Small Boats and Gross Negligence Manslaughter: Two Years on from R v Bah
A case study examining causation in R v Bah and the subsequent introduction of new small boat offences under the Border Security, Asylum and Immigration Act 2025.
Bah was a gross-negligence manslaughter case where causation principles were considered in the context of the defence raising issues concerning his own trafficking. The Court of Appeal focused on these issues of causation in the specific context of a channel crossing, including on novus actus interveniens. Since this case there have been changes in the law – with creation of a new offence – which could be viewed as an attempt to avoid future issues on the Bah point.
Introduction
1. The case of R v Bah [2024] EWCA Crim 1499 (Bah) came before the Border Security, Asylum and Immigration Act 2025 and as such the new provisions could be regarded as designed to deal with the legal uncertainty created by this case. Whilst the court confirmed that someone trafficked can be held legally responsible for manslaughter, refugee groups criticised this decision as it can on one view criminalises victims as opposed to targeting the smugglers who run the operations.
2. Section 21 of the 2025 Act now provides for a new offence to deal specifically with an offence of endangering another during sea crossing to United Kingdom. Refugee charities remain critical of this development setting out their concerns that this further codifies the unfair targeting of asylum seekers who are coerced by smugglers and traffickers in carrying out small boat crossings. This offence came into force on the 5th January 2026, amending s. 24 of the Immigration Act 1971. The s. 21 offence provides that where there is the commission of an underlying offence and during the relevant period an act causes or created the risk of death or serious injury, an offence is committed which carries a term of 5 or 6 years imprisonment (depending on the underlying offence). This deftly avoids the causation issues for the offence of gross negligence manslaughter.
3. Many refugee charities have written articles and blogs criticising the new Act. In particular, the Refugee and Migrant Children consortium (RMCC), which represents a group of NGOs and not-for-profit organisations in the sector, published a document detailing their criticisms: available here.
4. The Law Commission are currently undertaking an evaluation of the law on homicide exploring structural changes to bring clarity to the existing legislation. This includes proposals to create tier-types for homicide offences including specified offending conduct in codified form. The Commission published a consultation paper on 17th June 2026 proposing a three-tier structure for homicide with the consultation open until 30th September 2026 and a final report aimed at 2028. The proposals include reform to manslaughter which could impact on offences of gross negligence manslaughter as examined by the Court of Appeal in Bah. For more information, click here.
BAH Case Study
5. On 19/02/2024, the applicant was convicted following re-trial at Canterbury Crown Court. He was convicted of the following counts:
a. Doing an act to facilitate the commission of a breach of UK immigration law by a non-UK national (contrary to s. 25(1) and (6) Immigration Act 1971).
b. Four counts of gross negligence manslaughter.
6. The applicant was sentenced to 9 years 6 months immediate detention with all manslaughter charges having the same length imposed concurrently. In relation to the breach of immigration law, he received 4 years concurrent. The applicant appealed against conviction and sentence.
Factual Matrix
7. The applicant was 20 years old at the time of his conviction. He had travelled from Senegal to the UK to claim asylum. He had travelled by boat from Libya to Italy and made his way to Dunkirk where he stayed in ‘The Jungle’ for around three months. The applicant’s plan was to find opportunity to cross the Channel into the UK.
8. The applicant had previous experience of handling boats as he worked with fishing boats back in Senegal. He had assisted in piloting the boat from part of the crossing from Libya into Italy.
9. It was accepted by all parties that traffickers operating in this area charge large sums for the chance to travel to the UK across the Channel in small boats. Most of these individuals who undertake such a voyage do so in the hopes of making claims for international protection. The applicant did not have money to pay for the crossing attempt, but the traffickers approached him offering free passage for himself and a friend if he agreed to steer the boat. The applicant agreed.
10. The applicant and others who were also involved in the crossing were taken by car to the point where the boat would depart. There were 45 people who were intending to be part of the voyage.
11. Traffickers were armed and had threatened as well as assaulted passengers. The traffickers provided an inflatable boat which some of the passengers inflated. Most of the passengers then lifted the boat up and took it to the water.
12. The applicant raised his concerns with traffickers about the boat’s construction and number of intended passengers. It was accepted by the trial judge that he had been put under ‘verbal and some physical pressure’ not to refuse the task he had previously accepted.
13. The crossing happened later that evening. Two passengers used their mobile phones for navigation. For the first 45 minutes the sea was calm and the passage proceeded smoothly. However, within an hour, water started to enter the boat. The volume of water was so significant that the applicant steered the boat towards a fishing vessel, the Arcturus. The Arcturus was engaged in dredging for scallops.
14. Panic inevitably set in, the applicant urged other passengers to stay calm and in their seats. Unfortunately, passengers did not adhere to these instructions. As passengers stood up, the floor of the boat broke, and the boat collapsed in on itself. This trapped some of the passengers inside.
15. The crew of Arcturus helped to save the boat; the applicant was captured on video holding onto a rope to prevent the boat from drifting away. The applicant remained on the boat until most passengers had boarded the Arcturus. Other rescue vessels arrived.
16. The applicant was distressed because his friend was one of those persons that had become trapped in the collapsed boat. In the aftermath of the incident, it was uncovered that 4 passengers had died. The survivors were taken to Dover where they claimed asylum.
The Trial
17. The prosecution relied upon expert evidence of a powerboat instructor and author of the advanced handbook on powerboats. The expert had further undertaken training in marine accident investigation.
18. The expert described the skipper’s role on a vessel as the person in charge with the responsibility for the safety of passengers on board and the course of the journey to be taken. The expert concluded that the applicant fulfilled this function as he was placed in charge of the vessel including the responsibility for its safety and that of passengers.
19. It was accepted that the boat was not of satisfactory construction. A craft of this kind was not intended for use in open seas across large distances. There were no necessary safety and navigation equipment provided. The boat was not safe for the purpose of carrying 45 people on open sea.
20. The expert described the Channel as one of the ‘busiest shipping lanes in the world’. The Channel is subject to careful traffic regulation and attempting to cross without any lights was perilous as they would be invisible to larger vessels.
21. Moreover, the weather at the time was cold. The sea temperature was 11.2 degrees with air temperature of 3 degrees. There was a clear risk of cold-water shock for anyone who fell into the water. The expert concluded that there was a significant risk of death to passengers. This risk was assessed as very obvious to most people.
22. The trial judge formed the view that any passenger who embarked on the voyage did so ‘freely and voluntarily […] knowing of the risks.’ Some passengers had helped to inflate the boat and been involved in navigation which consequently made them participants in undertaking the crossing.
23. The applicant raised the defence of duress at the hands of the traffickers. The Jury returned verdicts of guilty to the immigration charge and gross negligence manslaughter.
The Appeal
24. The applicant sought leave to appeal against conviction on the following grounds:
a. Ground 1: jury irregularity which prevented a fair trial
b. Ground 2: trial judge erred in rejecting submission of no case to answer on manslaughter
c. Ground 3: trial judge erred in law in that they failed to direct the jury that the deceased’s voluntary choice to risk death by joining the crossing and whether this was significant or more than minimal cause of their deaths.
Ground 1: Jury irregularity
25. Following the applicant’s conviction on 19/02/2024, the trial court received an anonymous communication by email that related to the jury. The email came from a colleague of a member of the jury and concerned suggestions that – contrary to the well-known principles of jury confidentiality and judicial warnings for a member not to discuss the case outside of their number whilst a trial is ongoing – these rules had been breached.
26. The registrar referred this email to the Attorney General’s office. The potential jury irregularity was investigated but no action taken. The applicant submitted that the reasons why no action was taken should have been provided to the court. The Court of Appeal rejected the applicant’s challenge that the juror irregularity made the conviction unsafe. They made the following points:
a. The email was not received until after verdicts were returned;
b. No concerns raised by any juror regarding any misconduct;
c. No evidence that the juror’s conduct during trial would render the conviction unsafe.
Ground 2: Submission of no case to answer
27. It was accepted that passengers had entered the boat voluntarily. The defence argued in half-time submission that their voluntary action of boarding the boat was a novus actus interveniens that broke the chain of causation. They exercised free-will and choose to embark on a dangerous voyage in full knowledge of the risks. The applicant relied upon the principles laid down in R v Kennedy (No 2) [2007] UKHL 38 as well as other key authorities. These authorities were used to show that the decision of each deceased to take part in the perilous journey was entirely voluntary which fails to establish causation.
28. The prosecution resisted these arguments. Firstly, they distinguished that Kennedy deals with unlawful act and not gross negligence manslaughter. There were clear causation issues in Kennedy because the prosecution failed to identify the unlawful act upon which the manslaughter charge could be founded. The prosecution argued that it was the applicant’s actions in driving the boat across the Channel that resulted in deaths which occurred during this ongoing act. There was no novus actus interveniens.
29. The trial judge rejected the submission of no case to answer. He accepted that each deceased made a free, voluntary and informed decision to travel on the boat driven by the applicant. However, the trial judge held that the defendant and deceased were acting in concert to travel to the UK undetected which meant there was no break in the chain of causation.
30. The Court of Appeal held that:
a. Causation is a central issue in result crimes, because causation is used to link the defendant with the criminal consequences of their action. Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his action. [para 28]
31. The court further considered the six elements of gross negligence manslaughter as confirmed in R v Broughton [2020] EWCA Crim 1093 as follows:
a. The defendant owed an existing duty of care to the victim.
b. The defendant negligently breached that duty of care.
c. At the time of the breach there was a serious and obvious risk of death. Serious, in this context, qualifies the nature of the risk of death as something much more than minimal or remote. Risk of injury or illness, even serious injury or illness, is not enough. An obvious risk is one that is present, clear and unambiguous. It is immediately apparent, striking and glaring rather than something that might become apparent on further investigation.
d. It was reasonably foreseeable that at the time of the breach of the duty that the breach gave rise to a serious and obvious risk of death.
e. The breach of the duty caused or made a significant (i.e. more than minimal) contribution to the death of the victim.
f. In the view of the jury, the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.
32. The principles of causation dealt with in R v Wallace (Berlinah) [2018] EWCA Crim 690 were also considered. The Court of Appeal held the following at Paragraph 30:
There are two well-recognised considerations: the first is that a chain of causation between the act of A and a result may be broken by the voluntary, deliberate and informed act of B to bring about that result; secondly, there is a distinction between “cause” in the sense of a sine qua non, without which the consequence would not have occurred, and “cause” in the sense of something which was a legally effective cause of that consequence. Where there are multiple legally effective causes, it suffices if the act or omission under consideration is a significant (or substantial) cause. There is a well-recognised distinction between conduct which (merely) sets the stage for an occurrence and conduct which on a common-sense view is regarded as instrumental in bringing about the occurrence.
33. They further endorsed the notion that the ‘free, deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.’
34. The application made by the defence engaged the first limb of the test from R v Galbraith [1981] 1 WLR 1039. Namely, the evidence could not establish an offence having been committed by the applicant in this case because causation could not be established.
35. The Crown relied upon R v Wacker [2002] EWCA Crim 1944 which involved the facilitation of the illegal entry of 60 Chinese nationals to the UK in a modified refrigerated container of a lorry being driven by the appellant in that case. An air vent had been closed prior to the ferry crossing to prevent discovery of the individuals in the lorry. However, the vast majority died of suffocation with only two surviving.
36. The appellant in Wacker was charged with gross negligence manslaughter. The defence also made a submission of no case to answer which was rejected by the trial judge. On appeal the following was held:
The criminal law has as its function the protection of citizens and gives effect to the state’s duty to try those who have deprived citizens of their rights of life, limb or property.
Further the criminal law will not hesitate to act to prevent serious injury or death even when the persons subjected to such injury or death may have consented to or willingly accepted the risk of actual injury or death.
37. The applicant in Bah on this basis had to accept that he owed a duty of care to the deceased because he had assumed the role of skipper and had taken charge of the boat. The court held that there was no novus actus interveniens. The applicant and deceased were acting in concert in the same single episode that ended in death. Therefore, it was held that the trial judge was correct in rejecting the applicant’s submission of no case to answer.
Ground 3: Voluntary Choice and Causation
38. The applicant submitted that the jury should have been directed on the deceased’s voluntary choice to risk death by joining the crossing as relevant to the issue of causation.
39. The Court of Appeal held that the trial judge correctly analysed that the deceased voluntarily joining the boat does not establish a break in the chain of causation. If the trial judge had given such a direction, it would have been a misdirection. Therefore, Ground 3 was also rejected.
Appeal against Sentence
40. The sentencing judge treated the applicant as 20 years old and found he had low culpability as he was not involved in the organisation or coercion of passengers. He did not secure any financial gain except not having to pay for his own passage.
41. However, the judge did find a high degree of harm. The starting point was 5 years. The judge did consider the pressure he was put under, his age, his good character as well as mental health. The applicant also suffered traumatic hardships, and it was accepted that the applicant would struggle to cope in custody. Ultimately, the applicant received a sentence of 4 years on Count 1.
42. On Counts 2-5, the sentencing judge found higher culpability but did note that the deceased freely and voluntarily embarked on the journey in full awareness of the risks. The judge did note that the applicant remained on the boat to help other passengers. The judge had to sentence for four offences and in keeping with totality, the judge sentenced the applicant to 9 years 6 months concurrent with Count 1 of 4 years.
43. The applicant appealed against sentence stating that there should not have been a finding of a high degree of harm on Count 1. This argument was rejected by the Court of Appeal who approved the trial judge’s analysis of the factors to be considered when assessing harm.
44. The applicant also argued that in relation to the gross negligence manslaughter charges he should have been in a lower culpability category as his offending was lesser and subordinate to the traffickers who prey on the vulnerable. The applicant accepted medium culpability.
45. The Court of Appeal rejected these submissions. They noted that guidelines are not to be applied ‘mechanistically’. They concluded that there were features that indicated high culpability. The Court of Appeal noted that the applicant had persisted in conduct which demonstrated a clear disregard for the high risk of death. However, they did agree that the ultimate responsibility does lie with the traffickers.
46. The applicant also stated that the sentencing judge should have considered his age and other mitigating factors. The Court of Appeal rejected this stating that the judge was explicit about taking these factors into account.
47. The applicant then challenged sentence on the grounds that there was a failure to have proper regard to the principle of totality. The Court of Appeal did not agree the sentence to be manifestly excessive. They described the judge’s approach to totality as ‘unimpeachable’.
Conclusion
48. Leave to appeal against conviction and sentence was refused.
49. In a time of great political upheaval on the topic of small boats and how different political groups have been accused of manipulating these narratives for their own agendas; this case should not be read as more than a comment on causation. To do so would be to misread the intentions behind the judgment of the Court of Appeal. The nuances raised triggered governmental response in the form of a statute dealing specifically with boat crossings.
50. There is an undeniable human tragedy at the heart of this case. People knowing that they take great risk of death to escape their circumstances. This indicates a level desperation that for many might evoke great sympathy. Reading this case may also elicit compassion for trafficked individuals like Mr Bah which would be an understandably human way to view his predicament – on his case he was forced to do what he did, and he did try to save people when things went terribly wrong.
51. Regardless of the emotional angles attached and notwithstanding recognition of the pressure the applicant was under this did not amount to the defence of duress. There was a general acceptance that Mr Bah’s vulnerabilities and circumstances mitigated his actions. However, the Court of Appeal focused on causation. This case goes no further than that.
52. Therefore, this case assists in relation to causation and confirms the application of the law without commenting on any political narrative arising out of asylum seekers and small boats. However, on one view the nuances arising out of this case caused the government to legislate for the new offence under s 21 perhaps to avoid these issues. The approach to prosecution of this offence and sentencing remains to be seen.
53. The Sentencing Council have launched a consultation on the proposed sentencing guidelines of these offences. Further information can be found here.
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