Alex RKR v Rebelo [2021] EWCA Crim 306 is a very unusual criminal case, posing essentially existential questions as to the interrelationship between capacity and autonomy. Mr Rebelo ran a business selling a chemical, DNP, as a food supplement which was claimed to promote weight loss. On 4 April 2015, a 21-year-old student, Eloise Aimee Parry, purchased a quantity of DNP capsules from the appellant’s business via the internet. On 12 April 2015, after taking eight of the capsules, tragically, she died. DNP was not licensed as a medicinal drug, and ingestion by a human is to be regarded as hazardous and its toxic effects various and serious, including, inter alia, kidney failure, liver failure and cardiac arrest.
Ms Parry was a woman with a complex mental health history. When she encountered the DNP on Mr Rebelo’s website, she described (in emails and messages to university friends) what she had taken and how she could not control her use of DNP. Despite appreciating that DNP was causing her harm, she continued to order further supplies from the appellant’s business. She was repeatedly warned by her GP, social worker and friends of the danger from taking DNP, including the potentially fatal consequences. On 10 April 2015 a friend of Ms Parry, warned her that she was going to die if she did not stop taking DNP to which Ms Parry replied: “I wish I wouldn’t too but the psychological desperation to take the pills is so hard to fight. They make everything feel okay. They give me control. Which I know is delusional but I feel it so overwhelmingly!“
At trial, the prosecution case was that the supply of these tablets for human consumption constituted an unlawful act which was dangerous and led to death (unlawful act manslaughter); it also constituted a gross breach of the duty of care owed to Ms Parry, crossing the criminal threshold, in circumstances which created an obvious and serious risk of death (gross negligence manslaughter).
Mr Rebelo’s defence was that, whilst he accepted placing DNP on the market, he did not so do with the intent or reasonable expectation alleged by the prosecution. Rather, he contended that:
Ms Parry was an autonomous woman who decided to make a foolish decision in the exercise of her free will and killed herself, as she was entitled to do. The appellant’s act of placing DNP on the market was too remote. Putting DNP on to the market did not cause her death and he bore no responsibility for Ms Parry ingesting it. It was not possible for him to have foreseen the possibility that she would take a handful of the capsules.
In 2018 Mr Rebelo was convicted of both unlawful act manslaughter and gross negligence manslaughter, together with the offence of placing an unsafe food on the market contrary to Article 14 of Regulation (EC) 178/2002 and Regulation 19 of the Food Safety and Hygiene (England) Regulations 2017. He appealed against his manslaughter convictions. In April 2019, the Court of Appeal quashed the conviction for unlawful act manslaughter because it concluded, by analogy with the approach taken to the supply of heroin in R v Kennedy (No 2) [2007] UKHL 38, that placing unsafe food on the market, of itself, was not a dangerous act; and that to place DNP on the market could not, therefore, amount to a dangerous act sufficient to amount to an unlawful act for the purposes of unlawful act manslaughter. The Court of Appeal rejected the submission that the trial judge ought to have acceded to a submission of ‘no case to answer’ in respect of gross negligence manslaughter. In that connection, the appellant had argued that there was insufficient evidence that DNP created an obvious and serious risk of death, the only risk being when there was an overdose; alternatively, because there was “a break in the chain of causation as a consequence of the voluntary (that is to say free, informed and deliberate) act of the deceased herself.” In rejecting that submission, the Court of Appeal said, that there was “clearly enough material to justify leaving the issue of serious and obvious risk of death to the jury.” The conviction for gross negligence manslaughter was quashed, however, because the Court of Appeal concluded that the direction given by the judge to the jury on the issue of causation was defective:
74. In that part of the route to verdict dealing with autonomy the judge asked whether the prosecution had proved that Eloise Parry lacked capacity or was vulnerable and unable to exercise her free will when making the decision to take DNP. The reference to capacity came from the evidence of Dr Rogers applying the criteria set out in s. 3 of the Mental Capacity Act 2005. Thus, the question posed in the route to verdict in relation to gross negligence manslaughter did not reflect sufficiently clearly the issue that arose which was not merely whether it was notso unreasonable that it eclipsed the defendant’s acts or omissions but which also depended on whether Eloise Parry’s decision to take DNP may have been free, deliberate and informed decision, as Ms Gerry argued. Her capacity would be relevant to that issue.
75. In that regard, it is important to underline that capacity is not the same as autonomy. To direct the jury that provable lack of capacity as defined in the 2005 Act would be sufficient to demonstrate lack of autonomy was a misdirection particularly given the emphasis thereafter placed on the evidence of Dr Rogers. The second limb of the direction – the reference to Eloise Parry being ‘vulnerable and unable to exercise her free will’ – failed to assist the jury with what was meant in that context by the word vulnerable and how it interacted with any exercise of free will. Admittedly the judge was only using the term adopted in Kennedy (No 2). But in that case the issue of capacity did not arise on the facts and there was no suggestion that the victim was suffering from a mental disorder that might deprive him of capacity. Further, the use of the word vulnerable was not discussed further. The direction should have required the jury to consider only the question of Eloise Parry’s free, deliberate and informed decision.
Mr Rebelo was retried in February 2020. His case, again, was that “Ms Parry was an adult woman suffering from an emotionally unstable personality disorder and an eating disorder who made a fully free, voluntary and informed decision to take the DNP; she was not acting under any compulsion, nor was she vulnerable to feeling compelled. She was someone who wanted to take the DNP and so did. She was a bright and able university student who had conducted internet research and was well informed about the risks of DNP.” He did not give evidence, his sole witness being Dr Richard Latham, a consultant psychiatrist. His evidence was given “back to back” with that of the prosecution experts. Dr Latham said that, in his opinion, there was insufficient evidence to displace the presumption under section 23 of the Mental Health Act,[1] that Ms Parry had capacity. At paragraph 22, his evidence is recorded as follows:
In his opinion, Ms Parry’s mental health issues influenced the way in which she made decisions, but she retained capacity. He explained that, where capacity is an issue, people can fluctuate from hour to hour. In the present case, Ms Parry was capable of understanding the information on DNP. When she took DNP for the last time, she was repeating something that she had done on previous occasions. However, Dr Latham also said:
The decision every time she took DNP; that was likely to be because of the cycle of behaviour associated with her mental disorder. She was bingeing, purging and using DNP. These were compensatory behaviours. I don’t believe you could ever describe the situation of her taking DNP as fully free because this was part of her disorder and was driven by the symptoms of her disorder. Similarly with voluntariness, I do believe that her mental symptoms meant that her decision was not fully voluntary. The mental symptoms that she had; they do have an impact on her ability to resist the compulsion, so whilst I said before there is still likely to have been some degree of choice … that choice was very significantly impaired by her mental disorder.
After this evidence, the appellant apparently lost confidence in his legal team and dispensed with their services. A newly instructed legal team sought an adjournment to prepare but were only granted a short time so as not to derail the trial. They also sought permission for an adjournment to accommodate the holiday commitments of a new expert as to Ms Parry’s capacity, which the judge refused on the basis that, in effect, it was very unlikely that the expert would add anything.
The judge gave written directions to the jury on causation, as follows, the material parts of which are as follows:
21. In relation to the question of causation, the Prosecution must make you sure that Eloise Parry did not make a fully free, voluntary and informed decision to risk death by taking the 8 tablets of DNP on the morning of 12 April 2015: this is the ‘decision’ you must think about. If this was a fully free, voluntary and informed decision, or may have been, that means that as a matter of law, her death was caused by her free choice, because in those circumstances, the Defendant only set the scene for her to make that decision, but he did not cause her death.
22. What does a fully free, voluntary and informed decision mean? Lawyers sometimes refer to a person’s ability to make a fully free, voluntary and informed decision as ‘autonomy’. Whether a decision is fully free, voluntary and informed will be a matter of degree. It will be for you to judge whether all the relevant factors in this case, including her eating disorder and her mental health generally, were such that you can be sure that her decision to take the DNP was not fully free, voluntary and informed, as the Prosecution alleges.
23. It is important that you look at each element separately although there is likely to be some overlap between ‘fully free’ and ‘voluntary’.
24. You will appreciate that a state of mind may fluctuate and just because some decisions Eloise Parry made at some times in her life may not seem to be fully free, voluntary and informed, it could still be the case that when she made the decision to take DNP on 12 April 2015, that decision was fully free, voluntary and informed. It is that decision you must think about.
25. When considering whether it was ‘fully free’ you will want to consider in particular the effect of any mental health condition. In ordinary language, you might talk about someone being vulnerable because of their mental health issues. This might include, as the Prosecution say, that the person’s ability to protect themselves from significant harm was impaired. The Prosecution say that Eloise Parry was vulnerable because of her mental health problems and her psychological addiction to DNP, because those problems stifled her ability to make a fully free decision. The Defence say that she was able to protect herself; they say that an adult woman suffering from an emotionally unstable personality disorder and an eating disorder can, and in this case did, make a fully free, voluntary and informed decision to take the DNP.
26. When considering whether the decision was ‘fully voluntary’ you will want to consider whether she was acting under any compulsion, whether caused by her mental health problems or any psychological addiction she may have had to DNP. Here too, you will consider whether she was vulnerable, which in this context would mean that her ability to resist feeling compelled to take the DNP was impaired. The Prosecution say that there is clear evidence that she was acting under an element of compulsion because of her psychological dependence on DNP combined with her mental health problems. The Defence say she was not acting under compulsion, nor was she vulnerable to feeling compelled; she wanted to take the DNP and so she did.
27. When considering whether she was ‘fully informed’ you will want to consider whether she knew the risks that she was taking. The Prosecution say that she was not fully informed as the references she makes to ‘safe’ doses are nonsense and not supported by science. The Defence say that she had conducted substantial research so knew full well what risks she was taking.”
As to capacity, the judge directed the jury:
33. You should ask yourselves whether taking account of all the evidence in the case, Eloise Parry made a fully free, voluntary and informed decision to take the DNP? If you conclude that her decision was, or may have been, fully free, voluntary and informed, then that decision was the cause of her death, because as a matter of law, that decision supersedes or overtakes any grossly negligent act by the Defendant in supplying the DNP in the first place. The Defendant is not guilty of manslaughter.
34. If, on the other hand, you are sure that Eloise Parry did not make a fully free or fully voluntary or fully informed decision to take the DNP, then, if the defendant was in gross breach of his duty of care owed to her, his negligence remains a substantial and operative cause of her death, even if it was not the sole cause of her death. He is guilty of manslaughter.
Mr Rebelo appealed on a number of grounds. For present purpose, the materially interesting one is the assertion that the judge had misdirected the jury on the question of causation. Specifically, he asserted that the judge had failed to direct the jury that that even if they concluded Ms Parry’s decision was not fully free and voluntary, they still had to assess whether the decision to take the amount of DNP that she did was such that it could be said “to eclipse” the appellant’s gross negligence. It was said that, in light of the decision given on the first appeal in 2019, this further step was required in order to establish the necessary link between the appellant’s supply of DNP and Ms Parry’s death, and that Ms Parry’s action in taking the amount of drugs that she did, did not break the chain of causation.
Dame Victoria Sharp P, giving the judgment of the Court of Appeal, held that this was misconceived. On a proper interpretation of the first appeal judgment, the requirement that Mr Rebelo sought to add did not exist:
34. […] the key issue was whether Ms Parry had or might have made a fully free voluntary and informed decision to take DNP; if that was the case, the jury could not be sure that the appellant’s breach of duty was a cause of her death. We repeat the following passage from the Court of Appeal’s judgment:
“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.”
35. What followed was an explanation of what is meant by “fully free, voluntary and informed”(“What does a fully informed and voluntary decision mean?”). It is in that context, that the “starting point” taken is “the capacity of the victim to assess the risk and understand the consequences”; and then of her “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 or even grossly negligent breach of the duty of care”. As Sir Brian Leveson P said at para 77, what is required is a “balancing exercise” in order to decide whether the prosecution has established that a defendant’s breach of duty is a substantial and operative cause of death, even if it is not the sole such cause, bearing in mind, of course, that the jury would only be considering the causation issue at all if they have already concluded that the appellant’s conduct amounted to gross negligence and required criminal sanction.
Dame Victoria Sharp P noted that the trial judge had given a much fuller direction than had been suggested by Sir Brian Leveson P in the first appeal, but that was not surprising because she had to relate the legal direction given to the evidence called in the trial. She commended the judge’s direction as a model of clarity, and held that the jury were accurately directed on the issue of causation and their approach to the core issue of “free, voluntary and informed consent.” Further, the word ‘eclipsed’ had, in fact, been used when taken the jury through her written directions in the course of her summing up. It followed that the appeal against conviction on this ground had to be dismissed.
In the course of dismissing the other grounds of appeal, Dame Victoria Sharp P noted that the final report of the new expert upon which the defence wished to rely had been internally contradictory in stating that “whilst [Ms Parry’s] urge to take the drug at times overcame her decision not to take the drug, this decision was in my view still under her control.”
Comment
Questions of self-control arise often in the context of addiction, and are discussed (and compared to the approach taken to anorexia) in this fascinating article by Jill Craigie and Ailsa Davies. They pose deep questions as to the meaning of autonomy and its interaction with capacity. This case shows how this interaction is not merely of theoretical interest, but has real consequences – and the reality of those consequences (in this case criminal liability on the part of Mr Rebelo) mean that the courts, and indeed two juries, had to roll their sleeves up and try actually to disentangle the different elements.
[1] This must be a typographical error in the judgment (rather than Dr Latham’s report) for ss.2-3 Mental Capacity Act 2005.
