“This doesn’t sound like a story which should feature on the UK Criminal Law Blog. What’s the offence?” Well, dear reader, all shall be revealed.
The Daily Mail reported that whilst aboard a Ryanair flight from Tenerife to Stanstead, a Zimbabwean man opened a bag of nuts. So what? Well the problem was that also on board the plane was 4 year old Fae Platten, who suffers from a severe nut allergy. Her parents had informed the cabin crew and the cabin crew had in turn informed the passengers on the plane of the allergy. Passengers were told that peanuts would not be sold on board the plane and they were instructed not to open any bags of nuts they had already purchased.
Some 20 minutes into the flight, Fae began to feel ill and her parents alerted the cabin crew. She subsequently went into anaphylactic shock with her face, lips and tongue swelling, and blisters appearing on her skin. She was unable to breathe and lost consciousness. An ambulance worker on board responded to requests for any assistance from medically trained passengers and used her adrenaline pen to bring her back to consciousness.
The Zimbabwean man was said to have teenage children with him on board the flight. The Mail reported that another passenger remonstrated with the man as he went to open the packet of nuts and that he said something to the effect that he would do as he wished. When the plane landed, he was escorted to the terminal by police. He later claimed he did not have very good English language skills. It is unknown whether the police have charged him or are considering doing so.
The obvious offences
So what offences might have been committed?
Well, the obvious one is an offence against the person – either s.47 assault occasioning actual bodily harm or s.20 GBH.
For ABH, it is necessary to prove that there was an assault. For there to be an assault, the individual must cause another (in this scenario, Fae, the young girl) to fear immediate and unlawful violence. There hangs a question as to whether it could be shown that a) a 4 year old child appreciated the risk posed by i) her nut allergy and ii) a selfish passenger disregarding the instructions of the cabin crew so as to cause her to “fear” the consequences and if so, b) whether the fear of the consequences could constitute “violence”.
For those reasons, it is probably unlikely that ABH would be charged. It feels a little like forcing a square peg into a round hole – this is not the sort of activity that the offence was created to encompass (however, as with the social media prosecutions under Comms Act 2003 s 127, we know that that argument isn’t a bar to prosecution).
As for GBH, well “grievous” is to be given its ordinary meaning – really serious harm and it is not necessary that the injury is permanent or that the victim requires treatment. In assessing whether harm caused is “grievous”, account had to be taken of the effect on, and the circumstances of, the victim (R v Bollom, 2003) I think we can say that the anaphylaxis and loss of consciousness satisfy the requirement for really serious injury.
As to the causing or inflicting of the injury, there is no requirement that there be any contact between defendant and victim – the only real issue is one of causation – did the act of the accused result in the injury suffered by the victim. There is no requirement that there be an assault (“causing the victim to apprehend immediate and unlawful violence” – as in ABH, above) and so that doesn’t pose a problem.
There is however, a requirement that the GBH be “unlawful”. So what does this mean? Well it requires that there be some ill intent. That intent can be a specific intent (i.e. a desire to cause the harm) or reckless intent (i.e. an appreciation of the risk posed by the action(s) performed). In this case, the act of opening the bag of nuts would obviously fall under the latter – there was no direct intent to cause the girl harm, but after being given the warnings, there was an appreciable risk that harm would be caused to the girl by the opening of the packet of nuts. It is therefore only necessary to prove foresight of some physical harm. It is submitted that the warnings given (subject to the issue of his claimed poor English language skills) would satisfy this element.
Aviation Security Act 1982 s.2 – destroying, damaging or endangering safety of aircraft
Right, bear with me. It doesn’t sound like the description of the offence fits these facts. But I think it does.
Section 2, states:
(1) It shall, subject to subsection (4) below, be an offence for any person unlawfully and intentionally—
(a) to destroy an aircraft in service or so to damage such an aircraft as to render it incapable of flight or as to be likely to endanger its safety in flight; or
(b) to commit on board an aircraft in flight any act of violence which is likely to endanger the safety of the aircraft.
Is it an act of violence? Well we doubted that earlier on in the post. However, it is always worth checking the interpretation sections because here, s.2(7) states:
(a) any act done in the United Kingdom which constitutes the offence of murder, attempted murder, manslaughter, culpable homicide or assault or an offence under section 18, 20, 21, 22, 23, 24, 28 or 29 of the Offences against the Person Act 1861 or under section 2 of the Explosive Substances Act 1883…
And we have – I think – established that there is a basis to say that an offence under s.20 is made out.
Of course, as usual, we add the disclaimer that we are basing this post on the news report and there may well be inaccuracies, omitted details and unknown information which could alter the position so far as to the permissibility of a prosecution.
There will be some that think that although this was a very selfish and stupid act (providing the man understood the warnings) a prosecution should not follow as it “feels a bit wrong”. This country has somewhat of a habit of unnecessary criminalising its subjects (again, think Comms Act 2003). In my view however, on the basis of the facts as understood above, I would press forward with a prosecution. I think the offence is made out and the arrogance and selfishness of the individual deserve punishment.