Supply of DNP and manslaughter prosecutions: an update

January 17, 2020

Richard Barraclough QC has been asked to advise on yet another prosecution following the death of a consumer who, having taken DNP died in distressing circumstances. The issue in all these cases will be the question of capacity and any break in the chain of causation.

Following the decision of the Court of Appeal in Rebelo (Richard Barraclough QC and Gordon Menzies for the prosecution) it will not be possible to prosecute for unlawful act manslaughter because the distribution of DNP on the internet is not an act dangerous in itself. It remains an offence under the 2013 Regulations and Article 24 Regulation 178 of the European Regulations. A full analysis of the position at law will follow the determination of the retrial of the case of Rebelo in the Central Criminal Court fixed for February 2020 (again prosecuted by Richard Barraclough QC and Gordon Menzies).

The authorities and in particular the Food and Drug Administration (FDA) in the United States of America continue to be interested in the chemical. An individual has been indicted by the Grand Jury for the offence of fraud. The indictment records that despite the known dangers and its unapproved status, DNP continues to be distributed illegally. It is particularly popular with bodybuilders and athletes because of its ability to affect the body and rapidly lose body fat. The defendant was encapsulating and distributing DNP within the United States, Canada and the United Kingdom. He has been charged that with intent to defraud and mislead, he introduced into interstate commerce DNP, a “drug” that was misbranded with false and misleading labels in that they stated that the product was a fertilizer and not for human consumption when he knew and intended that it be consumed as a drug (United States Code Title 21 Section 331, 35 and 333).

In the United Kingdom, DNP is not considered to be a medicine or drug and because it is not so recognised it is technically a food and falls to be considered as unsafe in that it is injurious to health under Article 24 Regulation 178. It has been mooted that it should be considered an explosive and thus subject to the explosives legislation. That issue will be considered once the current litigation is at an end.