No: 200703057/C5 
Neutral Citation Number: [2007] EWCA Crim 1937
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 11th July 2007

B e f o r e:

LORD JUSTICE LATHAM
(Vice President of the Court of Appeal Criminal Division) 

MR JUSTICE PITCHFORD 
 
MR JUSTICE ROYCE 
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R E G I N A 

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MR R EASTMAN appeared on behalf of the Applicant 

MR O NSUGBE QC AND MR R MATTHEWS appeared on behalf of the Crown 
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J U D G M E N T
1.	THE VICE PRESIDENT:  This is an appeal by the prosecution under section 35(1) of the Criminal Procedure and Investigations Act 1996 with leave of the trial judge.  The appeal relates to a preliminary ruling at a preparatory hearing given by the judge in relation to charges contained in an indictment which are under the Health and Safety at Work Act 1974.  The first two counts in the indictment are counts which charged P Limited with offences under section 33(1)(a) of that Act, and the third and fourth counts in the indictment charged the respondent to these proceedings, Mr G, with two counts of contravening section 37(1) of that Act.
2.	The proceedings arise out of a tragic accident at the docks when a six year old boy was thrown from a fork‑lift truck, upon which he was being carried as a passenger, when it collided with a second truck which was "riding reel", which is the description given to a practice of carrying a third and unclamped newspaper reel on the top of two clamped reels.  This practice alleged to be obviously dangerous.  The prosecution in the trial allege that it was commonplace at the docks and that Mr G, as managing director of the company and chair of their Strategic Health and Safety Management Committee, who had ultimate responsibility for ensuring that the company employed safe systems of work, was accordingly guilty on the basis that the breaches by the company of its statutory duties had arisen by reason of his consent or connivance, or were attributable to his neglect. 
3.	The section in question, section 37, is a section which involves consideration of the secondary or ancillary liability of the person charged, the primary liability being that of the company under the sections of the Health and Safety at Work imposing primary liability on it.
4.	As far as the issue with which we are concerned has been identified in the papers before us, it can, in one sense, be reduced to one simple point arising out of the ruling that the judge gave as to the meaning which he considered should be given to the concept of neglect in section 37 of the Act.
5.	As we have indicated, the charge, following the wording of the section, charged him in the following terms, that "being the managing director of P Limited ... suffered that body corporate ... to commit an offence pursuant to section 2(1) of the Health and Safety at Work Act, contrary to section 33(1)(a) of that Act as amended, with his consent and/or connivance and/or by his neglect".
6.	The problem relates to the ruling that the judge gave as to what the prosecution would have to prove in relation to neglect.  
7.	The relevant passage of the ruling that he gave is said as follows:
"Therefore I rule that where 'neglect' is relied on the following elements have to be proved: 
1.  That P Limited committed a breach of sections 2 and/or 3 of HSWA 1974.
2.  The defendant Mr G had a duty to inform himself of the facts giving rise to the breach or breaches, and did know of the material facts.
3.  The defendant Mr G had a duty to act in relation to those facts.  
4.  The defendant Mr G was neglectful of his duty in the sense that he either knew or ought to have known but shut his eyes to the fact that there were reasonable practical steps he could have taken but which he did not.
5.  That his neglect of duty caused or contributed to the company breaching its duty under section 2 or 3."
8.	On behalf of the prosecution Mr Nsugbe QC submits that the judge erred in requiring the prosecution to establish that the defendant "did know of the material facts" in paragraph 2 of that ruling.  He submits that the duty of the prosecution in relation to a charge under this section is properly set out in the only decision relating to this section which has so far been before an appellate court and that is Wotherspoon v HM Advocate [1978] JC 74.  In that case, the Lord Justice‑General, at page 78, said as follows:
"Upon the question of the interpretation of the word 'neglect' we do not detect in the competing arguments any material difference of approach.  On both sides it is accepted, correctly, that the word 'neglect' in its natural meaning pre‑supposes the existence of some obligation or duty on the part of the person charged with neglect.  Where that word appears in section 37(1) it is associated with certain specified officers of a body corporate or with persons 'purporting to act in any such capacity'.  It is any neglect on their part to which the commission of an offence within a specified category by a body corporate is attributable which attracts the penal sanction.  As we read the subsection and also section 37(2) which deals with the case of a body corporate, the affairs of which are managed by its members, it seems clear that the section as a whole is concerned primarily to provide a penal sanction against those persons charged with functions of management who can be shown to have been responsible for the commission of a relevant offence by an artificial persona, a body corporate.  Accordingly, in considering in a given case whether there has been neglect within the meaning of section 37(1) on the part of a particular director or other particular officer charged, the search must be to discover whether the accused has failed to take some steps to prevent the commission of an offence by the corporation to which he belongs if the taking of those steps either expressly falls or should be held to fall within the scope of the functions of the office which he holds.  In all cases accordingly the functions of the office of a person charged with a contravention of section 37(1) will be a highly relevant consideration for any judge or jury and the question whether there was on his part, as the holder of his particular office, a failure to take a step which he could and should have taken will fall to be answered in the light of the whole circumstances of the case including his state of knowledge of the need for action, or the existence of a state of fact requiring action to be taken of which he ought to have been aware."
9.	We do not consider that we can give any better a description of the requirements of the section than that.  
10.	The problem in the present case appears to have arisen because the judge had been taken to certain passages in the ruling given by MacKay J in the prosecution of those who were said to have been responsible for the Hatfield rail crash, which would appear to impose on the prosecution a higher standard of proof.  The passage in question comes at page 94 and refers, in the first instance, to the fact that the Act in question followed on a White Paper, which was a report of a committee chaired by Lord Robens on Safety and Health at Work, within which the recommendation was made that prosecutions should only be brought where there were offences of a flagrant, wilful or reckless nature.  Having noted that Parliament had not chosen to adopt those words, MacKay J then went on to consider the circumstances in which the prosecution could properly ask for a conviction in relation to neglect.  
11.	Having cited the passage to which we have referred in Wotherspoon, he went on:
"In my judgment 'ought to have been aware' in this passage must have been construed in the sense of turning a blind eye in circumstances where the defendant had suspicion or belief as to the material facts but, because he feared the answer might be unpalatable, he did not want to know more.  This is the sense in which it is described in Manifest Shipping v Uni‑Polaris Insurance Co Limited [2003] 1 AC 46. It is a subjective test and not equivalent to inadvertence, laziness or even gross negligence.  I believe this is the correct test to adopt in these counts at this stage and for the purpose of these applications."
12.	With great respect to MacKay J, it seems to us that he places the burden too high.  The section in the Act does not refer, for example, to wilful neglect.  Nor did Wotherspoon in any way suggest that the question is whether the defendant in question ought to have been aware in the sense that he had "turned a blind eye".  That equates the test in relation to neglect into the same test that is to be applied when the allegation is connivance.  Parliament has chosen quite plainly that there should be a distinction between consent, connivance and neglect.  
13.	The question, at the end of the day, will always be, as the Lord Justice General said in Wotherspoon, whether or not it is proper, where there is no actual knowledge of the state of facts, nonetheless the officer in question of the company should have, by reason of the surrounding circumstances, been put on enquiry so as to require him to have taken steps to determine whether or not the appropriate safety procedures were in place.  That will depend in every case on the evidence put forward by the prosecution in the first instance, and, if there is sufficient evidence to justify the matter going to the jury, the overall evidence, including that of the defendant, at the end of the trial.
14.	In the present case it may well be that in order to establish that there is any case to go before the jury the prosecution will have to establish that Mr G did know of the practice in question and its dangers.  But the prosecution does not have to prove that if there were circumstances which ought to have put him on enquiry as to that practice, that may be sufficient to require an answer from Mr G.  That is a question, therefore, which can only be answered at the end of the prosecution case.  The ruling of the judge at the preliminary stage was accordingly too prescriptive.  
15.	The prosecution complain simply and solely of the passage in paragraph 2, as we have said, "and did know the material facts".  With the abstraction of those words we consider that the judge's direction would be entirely appropriate to the facts as we know them of this case.
16.	It follows that the appeal is allowed to the extent indicated.  We do not think that it is necessary for us to go any further by way of elucidation of the necessary ingredients of the offence in question.
17.	MR NSUGBE:  My Lord, can I raise two matters?  The first is that I have been asked by those responsible for reporting cases whether this is an appropriate case to lift reporting restrictions.  We submit that it is, subject to, perhaps, the identification of the parties being restricted to initials perhaps.  But other than that, my Lord, on their behalf I ask for reporting restrictions to be lifted.  
18.	THE VICE PRESIDENT:  Mr Eastman.
19.	MR EASTMAN:  With the caveat my learned friend referred to, absolutely no objection whatever.  
20.	THE VICE PRESIDENT:  Certainly I can see no objection to it being reported with initials.  
21.	MR NSUGBE:  I am grateful.  Thank you, my Lord.
22.	The second matter relates to the costs of the appeal.  We make the application for the costs of this appeal payable by the respondent.  I know your Lordships may order, alternatively, costs in the case, but we do make the application.
23.	THE VICE PRESIDENT:  I think this matter ought to be dealt with by the trial judge ‑‑
24.	MR NSUGBE:  I am grateful.
25.	THE VICE PRESIDENT:  ‑‑ ultimately.  Would you be content with that, Mr Eastman?
26.	MR EASTMAN:  Yes.
27.	MR NSUGBE:  Thank you, my Lords.