R v Bah - Causation in Gross Negligence Manslaughter.

Summary

In February 2024, Ibrahima Bah was unanimously convicted of a single offence of doing an act to facilitate the commission of a breach of UK immigration law by a non-UK national, and four counts of gross negligence manslaughter by a 10 to 2 majority, following an unsuccessful submission of no case to answer and the jury having rejected the defence of duress. The court had also heard expert evidence from the Royal Yachting Association regarding prevailing conditions in the Channel and the duties of small boat skippers. Mr Bah was sentenced to a total of 9 years 6 months’ detention. He then sought, unsuccessfully, to appeal against both conviction and sentence – full citation R v Ibrahima Bah [2024] EWCA Crim 1499.

In December 2024, the Court of Appeal considered causation in gross negligence manslaughter in cases involving the skippers of small boats, who may themselves be seeking asylum in the UK. The following key principles arise:

• Where the deceased is acting in concert with the defendant, and thereby freely and voluntarily accepts the risk of death, that does not negative a legal causal link. In this case, the fact that the passengers had chosen to board the boat to make the Channel crossing and were acting in concert with Mr Bah, skippering the boat, did not establish a break in the chain of causation.
• The condition of the boat and number of passengers are relevant to categorisation of harm. In this case, the boat was in a particularly poor condition creating a high risk of injury or death.

Facts

Mr Bah was aged 20 at the time of conviction. He had himself come to the UK from Senegal via Libya, Italy and the Calais Jungle before crossing the channel in a small boat, with the intention of claiming asylum. He had some experience of boat handling having been involved with fishing boats in his home country. Mr Bah was not asked to pay for his passage across the Channel; he was offered free passage on the condition that he would steer the boat. When Mr Bah saw the boat he raised concerns about its condition, but was pressured to make the crossing that evening.

About an hour into the crossing, the boat was taking on so much water that he sought help from a nearby fishing vessel, but the passengers panicked, and the boat collapsed in on itself, trapping some passengers. It was later discovered that four of the passengers had died and these deaths were the subject of the gross negligence manslaughter counts.

Appeal against conviction

In appealing his conviction, the Defendant argued grounds relating to a jury irregularity, an unsuccessful submission of no case to answer relating to causation, and failure to direct the jury in relation to voluntary choice and causation.

The six elements of causation required in the context of gross negligence manslaughter were made clear in R v Broughton [2020] EWCA Crim 1093; [2021] 1 WLR 543 at [5]:

1. The defendant owed an existing duty of case to the victim.
2. The defendant negligently breached that duty of care.
3. At the time of the breach there was a serious (more than minimal or remote) and obvious (present, clear and unambiguous) risk of death.
4. It was reasonably foreseeable at the time of the breach of the duty that the breach gave rise to a serious and obvious risk of death.
5. The breach of the duty caused/made a significant or more than minimal contribution to the death of the victim.
6. In the view of the jury, the circumstances of the breach were truly exceptionally bad and so reprehensible that it amounted to gross negligence and required criminal sanction.

The submission of no case to answer was made on the basis that causation could not be proved, since the chain of causation was broken by the voluntary actions of the deceased in exercising their free will and choosing to board the boat and embark on the crossing. There was a detailed consideration of the law relating to causation, which is also set out at paragraphs 15 to 26 of the appeal judgment. The trial judge rejected the submission, finding that

“where the deceased is acting in concert with the defendant, and thereby freely and voluntarily accepts the risk of death, that does not negative a legal causal link […] here the defendant and the deceased were acting in concert, and that means that the chain of causation is not broken”.

The Court of Appeal agreed, finding “We cannot identify a proper basis upon which it could be said that the chain of causation in this case was broken. Whilst the applicant and deceased were not joint offenders, they were undoubtedly acting in concert in the same, single episode which ended in the deaths. The voluntary boarding of the boat accompanied the applicant’s piloting of the boat, giving rise to his duty of case to the passengers. From that point on, there was no separate, voluntary act by any of the deceased that could be said to have broken the chain of causation. There was no interference with or interruption of the link between the applicant’s breach of duty and each death.” [37].

The Court confirmed that it is not necessary for the parties to be engaged in a joint enterprise or joint participating in a criminal offence in order to be acting in concert; the principle is far broader [39].

In relation to jury directions, Mr Bah argued that notwithstanding the rejection of the submission of no case to answer, the jury should have been directed that the deceased’s voluntary choice to risk death by joining the crossing was relevant to the question of causation. The judge had directed that jury that it “is not a defence that the victims freely and voluntarily made the journey.” [43]. Again, the Court of Appeal rejected this ground because the fact that the deceased had volunteered to join the boat could not establish a break in the chain of causation and so any evidence and/or submissions to that effect were thus irrelevant to causation [44].

The ground relating to a jury irregularity also failed; this related to an anonymous email about juror conduct sent after verdicts had been received, and with respect to which the Attorney General took no further action.

Appeal against sentence

The appeal against sentence was also unsuccessful, Mr Bah having submitted that the sentencing judge was wrong to find that this was a case where there was a high degree of harm (for the purposes of count 1), and that the gross negligence manslaughter charges should have been deemed lower culpability because he was only playing a lesser or subordinate role in the offending compared to the organisers.

The case of R v Ahmed [2023] EWCA Crim 1521; [2024] 1 WLR 1271 provided guidance in relation to the correct approach to sentencing small boat cases at paragraphs 19-20. In particular, paragraph 19 of Ahmed makes clear that

“the highest category of harm will be reserved for cases where the small boat or boats used involved a high risk of serious injury or death and/or where the offender assisted large numbers or individuals to arrive unlawfully in the UK. The former factor will bite where the boat concerned was particularly unsuitable for the purpose to which it is being put.”

In Mr Bah’s case, the boat had approximately 45 passengers and “was not a reasonably safe, seaworthy vessel, it was about as dangerous and inadequate as it is possible to imagine”, justifying the higher category [56].