Authored By: Olivia Hesson
University of York
Issue:
Ibrahima Bah, a 17-year-old Senegalese asylum seeker, was offered free passage across the English Channel if he agreed to pilot an unseaworthy, overcrowded inflatable dinghy carrying 45 migrants from France to England.1 He had no previous experience of piloting a vessel, had received no training, and there was no safety equipment on board.2 Upon seeing the construction of the boat and the number of intended passengers, Bah was considering changing his mind.3 He was then told that if he refused to pilot the boat, he would be left behind, contributing to his fear and uncertainty.4 The traffickers then put Bah through “verbal and some physical pressure”5to pilot the boat. The journey took place in the middle of the night, in dangerous conditions, and the boat was heavily overloaded.6 After about an hour, the vessel took on water and collapsed, leading to four deaths.7 Multiple people fell into the sea, and Bah was among the last to be rescued.8 Due to his role in piloting the boat, he was convicted of facilitating a breach of immigration law9 by a non-UK national and four counts of gross negligence manslaughter.10 Following a hung jury in the first trial, Bah was retried and convicted. He was sentenced to 9 years and 6 months’ detention.11 He later appealed his conviction, raising arguments about causation and coercion. The central legal issue on appeal was whether the voluntary decision of the deceased to board the unsafe boat broke the chain of causation required for gross negligence manslaughter.12 The appeal also raised the question of whether Bah owed a duty of care despite the passengers’ voluntary participation in an unlawful crossing.13
Rule:
The existence of a duty of care is a question of law for the judge, informed by ordinary principles of negligence as set out in Caparo Industries plc v Dickman.14 This involves a three-stage test: whether harm was reasonably foreseeable, whether there was a relationship of proximity between the defendant and victim, and whether it is fair, just, and reasonable to impose a duty. This has been adapted for the criminal context, and the six-stage framework for gross negligence manslaughter was articulated in R v Broughton.15 In such cases, the prosecution must prove that the defendant owed a duty of care, breached that duty through negligence, and that the breach created a serious and obvious risk of death that was reasonably foreseeable. The risk must be of death, not merely serious injury.16 Crucially, the foreseeability requirement is objective: it concerns whether a reasonable person in the defendant’s position would have foreseen the serious and obvious risk of death, rather than the defendant’s subjective insight or awareness.17 Additionally, the breach must have caused or significantly contributed to the victim’s death. This does not require the breach to be the sole cause but must be more than trivial, as affirmed in R v Rubelo, where the defendant’s negligent driving was held to be a substantial cause of death despite multiple contributing factors.18 The grossness requirement means the defendant must be so exceptionally culpable as to amount to gross negligence warranting criminal sanction.19
The judge must also be satisfied that there is sufficient evidence on each element that a properly instructed jury could find the breach was grossly negligent.20 Courts also use broad “creation or contribution to danger”21 principles to establish a duty of care, even in contexts where the defendant’s role was limited or coerced.22 The chain of causation which ties the death(s) to the defendant may be broken if the victim’s act is free, voluntary, informed, and not in concert with the defendant.23 Each element apart from the existence of a duty of care is a question of fact for the jury, which after all other elements have been met, must decide whether the defendant’s conduct was “so bad in all the circumstances as to amount to a criminal act or omission.”24
Application:
The Court of Appeal dismissed the appeal against conviction and the grounds of appeal against the custodial sentence,25 finding that the judge’s assessment and determination of sentence properly reflected the circumstances of the offending.26 The defence at trial sought to rely on threats from traffickers to argue that Bah should bear no criminal responsibility for the deaths. However, consistent with R v Howe,27 the trial judge ruled that duress could not provide a complete defence to manslaughter causing death. While this rule excluded duress as a formal defence, the Court of Appeal accepted that evidence of coercion remained relevant to the factual assessment of duty, breach, and mitigation.28 This approach highlights the law’s commitment to preserving the exclusion of duress in homicide while recognising that coercion may nonetheless inform judgments about the scope of duty and culpability.29
The existence of the applicant’s duty of care is based upon the decision in R v Wacker,30 where the defendant transported 60 Chinese nationals in a sealed lorry container with inadequate ventilation, resulting in the suffocation deaths of 58 individuals during an attempt to facilitate unlawful entry into the UK.31 The Court of Appeal held in Wacker that the fact that both the defendant and victim were engaged in a criminal activity did not preclude the existence of a duty of care, and this logic was applied in Bah. The different approach taken by criminal law in this regard, as opposed to that adopted by civil law, is justified by the distinct public policy aim of criminal law, namely the “protection of citizens.”32
The “creation or contribution to danger” principle was central to the duty of care analysis. The Court held that, despite Bah’s limited and pressured role, he was acting in concert with the other passengers in creating a life-threatening situation. It was determined Bah had assumed a position of relative responsibility,33 thereby giving rise to a duty of care that was breached through gross negligence.34 The court’s reasoning on causation was critical. It held that the deceased passengers’ voluntary decision to board the boat did not negate the duty of care that Bah owed them, given their concerted efforts and Bah’s role as ‘skipper,’35 which gave Bah responsibility for their safety throughout the journey. It also did not break the chain of causation required to assign responsibility for the deaths to Bah, as the decision to board the boat was not deemed a separate or independent act. In contrast to Kennedy, where the victim’s voluntary drug self-administration broke the chain of causation, the Court in Bah held that the deceased was jointly participating in a shared unlawful venture, leaving causation intact.36
The Court also assessed grossness. It confirmed that the risk was one of death, not merely injury, satisfying the threshold identified in Misra and Srivastava.37 The overcrowded, unseaworthy dinghy presented an obvious and serious risk of death that Bah knew about.38 The Court of Appeal upheld the jury’s original finding that the defendant’s breach of duty was sufficiently serious to constitute gross negligence warranting criminal sanction. It also acknowledged Bah’s attempts to save passengers who fell overboard, but held that such conduct, while potentially relevant to mitigation, did not undermine the gross negligence conclusion.39 Finally, the Court also upheld the sentence, accepting that the trial judge had appropriately weighed the mitigating factors40 and applied the totality principle.41 The Court rejected Bah’s argument for lower culpability based on his subordinate role,42 deeming that higher culpability was justified given the number of deaths and the obvious risk created by the overcrowded, unseaworthy vessel.43
Conclusion:
R v Bah reinforces the principle that, in cases of gross negligence manslaughter, the duty of care is not negated by the victim’s voluntary participation in illegal, dangerous activity when both parties act in concert. The ruling effectively closes potential loopholes in prosecuting fatal people-smuggling operations and highlights the criminal law’s role in safeguarding life44 even within joint criminal ventures. Furthermore, the decision affirms that liability may attach to any participant, regardless of whether they were a leader or an unwilling actor, if their involvement significantly contributed to the resulting harm.45
While the court held that the victims’ voluntary choice to board the boat was irrelevant to both causation and as a defence, it did not address how this voluntary participation might affect the defendant’s culpability. The judgment treats this voluntary act merely as an extension of the defendant’s conduct, yet it fails to engage with the normative question of whether such a free and informed choice should mitigate blameworthiness, even when the parties are acting in concert. Although a duty may arise when someone contributes to a life-threatening situation and must take steps to prevent death,46 Bah’s case is also complicated by his attempts to save passengers who fell overboard, as he was one of the last people to be rescued from the collapsing boat.47 The scenario arguably does not align easily with the reasoning that duress must be excluded as a defence in homicide because the taking of an innocent life can never justifiably be “the lesser of two evils,”48 nor does it meet the requirement that the negligence demonstrated “a disregard for life.”49 Furthermore, attributing primary responsibility to Bah overlooks the collective nature of the journey50 and arguably overstates Bah’s culpability relative to other passengers and the traffickers,51 particularly in its reliance on Wacker to import a duty of care, as the defendant in that case was an organiser with a greater profit motive. This raises concerns about fairness and proportionality in applying gross negligence manslaughter liability to individuals who have been coerced in migration contexts.52
These concerns resonate with academic critiques that gross negligence manslaughter’s mens rea should require intention to cause serious harm or subjective recklessness rather than mere negligence. Proponents of this reform suggest that criminalising gross negligence risks punishing inadequate conduct without true blameworthiness and advocate for a higher fault threshold.53 However, critics of this position warn that raising the mens rea bar could reduce accountability in critical safety contexts, reflecting the ongoing tension in defining culpability in manslaughter law.54
It is unclear whether future courts will apply this reasoning consistently or whether Bah marks a high point of prosecutorial discretion during an era of increasing hostility to irregular migration. As academic and policy discourse evolve, this case may give rise to growing calls to reframe how coercion, vulnerability, and structural context are addressed in gross negligence manslaughter.55 R v Bah is undoubtedly a focal point for debate over whether legal duties of care can or should be applied to those at the margins of both law and society.56
Works Cited
Statute
Immigration Act 1971
Case Law
Adomako [1995] 1 AC 171
Caparo Industries plc v Dickman [1990] 2 AC 605
R v Bateman (1925) 19 Cr App R 8 [11]
R v Broughton [2020] EWCA Crim 1093, [2021] 1 WLR 543
R v Evans [2009] EWCA Crim 650
R v Howe [1987] AC 417 (HL)
R v Ibrahima Bah [2022] EWCA Crim 2023
R v Ibrahima Bah [2024] EWCA Crim 1499
R v Kennedy (No 2) [2007] UKHL 38, [2008] 1 AC 269
R v Misra and Srivastava [2004] EWCA Crim 2375
R v Rubelo [2021] EWCA Crim 482
R v Wacker [2003] QB 1207
Secondary Sources
Kenneth J Arenson, ‘The Paradox of Disallowing Duress as a Defence to Murder’ (2014) 78(1) Journal of Criminal Law 65
Catherine Elliott and Frances Quinn, Elliott and Quinn’s Criminal Law (Pearson Education Limited 2018) https://ebookcentral.proquest.com/lib/york
ebooks/detail.action?docID=5347867 accessed 21 July 2025
Daniel Bunting and Margo Munro Kerr, ‘Immigration Offences’ (LexisNexis)
Cath Crosby, ‘Gross Negligence Manslaughter by Omission: the Emergence of a Good Samaritan Law?’ (2018) 82 Journal of Criminal Law 12
Nicola Monaghan, ‘A Sad Case of Manslaughter: Gross Negligence Manslaughter Where the Deceased is Engaged in Criminal Activity and the Parties are Acting in Concert: R v Ibrahima Bah [2024] EWCA Crim 1499’ (2025) Journal of Criminal Law 00220183251346398
Sentencing Council, ‘Manslaughter: Definitive Guideline’ (2018)
Tony Storey, ‘A Dangerous Situation: The Duty of Care in Gross Negligence Manslaughter’ (2016) 80 Journal of Criminal Law 12
1 R v Ibrahima Bah [2024] EWCA Crim 1499 [2]–[3].
2Ibid, [7], [14].
3Ibid, [3].
4Ibid, [7].
5Ibid, [5].
6Ibid, [8].
7Ibid, [4].
8Ibid, [10].
9Immigration Act 1971, ss.24, 25.
10 Bah, [1], [6].
11Ibid, [6].
12 Ibid, [21], [39].
13 Ibid, [18], [20].
14 Caparo Industries plc v Dickman [1990] 2 AC 605, 617.
15 R v Broughton [2020] EWCA Crim 1093, [2021] 1 WLR 543, [5].
16 Ibid.
17 Catherine Elliott and Frances Quinn, Elliott and Quinn’s Criminal Law (Pearson Education Limited 2018) https://ebookcentral.proquest.com/lib/york-ebooks/detail.action?docID=5347867 accessed 21 July 2025, 122.
18 Bah, [34], citing R v Rubelo [2021] EWCA Crim 482.
19 Bah, [29].
20 R v Broughton [2020] EWCA Crim 1093, [2021] 1 WLR 543 [53].
21 R v Evans [2009] EWCA Crim 650, [26].
22 Cath Crosby, ‘Gross Negligence Manslaughter by Omission: the emergence of a Good Samaritan law?’ (2018) 82 J Crim L 12, 3–4.
23 R v Kennedy (No 2) [2007] UKHL 38, [2008] 1 AC 269, [14].
24 Adomako [1995] 1 AC 171, 87.
25 Bah, [61].
26 Daniel Bunting and Margo Munro Kerr, ‘Immigration Offences’ (LexisNexis), 5.
27 R v Howe [1987] AC 417 (HL).
28 Ibid, [60-65].
29 Bah, [45].
30 R v Wacker [2003] QB 1207
31 Bah, [34], discussing R v Wacker [2003] QB 1207 (CA).
32 Bah, [33].
33 Ibid, [33], [39].
34 Ibid, [39]–[40].
35 Ibid, [36].
36 R v Kennedy (No 2) [2007] UKHL 38, [14]–[16].
37 R v Misra and Srivastava [2004] EWCA Crim 2375, [45]–[48].
38 Misra [2004] EWCA Crim 2375.
39 Bah, [60-63].
40 Ibid, [52].
41 Ibid, [53].
42 Bah, [50]; Sentencing Council, ‘Manslaughter: Definitive Guideline’ (2018).
43 Bah, [53].
44 R v Wacker [2003] QB 1207, [34].
45 R v Evans [2009] EWCA Crim 650, [31], quoted in Tony Storey, ‘A Dangerous Situation: The Duty of Care in Gross Negligence Manslaughter’ (2016) 80 J Crim L 12, 3.
46 R v Evans [2009] EWCA Crim 650, [31], quoted in Tony Storey, ‘A Dangerous Situation: The Duty of Care in Gross Negligence Manslaughter’ (2016) 80 J Crim L 12, 14.
47 Bah, [17].
48 Kenneth J Arenson, ‘The Paradox of Disallowing Duress as a Defence to Murder’ (2014) 78(1) J Crim L 65, 67.
49 R v Bateman (1925) 19 Cr App R 8 [11].
50 Bah, [11].
51 Ibid, [4], [6].
52 Cath Crosby, ‘Gross Negligence Manslaughter by Omission: the emergence of a Good Samaritan law?’ (2018) 82 J Crim L 12, 8.
53 Catherine Elliott and Frances Quinn, Elliott and Quinn’s Criminal Law (Pearson Education Limited 2018) https://ebookcentral.proquest.com/lib/york-ebooks/detail.action?docID=5347867 accessed 21 July 2025, 140.
54 Ibid.
55 Kenneth J Arenson, ‘The Paradox of Disallowing Duress as a Defence to Murder’ (2014) 78(1) J Crim L 65, 69.
56 Nicola Monaghan, ‘A Sad Case of Manslaughter: Gross Negligence Manslaughter Where the Deceased is Engaged in Criminal Activity and the Parties are Acting in Concert: R v Ibrahima Bah [2024] EWCA Crim 1499’ (2025) The Journal of Criminal Law 00220183251346398, 177.
