|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> EGS Ltd, R. v  EWCA Crim 1942 (08 October 2009)
Cite as:  EWCA Crim 1942
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BOURNEMOUTH CROWN COURT
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE DAVIS
MR JUSTICE LLOYD JONES
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Ben Compton (instructed by messrs Morgan Cole) for the Defendant/Respondent
Hearing date: Thursday 24 September 2009
Crown Copyright ©
Lord Justice Dyson:
"STATEMENT OF OFFENCE
Failing to discharge a duty in the conduct of an undertaking, to ensure the safety of persons not in their employment, contrary to section 3(1) and section 33(1)(a) of the Health and Safety at Work etc Act 1974.
PARTICULARS OF OFFENCE
ELECTRIC GATE SERVICES LIMITED between the 1st day of August 2004 and the 14th day of April 2006, as an employer, failed to conduct its undertaking, namely the construction and installation of a pair of electrically powered entrance gates, in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment who might be affected thereby, including JK, were not exposed to risks to their health and safety."
"(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their health or safety."
Section 40 provides:
"In any proceedings for an offence under any relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something .....so far as is reasonably practicable....., it shall be for the accused to prove (as the case may be) that it was not....reasonably practicable to do more than was done to satisfy the duty or requirement..."
"I thought the pillar would be built straight upwards and with the gates closed the gap between the heel of the gate and the face of the pillar would have been substantially less than in fact turned out to be the case. The dimension of the gap that I envisaged would not have allowed anyone to fit their head through the gap as happened in the accident."
The ruling on count 3
"In order to engage section 3, the prosecution must prove against each defendant to the criminal standard that:"
(a). There was a material risk to JK and/or to the other non-employees' health and safety which any reasonable company in the defendant's position would appreciate and take steps to guard against ("appreciable and foreseeable risk") and
(b). JK and/or any other non-employee was exposed to that risk by the manner in which the defendant conducted the construction and installation of the gates ("the connection or causation").
"Whilst undoubtedly, the accessibility of the egress button played a material part in the accident, the question arises whether, to P, it represented an appreciable risk. On its own, probably not, given there were several alternative methods to gain entry legitimately. Dr Swan's opinion that the button should have been on a post was based only on norms and standards relating to dangerous machinery generally, there being no regulations or guidance about the positioning of gate buttons."
"39. The prosecution cannot, in my view, satisfactorily establish a connection between EGS conduct and the accident or that the risk was foreseeable in their case or that it should have been foreseeable. It was too remote."
40. Looking at the case against EGS on count 3 in the round, and applying the Galbraith test, in my judgement there is insufficient evidence, taking the prosecution case at its highest, upon which a jury properly directed could properly convict and I will in due course direct the jury to return a not guilty verdict."
"For these reasons I would reject Mr Lissack's primary submission that sections 2(1) and 3(1) require the prosecution to identify and prove the acts and omissions by which it is alleged that there was a breach of the duty to achieve or prevent the result that they describe. What the prosecution must prove is that the result that those provisions describe was not achieved or prevented. Once that is done a prima facie case of breach is established. The onus then passes to the defendant to make good the defence which section 40 provides on grounds of reasonable practicability. A contrast may be drawn with sections 4 to 6, which set out a series of more particular measures that must be taken. Where breaches of those sections are alleged, the respects in which there was a breach must be identified."
"Mr Lissack then said that it was not enough for the prosecution simply to assert that a state of affairs existed. This proposition raises the issue of prosecution practice. As I have said, the statute prescribes the result that must be achieved. That is one thing. How the prosecution proposes to prove that this was so is another. The situation will vary from case to case. In cases such as the present, where a person sustains injury at work, the facts will speak for themselves. Prima facie, his employer, or the person by whose undertaking he was liable to be affected, has failed to ensure his health and safety. Otherwise there would have been no accident. But a case where the alleged risk has not had this result cannot be dealt with so easily. It will be necessary to identify and prove the respects in which there was a breach of duty. This is likely to require more by way of evidence than simply an assertion that that state of affairs existed. The particular risk to which the employees, or the persons referred to in section 3(1) as the case may be, were exposed must be identified. This will require an analysis of the facts in each case. Even where an injury has occurred it may not be enough for the prosecutor simply to assert that the injury demonstrates that there was a risk. Where a prosecution is brought under section 3(1), it may be necessary to identify and prove the respects in which the injured person was liable to be affected by the way the defendant conducted his undertaking"
"The question then is whether this approach to the legislation is proportionate. The first point to be made is that when the legislation refers to risks it is not contemplating risks that are trivial or fanciful. It is not its purpose to impose burdens on employers that are wholly unreasonable. Its aim is to spell out the basic duty of the employer to create a safe working environment. This is intended to bring about practical benefits, bearing in mind that this is an all-embracing responsibility extending to all workpeople and all working circumstances: Robens report, para 130. The framework which the statute creates is intended to be a constructive one, not excessively burdensome. In R v Porter  ICR 1259, the Court of Appeal set aside the conviction of the headmaster of a school where one of his pupils lost his footing on a step which gave access from one playground to another while he was unsupervised, with tragic consequences. It held that there was no evidence that the conduct of the school had exposed the child to a real risk: para 22. The situation was not such as to give rise to a risk of the type that section 3 identifies: para 25. That was an exceptional case, but it makes an important point. The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material. That, in effect, is what the work "risk" which the statute uses means. It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against. "
"STATEMENT OF OFFENCE
Supplying machinery which did not comply with the requirements of Regulation 12 of the Supply of Machinery (Safety) Regulations 1992 contrary to Regulations 11 and 29 of the Supply of Machinery (Safety) Regulations 1992 and section 2(2) of the European Communities Act 1972.
PARTICULARS OF OFFENCE
EGS LIMITED between the 1st day of May 2005 and the 14th day of April 2006, being a responsible person, supplied relevant machinery which failed to comply with the requirements of Regulation 12, namely, that the relevant machinery satisfied the relevant essential health and safety requirements."
"55. Although the burden of establishing this lies with the defendant, one has to ask at this stage what evidence the prosecution have adduced to establish that he did not exercise due diligence.
56. On count 4, it is arguable that, given the stage he entered the work and the nature of his contribution, he did all that was reasonable, and on that basis, in my view, it would be unsafe to leave the matter to the jury."
"In relation to count 4, if it is established to the necessary standard that the Defendant was "the responsible person" under the regulations, then the Defendant will aver that it took all reasonable steps and exercised all due diligent (sic) to avoid committing the offence(s)".
This was inadequate. It did not put the prosecution on notice of the case it had to meet in relation to the regulation 31(1) defence.
Some observations on prosecution practice