarguable, as was Ground 1 on jury irregularity. The sentencing grounds were also rejected as lacking merit. The direct effect is that the Appellant’s convictions and sentences stand. No new legal precedent was established; rather, the court applied established principles with careful factual distinction and reaffirmed the importance of causation and duty of care in the context of criminal enterprises involving gross negligence manslaughter.