Sarah Wilson sets out the key considerations in the recent prosecution for manslaughter of a defendant who sold 'fat-burning capsules'.
On 27 June 2018, Harrow Council secured a conviction against Bernard Rebelo for placing unsafe food on the market and for manslaughter in relation to the death of Eloise Parry in 2015. The case related to the sale of 2,4 dinitrophenol (DNP), an industrial chemical which was used in the body building industry in the 1930s, due to its ability to increase body temperature and burn fat. It was subsequently found to cause severe side effects, including fever, nausea, vomiting, excessive sweating, muscle pain and organ failure. Long term effects include cataracts and in a number of cases ingestion has been fatal. Its sale has increased since 2000 due to the ease of sales on the internet.
On 29 June 2018, His Honour Judge Donne sitting at Inner London Crown Court imposed a custodial sentence of 7 years for the gross negligence manslaughter, no separate penalty for the unlawful act manslaughter and 18 months for placing unsafe food on the market. In sentencing, His Honour said that Mr Rebelo’s “culpability and the harm caused placed his offending in the highest category” for the food safety offence and in relation to the manslaughter of Ms Parry, that he had shown a “callous disregard for the safety and live of those of whom you peddled this toxic chemical. Eloise Parry was an intelligent, articulate young women who struggled with her mental health. She thought she had found in your so-called fat-burning capsules a magic solution for her distorted body-image and difficulties with bulimia nervosa. She was, of course, quite wrong. She rapidly became psychologically addicted to DNP and, despite the dangers of which she was well aware, she could not prevent herself from taking ever-increasing quantities. This led to what, she described as the revolving door of hospital admissions which led, inexorably, to her death on 12 April 2015, at the age of 21... I hope you can reflect on what the death of Eloise has meant to her mother, sister and extended family.”
Cllr Graham Henson, Leader of Harrow Council, said: “We brought this case because we were the last chance for justice for the family of a vulnerable young woman, who was poisoned by the vile toxins that this criminal knowingly peddled. Harrow Council had the best chance in years to bring those responsible to justice and help prevent the same fate befalling another innocent victim in the future. We simply had to take that chance. We know that other people have died from taking this extremely toxic chemical for weight loss, not just Eloise Parry. I hope this conviction will stop anyone else from selling DNP in this way. Rebelo thought he could hide online; hide from justice behind obscure laws. But he was wrong – we found him, we brought him here and now we’ve convicted him. And I hope we have raised awareness of the dangers of DNP, so people stop taking it. It is not something that can make you lose weight. It is a powerful poison, a pesticide that kills at very low doses. Anyone who tells you otherwise, like Rebelo, is lying to you.”
Ms Parry died in April 2015, after consuming capsules over a number of months and 8 capsules of 250mg each on the day of her death. West Mercia Constabulary conducted an investigation and identified that the sale came from a website www.drmusclepharmaceuticals.com. As DNP is not a controlled drug and is not deemed to be a medicine, the case was referred to the FSA National Food Crime Unit. Further enquiries linked the website to an addresses in West London. Searches of these addresses by Harrow and Ealing Councils resulted in a large quantity of DNP being seized from the Harrow address. The Metropolitan Police were also involved in the investigation due to the presence of steroids, which are classified as class C drugs.
The case was referred to Harrow Council’s shared legal practice, HB Public Law, in late 2016 and charges were laid under food safety legislation. However, the Code for Crown Prosecutors requires prosecutors to select charges that reflect the seriousness of the offence and provides the court with sufficient sentencing powers. The maximum sentence under the Food Safety and Hygiene (England) Regulations 2013 is 2 years imprisonment. Unlike in the majority of Health and Safety offences, Harrow Council was dealing with individuals, not a corporate entity. It needed to ensure it selected charges that properly reflected the death of Ms Parry.
Counsel’s opinion was sought and a decision was made to lay a further charge of manslaughter. After a lengthy preliminary hearing, it was decided to split the manslaughter charge into two separate counts to reflect the two ways in which this can be proved, namely unlawful and dangerous act manslaughter and gross negligence manslaughter.
Local authorities can prosecute under s.222 Local Government Act 1972. It is settled law that councils can prosecute for offences outside its area and for general criminal offences so long as it considers it expedient for the promotion or protection of the interests of the inhabitants of its area.
It will be rare for a local authority to proceed with a manslaughter offence, as this would normally be part of a joint investigation with the police and prosecuted by the CPS. However, our case arose from a food offence in London and a death in Shropshire. West Mercia Constabulary had already determined that the case should properly be investigated by the food enforcement agency. The Metropolitan Police would not investigate an offence which took place outside its area or for food safety offences. The CPS submitted that Harrow Council should be the lead agency. The FSA does not have the enforcement powers to prosecute. If the council had not prosecuted this case, no other agency would have done so.
This was a complex case, it involved liaison with a number of other agencies, expert evidence and over 10,000 pages of evidence. When conducting such a prosecution the following points are worth considering:
- The involvement of other agencies, including police forces, coroners, FSA and CPS requires careful consideration to identify who should lead on specific aspects of an investigation. The authority’s disclosure duties become particularly challenging when other agencies are involved. Ensure your disclosure officer has received recent training and starts the process of compiling disclosure schedules early. Check, check and check again that you have all relevant disclosure from other agencies.
- Ensure you have the right team - the council instructed Richard Barraclough QC and Gordon Menzies both of 6 Pump Court whose respective expertise of homicide and regulatory offences complemented each other perfectly. Experts were crucial in this case, including a forensic psychiatrist, toxicologist and representative from the Medicines and Healthcare Regulatory Authority. Identify these issues early and ensure your letter of instruction focuses on the issues. In a case of this size, ensure you have excellent legal and administrative support. When multiple bundles need to be prepared, last minute legal submissions are received, issues identified late in the trial and live links needed for foreign based witnesses the support of your legal assistants and support officers will be invaluable, especially when the court is an hour or more away from your office. And finally and most importantly your officer in charge needs to know the case in minute detail and needs to be given the time to focus on the case.
- As always expect the unexpected. Despite the requirements for defence case statements, it will be common for issues to be identified late in proceedings. This will require you to review disclosure schedules and material that you had not thought relevant.
- Be aware of the added complexities with digital evidence and disclosure. The police difficulties with digital disclosure have been well publicised. Disclosure is a fundamental aspect of our criminal justice system. However, where digital devices are seized, the material available will be huge. A sensible and recorded search approach is required, but this needs to be kept under review throughout the case. Simple keywords searches will not identify photographs, typos or the language of text messages. The material relied upon in this case was much wider than that originally identified from the police keyword search.
Local authorities have expertise in prosecuting a number of complex regulatory crimes and must ensure that the right charges are selected to reflect the offending behaviour. It is hoped that this prosecution will go some way to deter the internet sales of DNP and publicise the extremely harmful effects of this chemical.